Servco Automatic Machine Products Co.

National Labor Relations Board - Board Decisions

Jun 9, 1970

183 N.L.R.B. 149 (N.L.R.B. 1970)

SERVCO AUTOMATIC
Servco Automatic Machine Products Co. and Inter-
national Union , Allied Industrial Workers of
America , AFL-CIO. Case 7-CA-7699
June 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
Upon a charge filed by International Union, Al-
lied Industrial Workers of America, AFL-CIO,
herein called the Union, the General Counsel for
the National Labor Relations Board, by the Re-
gional Director for Region 7, issued a complaint
dated January 19, 1970, against Servco Automatic
Machine Products Co., herein called Respondent,
alleging that the Respondent had engaged in and
was engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended. Copies of the
charge and of the complaint and notice of hearing
were duly served on the Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on October 23,
1969, the Regional Director for Region 7 certified
the Union as the collective-bargaining agent of the
Respondent's employees in the unit found ap-
propriate,' which action was subsequently con-
firmed by the Board, and that since on or about
January 5, 1970, the Respondent has refused and
continues to refuse to engage in collective bargain-
ing with the representative of its employees,
although the Union has requested and is requesting
it to do so. On January 22, 1970, the Respondent
filed its answer, denying the commission of the un-
fair labor practices alleged and raising the following
affirmative defenses:
1. That the decision of the Regional Director is-
sued in its supplemental decision and certification
of representatives was in abuse of discretion not ac-
cording to the law and contrary to the facts.
2. That the Respondent realleges those objec-
tions that it raised with respect to the election of
September 17, 1969, as contained in the attached
"Post Election Objections to Conduct Affecting
Election of September 17, 1969," attached hereto
and incorporated by reference.
On February 2, 1970, the General Counsel filed a
motion to transfer case to and continue proceeding
before the Board and for judgment on the
pleadings, submitting, in effect, that no issues have
been raised by the Respondent in its answer that
have not or could not have previously been litigated
' Supplemental Decision and Certification of Representatives issued Oc-
tober 23, 1969, in Case 7-RC-9539 (not published in NLRB volumes)
2 Although the Respondent was given until February 17, 1970, to show
MACHINE PRODUCTS CO. 149
in the prior representation case (Case 7-RC-9539).
The General Counsel further moved that the Board
issue a decision against the Respondent containing
findings of fact, conclusions of law, and a remedial
order consistent with the conclusion that Section
8(a)(5) and (1) of the Act was violated.
Thereafter, on February 5, 1970, the Board issued
an order transferring the proceeding to the Board
and a notice to show cause in writing, on or before
February 17, 1970, why the General Counsel's mo-
tion for judgment on the pleadings should not be
granted.2
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Judgment on the
Pleadings
The record establishes that on July 30, 1969, the
Union filed a petition in Case 7-RC-9539, seeking
to represent certain employees of Servco Auto-
matic Machine Products Company, herein called
the Respondent or the Employer, at its Inkster,
Michigan, plant.
Pursuant to a Decision and Direction of Election
issued on August 21, 1969, by the Regional
Director for Region 7, a secret ballot election was
conducted among the employees at the Respond-
ent's 2004 Beech Daly Road, Inkster, Michigan,
plant on September 17, 1969, in which, of approxi-
mately 68 eligible voters, 59 cast valid ballots, of
which 34 were for the Union herein, 25 were
against the Union, and 3 were challenged ballots.
The challenged ballots were not sufficient in
number to affect the results of the election.
Thereafter, on September 19, 1969, the Respond-
ent timely filed objections to conduct affecting the
results of the election. After an administrative in-
vestigation, the Regional Director, on October 23,
1969, issued a Supplemental Decision and Certifi-
cation of Representative, in which he overruled the
Employer's objections in their entirety, and issued a
Certification of Representative to the Union herein
as exclusive bargaining representative of the Em-
ployer's employees. The Employer's request for
review of the Regional Director's decision was de-
nied by the Board on December 2, 1969.
On December 3, 1969, and January 5, 1970, the
Union addressed letters to the Respondent
requesting negotiations for a contract, and certain
cause, in writing, why the General Counsel's motion for judgment on the
pleadings should not be granted, the Respondent did not reply
183 NLRB No. 21
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information concerning the names, hiring dates,
wage rates, and classifications of all employees in
the bargaining unit. In response to these requests
the Respondent, by letter dated January 5, 1970,
advised that it would not bargain with the Union
because it intended to seek judicial review of the
Board's Decision with respect to the Respondent's
objections. On January 6, 1970, the Union filed the
charge upon which these proceedings are
predicated.
We find no merit in the Respondent's reiteration
of the objections which the Regional Director over-
ruled in their entirety. Although, thereafter, the
Board denied the Employer's request for review of
the Regional Director's decision,' we have again ex-
amined the Regional Director's Supplemental Deci-
sion and Certification of Representative in Case
7-RC-9539 and made an independent review of
the record and conclude that the Regional
Director's findings were correct. It is well
established that, in the absence of newly discovered
or previously unavailable evidence, a respondent is
not entitled to relitigate in 8(a)(5) proceeding
issues which were or could have been raised in a re-
lated representation proceeding.
As all material issues have been previously de-
cided by the Board, or stand admitted by the failure
of the Respondent properly to controvert the aver-
ments of the General Counsel's motion, there are
no matters requiring a hearing before a Trial Ex-
aminer . Accordingly, the General Counsel's motion
for judgment on the pleadings is granted. On the
basis of the record before it, the Board makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times
material herein, a corporation duly organized and
existing under the laws of the State of Michigan,
where it maintains its only office and place of busi-
ness at 2004 Beech Daly Road in the city of
Inkster, and is engaged in the manufacture, sale,
and distribution of automobile parts, farm imple-
ments, and related products. During the fiscal year
ending July 31, 1969, in the course and conduct of
its business operations, the Respondent purchased
