Lube Devices, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1973

201 N.L.R.B. 914 (N.L.R.B. 1973)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lube Devices, Inc. and District No. 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 30-CA-2081
February 16, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on August 25, 1972, by District
No. 10, International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the
Union, and duly served on Lube Devices, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 30, issued a complaint
on September 21, 1972, against Respondent, alleging
that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 14,
1972, following a Board election in Case
30-RC-1539 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; I
and that, commencing on or about August 23, 1972,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On September 27, 1972,
Respondent filed its answer to the complaint
admitting in part, and denying in part, and not
answering in part, the allegations in the complaint.
On October 18, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 25,
1972, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I Official notice is taken of the record in the representation proceeding.
Case 30-RC-1539, as the term "record" is defined in Secs 102 68 and
102.69(1) of the Board 's Rules and Regulations , Series 8, as amended See
LTV Elecrrosyrtents, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice to Show Cause, the Respondent denies the
validity of the Union's certification as exclusive
bargaining representative of the employees in the
stipulated appropriate unit because the Board erro-
neously overruled the challenges to the ballots of
three terminated employees and improperly counted
their ballots in determining the Union's majority.
Upon our review of the record, including the records
in Cases 30-RC-1539 and 30-CA-1641, we find no
merit in the Respondent's position.
The record shows that, pursuant to a Stipulation
for Certification Upon Consent Election, an election
was conducted on August 20, 1971, among the
employees in the stipulated unit. The tally of ballots
reflects that 9 votes were cast for, and 11 against, the
Union, with 3 ballots challenged by the Respondent
on the ground that the three employees, including
John Van Ells, had been validly terminated prior to
the election. The Union, however, had filed unfair
labor practice charges in Case 30-CA-1641 alleging
that the three employees had been discriminatorily
discharged by the Respondent and therefore, it was
argued, these employees were eligible to vote.
Concluding that the issues as to the validity of the
challenges were the same as those to be resolved in
the unfair labor practice proceeding, the Regional
Director, on September 3, 1971, issued an order
consolidating for hearing Cases 30-CA-1641 and
30-RC-1539.
Thereafter, on February 10, 1972, the Administra-
tive Law Judge issued his Decision finding, inter alia,
that the three employees had been illegally dis-
charged and that they were eligible to vote in the
election and recommending that their ballots be
opened and counted. The Respondent filed excep-
tions to the Administrative Law Judge's Decision.
Subsequently, on June 20, 1972, the Board issued its
Decision and Order in which it adopted the Adminis-
trative Law Judge's Decision and remanded Case
30-RC-1539 to the Regional Director to open and
count the three challenged ballots and thereafter to
issue the appropriate certificate.2 Pursuant to the
Board's direction and over objections of the Respon-
dent that the appropriate circuit court of appeals had
not adjudicated the eligibility issue , the three
Golden Age Beverage Co., 167 NLRB 151, Intertype Co v Penello, 269
F Supp 573 (D C Va., 1967), Follett Corp, 164 NLRB 378, enfd. 397 F 2d
91 (C.A 7, 1968); Sec 9(d) of the NLRA
2 197 NLRB No. 122
201 NLRB No. 117
LUBE DEVICES, INC.
challenged ballots were opened and counted and a
revised tally of ballots issued on August 8, 1972. The
tally showed that 12 votes were cast for, and 11
against the Union. Accordingly, on August 14, 1972,
the Acting Regional Director certified the Union as
the exclusive bargaining representative in the stipu-
lated unit.3
On September 12, 1972, the Respondent filed a
motion for rehearing and to reopen the record in
Cases 30-CA- 1641 and 30-RC- 1539 contending that
it had newly discovered evidence relating to the
testimony of employee Van Ells which became
available since the close of the hearing and which, if
adduced and credited, would require a different
result . The General Counsel filed opposition to the
motion. On October 6, 1972, the Board denied the
Respondent's motion as lacking in merit.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.4
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence,5 nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.6
Although the Respondent had previously raised in
the representation case a similar issue with respect to
the challenged ballots, it argues now that the Board
should not apply its current policy of issuing a
bargaining order where, as here, the Respondent's
obligation to bargain with the Union is dependent
upon the resolution of the unfair labor practice
proceeding in Case 30-CA-1641, which is presently
pending enforcement in the United States Court of
Appeals for the Seventh Circuit. It suggests that a
hearing be held, or arguments solicited, to enable the
Board to formulate an interim and conditional Order
or remedy which will reflect the realities of the
3 By letter dated August 14 , 1972, the Respondent reiterated its
objections to the opening and counting of the ballots. The Acting Regional
Director informed the Respondent by letter dated August 15 , 1972, that the
objections were untimely filed under Section 102.67(g) of the Board 's Rules
and Regulations , Series 8, as amended.
4 See Pittsburgh Plate Glass Co v. NLRB., 313 U.S. 146, 162 ( 1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
S In its answer to the complaint and response to the Notice to Show
Cause, the Respondent argues again the issue of newly discovered evidence
with respect to the testimony of Van Ells originally raised in its motion for
rehearing and reopening of the Record . As indicated above, the Respon-
915
situation pending judicial determination . We have
considered the Respondent 's arguments and the
realities of the situation and have concluded that
they do not warrant departure from our present
policy of processing our 8 (a)(5) Summary Judgment
proceedings to a conclusion pending court adjudica-
tion of a related Board unfair labor practice
proceeding .? We shall, accordingly , grant the Motion
for Summary Judgment.
On the basis of the entire record , the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin Corporation is
engaged in the manufacture of lubrication devices at
its plant located at Manitowoc, Wisconsin. During
the past calendar year , a representative period, the
Respondent sold and shipped goods valued in excess
of $50,000 in interstate commerce to points located
outside the State of Wisconsin.
We find , on the basis of the foregoing, that
Respondent is, and has been at all times material
herein , an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
District No. 10, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees;
excluding office clerical employees, professional
dent 's proffered evidence was previously rejected as lacking in merit in the
Board 's denial of Respondent 's motion . Since the evidence only goes to the
support of a previously rejected defense , the Respondent's argument is
without merit.
9 The Respondent failed to answer the allegations of the complaint
relating to the filing and service of the charge, the Respondent 's commerce
data , its status as an employer in commerce, the Union 's status as a labor
organization , the status of Respondent 's president , Gus J. Lukas, as its
agent and supervisor , and the Union 's request to bargain. These allegations,
therefore , are deemed to have been admitted and found to be true.
7 Great Dane Trailers, Inc., 191 NLRB No. 8.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , guards and supervisors as defined in
the Act.
2. The certification
On August 20, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 30 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on August 14, 1972, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about August 14, 1972, more
particularly on August 17 and 21, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about August 23, 1972, and continu-
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since August 23, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd . 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Lube Devices, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. District No. 10, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees;
excluding office clerical employees , professional
employees, guards and supervisors as defined in the
Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since August 14, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about August 23, 1972, and
at all times thereafter , to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain , Respon-
dent has interfered with, restrained , and coerced, and
is interfering with , restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(aX I) of the Act.
7. The aforesaid unfair labor practices are unfair
LUBE DEVICES, INC. 917
labor practices affecting commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Lube Devices, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with District No. 10,
International Association of Machinists and Aeros-
pace Workers, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All production and maintenance employees;
excluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its plant at Manitowoc, Wisconsin,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 30 after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with District
No. 10, International Association of Machinists
and Aerospace Workers, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union , as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment , and, if an understanding is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All production and maintenance employees;
excluding office clerical employees , profes-
sional employees , guards and supervisors as
defined in the Act.
LUBE DEVICES, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-244-3861.