Rucker Electronics

National Labor Relations Board - Board Decisions

Aug 26, 1974

213 N.L.R.B. 68 (N.L.R.B. 1974)

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rucker Electronics and Local Union 2131 , Internation-
al Brotherhood of Electrical Workers, AFL-CIO.
Case 20-CA-9110
August 26, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Upon a charge filed on April 12, 1974, by Local
Union 2131, International Brotherhood of Electrical
Workers, AFL-CIO, herein called the Union, and
duly served on Rucker Electronics, herein called the
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 20, issued a complaint on April 30, 1974,
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 Nation-
al 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 com-
plaint alleges in substance that on April 2, 1974, fol-
lowing a Board election in Case 20-RC-11243 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about April 9, 1974, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
May 9, 1974, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint.
On May 17, 1974, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 22, 1974, 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. Respondent thereafter filed a response to
Notice To Show Cause, entitled "Answer to Notice
To Show Cause and Request for Oral Argument."
Pursuant to the provisions of Section 3(b) of the
' Official notice is taken of the record in the representation proceeding,
Case 20-RC-11243, as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 , enfd. 388 F.2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5. 1969);
Intertype Co. v. Penello, 269 F.Supp . 573 (D.C. Va., 1967); Follett Corp., 164
NLRB 378, enfd. 397 F2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated it author-
ity 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, in its answer to the complaint and
response to the Notice To Show Cause, asserts that
the certification issued the Union in the underlying
representation case was invalid due to misconduct by
the Union and a Board agent which destroyed the
laboratory conditions of the election, and that the
Board erred in not sustaining its objections and ex-
ceptions on these grounds, by not ordering a hearing
on all its objections, and by not providing it with
subpenas to aid it in preparing its case.
Review of the record herein, including the record in
Case 20-RC-11243, reveals that an election, conduct-
ed pursuant to a Stipulation for Certification Upon
Consent Election on May 31, 1973, resulted in a 134-
to-101 vote in favor of the Union, with 2 challenged
ballots. Respondent filed some 28 timely objections to
conduct affecting the results of the election, alleging
in substance that the Union had engaged in threats,
promises of benefit, and misrepresentations, had cre-
ated a "carnival atmosphere" about the election, and
had engaged in electioneering at the polls. Respon-
dent further alleged that a Board agent had prejudi-
cially affected the results of the election by requiring
its election observer to remove a partisan insignia,
distributed an outdated form, mishandled a chal-
lenged ballot, miscounted identifiable ballots, and re-
fused to recount the ballots for a fourth time at the
insistence of Respondent.
After investigation, the Regional Director issued
his Report on Objections, in which he found, inter
alia, that the objectionable conduct alleged in a great
majority of the objections was within acceptable lim-
its in a vigorously contested election such as this, and
that the conduct of the Board agent was not prejudi-
cial, and, accordingly, he recommended that these
objections be overruled. However, with regard to
Respondent's Objections 5, 7, 13, and 20, concerning
threats, coercion, and electioneering in the polling
area , the Regional Director found that substantial
factual issues had been raised and ordered a hearing
to be held thereon.
Respondent thereafter timely filed 190 exceptions
to this report, basically assigning error to the Regional
Director's findings, recommendations, and various
2 The Respondent 's request for oral argument is denied as the General
Counsel's motion and the Respondent's response to the Notice To Show
Cause adequately present the positions of the parties.
213 NLRB No. 20
RUCKER ELECTRONICS 69
rulings, including his failure to order a hearing on all
the objections and to provide a subpena to aid Re-
spondent in the preparation of its case. The Board, on
October 5, 1973, issued a Decision and Order finding
that the Respondent's exceptions raised no material
or substantial issues of fact or law which warranted
the reversal of these findings and recommendations,
or which required expanding the scope of the hearing
beyond that set by the Regional Director. According-
ly, it adopted the Regional Director's findings, con-
clusions, and recommendations.
Thereafter, on December 26, 1973, the Respondent
filed with the Board a motion for reconsideration and
to reopen the record to take evidence on three other
of the Respondent's objections concerning the
Union's alleged offer to waive initiation fees, in light
of the decision of the Supreme Court in N.L.R.B. v.
Savair Manufacturing Company, Inc., 414 U.S. 270
(1973). The Board, on January 14, 1974, denied this
motion as lacking in merit.
Concurrent with the above proceeding, a hearing
was held before a duly designated Hearing Officer on
Respondent's Objections 5, 7, 13, and 20 concerning
threats and electioneering. In his report, the Hearing
Officer found that the alleged threats had not oc-
curred except for a single isolated one which was so
inconsequential as to not have affected the election.
Accordingly, he recommended that these objections
be overruled. With regard to union electioneering, the
Hearing Officer found that the employee involved
was not a union agent whose conduct was attributable
to the Union and recommended that this objection be
overruled and the Union be certified. Respondent
filed timely exceptions to this report, arguing that the
Hearing Officer had erroneously assessed the evi-
dence with regard to all the issues before him and
