Mid-Con Cables, Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1127 (N.L.R.B. 1982)

MID-CON CABLES, INC.
Mid-Con Cables, Inc. and District No. 174, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 17-CA-10742
May 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMI RMAN
Upon a charge filed on December 2, 1981, by
District No. 174, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, herein
called the Union, and duly served on Mid-Con
Cables, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 17, issued a com-
plaint on February 8, 1982, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 November
12, 1981, following a Board election in Case 17-
RC-9075, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about November
24, 1981, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On Febru-
ary 18, 1982, Respondent filed its answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint.
On March 4, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 8,
1982, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
I Official notice is taken of the record in the representation proceed-
ing, Case 17-RC-9075, as the term "record" is defined in Secs. 102 68
and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended
See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec 9(d) of the NLRA, as amended
261 NLRB No. 164
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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
Respondent's answer admits the Union's request
and its refusal to bargain and to furnish information
which is necessary and relevant to the Union's role
as exclusive bargaining representative, but, in sub-
stance, attacks the validity of the Union's certifica-
tion on the basis of its objections to the election in
the underlying representation proceeding. 2 The
General Counsel argues that all material issues
have been previously decided. We agree with the
General Counsel.
Our review of the record herein, including the
record in Case 17-RC-9075, reveals that on
August 29, 1980, pursuant to a Stipulation for Cer-
tification Upon Consent Election, an election was
held among the employees in the stipulated unit.
The tally of ballots shows that of approximately
147 eligible voters, 78 cast valid ballots for, and 59
against, the Union; there were 2 challenged ballots,
an insufficient number to affect the results of the
election. After conducting a hearing on Respond-
ent's objections, the Hearing Officer, on October
24, 1980, issued his report recommending that the
objections to the election be overruled. Thereafter,
Respondent filed exceptions to the Hearing Offi-
cer's recommendation that its objections be over-
ruled. On June 18, 1981, the Board remanded the
proceeding to the Hearing Officer to reopen the
hearing for the limited purpose of permitting Re-
spondent an opportunity to cross-examine, or to
call as its own witness, employee Diana Green. 3
Thereafter, the Hearing Officer reaffirmed his earli-
er report and, having considered testimony at the
reopened hearing, issued a supplemental report on
objections recommending that Respondent's objec-
tions be overruled. Respondent filed exceptions to
the Hearing Officer's supplemental report. On No-
vember 12, 1981, the Board adopted the Hearing
Officer's recommendation and certified the Union
2 The record reveals that by letters dated November 17, 1981, and No-
vember 23, 1981, the Union requested Respondent to recognize it and
bargain with it as the collective-bargaining representative of Respond-
ent's employees and to furnish it with certain information relating to
wages and terms and conditions of employment By return letter dated
November 24, 1981, Respondent acknowledged receipt of the Union's
bargaining demand and stated that "lilt is inappropriate for us to plan on
any bargaining at this time, or to consider your other requests for de-
tailed information about Mid-Con employees."
3 256 NLRB 720 (1981).
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive bargaining representative of the
employees in the stipulated unit.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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 Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding.
Further, there are no factual issues regarding the
Union's request for information since Respondent,
by its letter of November 24, 1981, admitted that it
refused to furnish the Union with such information.
We therefore find that Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. Accordingly, we grant
the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. rHE BUSINESS OF RESPONDI NT
Respondent is, and has been at all times material
herein, a California corporation, with an office and
place of business located at Joplin, Missouri, where
it is engaged in the manufacture of telephone
switching equipment. Respondent annually pur-
chases goods and services valued in excess $50,000
directly from sources located outside the State of
Missouri.
We find, on the basis of the foregoing, that Re-
spondent 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 INVOI.VED
District No. 174, International Association of
Machinists and Aerospace Workers, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
4 See Pittsburgh Plate Glass Co. v N.L.R.B, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102 67(f) and 102.6 9(c)
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by Mid-Con Cables, Inc. at their
Joplin, Missouri facility located at 2500 Davis
Boulevard, including quality control and ship-
ping and receiving employees, but excluding
office clerical employees, all salaried employ-
ees of the quality control, shipping and receiv-
ing and engineering departments, professional
employees, guards and supervisors as defined
in the Act.
2. The certification
On August 29, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 17, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on November 12, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 17, 1981,
and at all times thereafter, the Union has requested
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 November 24, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
November 24, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
1128
MID-CON CABLES, INC.
IV. THE. i. FFICT OF THE UNFAIR I.ABOR
PRACTIICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THIE. REMEI)Y
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, and to provide the Union, upon request,
information necessary for collective bargaining.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company. Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Mid-Con Cables, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. District No. 174, 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
employed by Mid-Con Cables, Inc. at their Joplin,
Missouri facility located at 2500 Davis Boulevard,
including quality control and shipping and receiv-
ing employees, but excluding office clerical em-
ployees, all salaried employees of the quality con-
trol, shipping and receiving and engineering de-
partments, professional employees, guards and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since November 12, 1981, 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 November 24, 1981,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, and to
furnish the Union with information that is relevant
and necessary to its role as the exclusive bargaining
representative, Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
Mid-Con Cables, Inc., Joplin, Missouri, 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. 174,
International Association of Machinists and Aero-
space Workers, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees
employed by Mid-Con Cables, Inc. at their
Joplin, Missouri facility located at 2500 Davis
Boulevard, including quality control and ship-
ping and receiving employees, but excluding
office clerical employees, all salaried employ-
ees of the quality control, shipping and receiv-
ing and engineering departments, professional
employees, guards and supervisors as defined
in the Act.
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to provide the above-named Union,
upon request, information necessary for the pur-
pose of collective bargaining.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement, and provide the
Union, upon request, information necessary for the
purpose of collective bargaining.
(b) Post at its Joplin, Missouri, facility copies of
the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
' 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 L.abor Relations Board" shall read "Posted Pursu-
ant To a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOrTIcI, To EMPI OYF. .S
POSTED BY ORDER OF THE
NATIlIONAI LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WIlI. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with District No. 174, International Associ-
ation of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
WI WILI NOT refuse to provide the Union,
upon request, information necessary for the
purpose of collective bargaining.
WE WIILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WI wll.nl, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employ-
ees employed by Mid-Con Cables, Inc. at
their Joplin, Missouri facility located at 2500
Davis Boulevard, including quality control
and shipping and receiving employees, but
excluding office clerical employees, all sala-
ried employees of the quality control, ship-
ping and receiving and engineering depart-
ments, professional employees, guards and
supervisors as defined in the Act.
WE WILL.., upon request, furnish the Union
with the information it requested by letter
dated November 17, 1981, which information
is relevant and necessary to the Union's role as
the exclusive bargaining representative of the
employees in the bargaining unit described
above.
MID-CON CABLES, INC.
1130