and caused to be delivered to its Inkster plant
materials valued in excess of $800,000 of which
goods and materials valued in excess of $500,000
a In the Regional Director's Supplemental Decision and Certification of
Representative, Case 7-RC-9539, the Regional Director overruled the
Employer's Objections I through 10, and certified the Union The Em-
were delivered to its plant directly from points
located outside the State of Michigan. During the
same period, it manufactured, sold, and distributed
at its Inkster plant products valued in excess of $1
million, of which products valued in excess of
$800,000 were shipped from said plant directly to
points located outside of the State of Michigan.
We find, on the basis of the foregoing, that the
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
International Union, Allied Industrial Workers of
America, 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
At all material times herein, the following em-
ployees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All production and maintenance employees at
the Respondent's 2004 Beech Daly Road,
Inkster, Michigan, plant including shipping and
receiving employees, but excluding all office
clerical employees, professional employees and
guards and supervisors as defined in the Act.
2. The certification
On September 17, 1969, a majority of the em-
ployees of the Respondent in said unit, in a secret
election conducted under the supervision of the Re-
gional Director for Region 7, designated the Union
as their representative for the purposes of collective
bargaining with the Respondent. On October 23,
1969, the Regional Director for Region 7 certified
the Union as the collective-bargaining representa-
tive of the employees in said unit. The Board de-
nied the Respondent's request for review of the cer-
tification, and the Union continues to be such
representative.
ployer's request for review was denied by the Board on the ground that it
raised no substantial issues warranting review
SERVCO AUTOMATIC
B. The Request To Bargain and the Respondent's
Refusal
Commencing on December 3, 1969, and continu-
ing to date , the Union has requested and is
requesting the Respondent to bargain collectively
with it as the exclusive collective -bargaining
representative of all the employees in the above-
described unit . Since January 5 , 1970, and continu-
- ing to date , the Respondent has refused , and con-
tinues to refuse, to bargain collectively with the
Union as the exclusive collective -bargaining
representative of all the employees in said unit.
Accordingly , we find that the Union has been at
all times since October 23, 1969, and now is the ex-
clusive bargaining representative of all the em-
ployees in the above -described unit, within the
meaning of Section 9 ( a) of the Act . We further find
that the Respondent has, since January 5, 1970,
refused to bargain collectively with the Union as
the exclusive bargaining representative of its em-
ployees in the appropriate unit , and that , by such
refusal , the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of-Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above , occurring in connection with its
operations 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
commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
MACHINE PRODUCTS CO. 151
by law, we shall construe the initial period of cer-
tification as beginning on the date Respondent
commences to bargain in good faith with the Union
as the recognized bargaining representative in the
appropriate 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).
CONCLUSIONS OF LAW
1. Servco Automatic Machine Products Co.,
Inkster , Michigan , is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. International Union, Allied Industrial Workers
of America, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees
employed by the Respondent at its Inkster,
Michigan , plant including shipping and receiving
employees , but excluding all office clerical em-
ployees, professional employees and 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 October 23, 1969, 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 January 5, 1970, and
at all times thereafter , to bargain collectively with
the above -named labor organization as the exclu-
sive bargaining representative of all the employees
of the Respondent in the aforesaid appropriate unit,
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By the aforementioned refusal to bargain, the
Respondent has interfered with, restrained, and
coerced , and is interfering with, restraining, and
coercing , its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(1) of
the Act.
7. The aforementioned unfair labor practices are
unfair practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respond-
dent , Servco Automatic Machine Products Co.,
Inkster , Michigan , its officers , agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages , hours and other terms and conditions of em-
ployment, with International Union , Allied Industri-
al Workers of America , AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
employed by Respondent at its Inkster,
Michigan , plant including shipping and receiv-
ing employees , but excluding all office clerical
employees , professional employees and guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the
rights guaranteed them by 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 understandig is reached , embody said un-
derstanding in a signed agreement.
(b) Post at its principal office at Inkster,
Michigan , copies of the attached notice marked
"Appendix ."4 Copies of said notice , on forms pro-
vided by the Regional Director for Region 7, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof , and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered , defaced , or covered by any other
material.
(c) Notify the Regional Director for Region 7, in
writing , within 10 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
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
with International Union , Allied Industrial
Workers of America , AFL-CIO, as the exclu-
sive representative of the employees in the bar-
gaining unit described below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our em-
ployees 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 repre-
sentative of all employees in the bargaining unit
described below , with respect to wages , hours,
and other terms and conditions of employment
and, if an understanding is reached , embody
such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance em-
ployees employed by the Employer at its
Inkster, Michigan , plant including shipping
and receiving employees , but excluding all
office clerical employees , professional em-
ployees and guards and supervisors as
defined in the Act.
SERVCO AUTOMATIC
MACHINE PRODUCTS CO.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washing-
ton Boulevard, Detroit, Michigan 48226,
Telephone 313-226-3200.