erroneously interpreted Board decisions cited by the
Respondent. The Board, on April 2, 1974, issued a
Supplemental Decision and Certification of Repre-
sentative in which it adopted the Hearing Officer's
findings, conclusions, and recommendations, and cer-
tified the Union.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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?
All issues raised by the Respondent in this proceed-
ing 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
3 See Pittsburgh Plate Glass Co. v. N.L R.B., 313 U .S. 146,162 ( 1941); Rules
and Regulations of the Board , Sees . 102.67(f) and 102 .69(c).
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. We therefore
find that the Respondent has not raised any issue
which is properly litigable in this 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
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation, with its prin-
cipal place of business at Concord, California, is en-
gaged in the manufacture of electronic devices.
During the past year, Respondent, in the course and
conduct of its business operations, sold goods and
supplies valued in excess of $50,000 to firms located
outside the State of California.
We find, on the basis of the foregoing, that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 2131, International Brotherhood of
Electrical 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 consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees,
including assemblers , machine shop employees,
technicians , lead men and lead women , inspec-
tors , quality control employees , maintenance
men, plant clericals , shipping and receiving and
stock room employees; excluding engineers, re-
search and development technicians , line super-
visors, other supervisors as defined by the Act,
professional employees , office clerical employees
and guards as defined by the Act.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On May 31, 1973, a majority of the employees of
Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 20 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on April 2, 1974, 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 April 5, 1974, and at all
times thereafter , the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about April 9, 1974, and continuing at all times there-
after to date, the Respondent has refused, and contin-
ues to refuse, to recognize and bargain with the Union
as the exclusive representative for collective bargain-
ing of all employees in said unit.
Accordingly, we find that the Respondent has,
since April 9, 1974, 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, Respondent has en-
gaged 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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate 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 (C.A. 5
1964), cert. denied 379 U.S. 817 (1964); Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Rucker Electronics is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local Union 2131, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding assemblers, machine shop employees, techni-
cians, lead men and lead women, inspectors, quality
control employees, maintenance men, plant clericals,
shipping and receiving and stock room employees;
excluding engineers, research and development tech-
nicians, line supervisors, other supervisors as defined
in the Act, professional employees, office clerical em-
ployees and guards as defined in the Act, constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Since April 2, 1974, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 April 9, 1974, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 mean-
ing of Section 8(a)(1) of the Act.
RUCKER ELECTRONICS 71
7. The aforesaid unfair labor practices are unfair
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 Rela-
tions Board hereby orders that Respondent , Rucker
Electronics , Concord, California , 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 condi-
tions of employment , with Local Union 2131, Interna-
tional Brotherhood of Electrical Workers , AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
All production and maintenance employees,
including assemblers, machine shop employees,
technicians, lead men and lead women, inspec-
tors, quality control employees, maintenance
men, plant clericals, shipping and receiving and
stock room employees; excluding engineers, re-
search and development technicians, line super-
visors, other supervisors as defined in the Act,
professional employees, office clerical employees
and guards 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 Concord, California, facility copies
of the attached notice marked "Appendix." ° Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
4 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."
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Local
Union 2131, International Brotherhood of Elec-
trical Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner in-
terfere 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 representative 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 understanidng is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees,
including assemblers, machine shop employ-
ees, technicians, lead men and lead women,
inspectors, quality control employees, mainte-
nance men, plant clericals, shipping and re-
ceiving and stock room employees; excluding
engineers, research and development techni-
cians, line supervisors, other supervisors as de-
fined in the Act, professional employees, office
clerical employees and guards as defined in the
Act.
RUCKER ELECTRONICS
(Employer)
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By days from the date of posting and must not be altered,
(Representative) (Title) defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
This is an official notice and must not be defaced Board's Office, 13018 Federal Building, Box 36047,
by anyone. 450 Golden Gate Avenue, San Francisco, California
This notice must remain posted for 60 consecutive 94102 , Telephone 415-556-3197.