Superior Industries International, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 320 (N.L.R.B. 1989)

320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Superior Industries International , Inc. and Interna-
tional Union , United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, UAW, Amalgamated Local No. 645. Case
31-CA-17361
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 3, 1988, the General Counsel of
the National Labor Relations Board issued a com-
plaint alleging that the Respondent had violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by eliminating bargaining unit positions
and subcontracting unit work, without prior notice
to the Union and without having afforded the
Union an opportunity to negotiate and bargain as
the exclusive collective -bargaining representative
of the Respondent 's employees ; and by refusing the
Union's request to bargain and to furnish informa-
tion.' The Respondent filed an answer in which it
either denied the complaint allegations or stated
that it was without knowledge of the allegations.
On January 17, 1989, the General Counsel filed a
Motion to Strike Portions of the Respondent's
Answer and for Partial Summary Judgment. On
January 23, 1989 , the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be
granted . The Respondent filed a response. The
Charging Party filed a response and a brief in sup-
port of the General Counsel 's Motion to Strike and
for Partial Summary Judgment.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on the Motion to Strike Portions of the
Respondent's Answer and for Partial Summary
Judgment
The General Counsel requests that the portions
of the Respondent's answer responding to com-
plaint allegations 1, 2, 3, 4, 6, 7, and 8 be stricken,
as well as the Respondent 's "affirmative defenses"
in paragraph 2, page 1, and in paragraph 3, page 2,
of its answer , under Sections 102.20 and 102.21 of
the Board 's Rules and Regulations . Section 102.20
of the Board 's Rules and Regulations provides as
follows:
We take administrative notice of the unpublished Decision and Certi-
fication of Representative issued on May 21 , 1987 (Case 31-RC-5728),
and of Superior Industries , 289 NLRB 834 (1988), Superior I (Case 31-
CA-16587), in which the Board affirmed the certification.
The respondent shall, within 14 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
Section 102.21, in pertinent part, states "[i]f an
answer . . . is signed with intent to defeat the pur-
pose of this rule, it may be stricken as sham and
false and the action may proceed as though the
answer had not been served." In DPM of Kansas,
Inc., 261 NLRB 220 fn. 2 (1982), cited with ap-
proval in M. J. Santulli Mail Services, 281 NLRB
1288, 1290 (1986), the Board noted that Section
102.20 was "qualified by Section 102.21 to the
extent that an answer may be stricken if it is a
sham and false, in which event the action may pro-
ceed as though the answer had not been served."
Paragraph 1 of the complaint alleges that the
charge in this case was filed by the Union on Sep-
tember 22, 1988, and that a copy was served on the
Respondent by certified mail about September 24,
1988. The Respondent stated that it was without
knowledge of the truth of the allegation. As exhib-
its attached to the Motion for Partial Summary
Judgment, the General Counsel has provided
copies of the charge, the notice and acknowledg-
ment of filing of charge, and a photocopy of the
signed postal return receipt No. 583363657 (Exh.
D). In its response to the Notice to Show Cause,
the Respondent stated that the documents compos-
ing Exhibit D are "unauthenticated." We find that
the Respondent has not controverted the docu-
ments in Exhibit D and thus the exhibit is deemed
to be true and establishes the filing and service of
charge as alleged . Accordingly, the Respondent's
answer is frivolous and sham and we grant the
General Counsel's motion to strike.2
Paragraph 2(a) of the complaint alleges that the
Respondent is a California corporation with an
office and place of business in Van Nuys, Califor-
nia, where it is engaged in the manufacture of cast
aluminum wheels and auto accessories . Paragraph
2 Handy Hardware Wholesale, 222 NLRB 373 fn. 6 (1976) (lack of
knowledge of filing and service of charge); Jason/Empire, Inc., 212
NLRB 137 fn. 4 (1974) (denial of filing and service of charge).
295 NLRB No. 36
SUPERIOR INDUSTRIES INTERNATIONAL 321
2(b) of the complaint alleges that in the course and
conduct of its business , the Respondent annually
sells and ships goods or services valued in excess of
$50,000 directly to customers located outside the
State of California. The Respondent denied these
allegations.
Paragraph 3 of the complaint alleges that the Re-
spondent is an employer engaged in commerce and
in a business affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act. The Re-
spondent stated that it is without knowledge of this
allegation.
The General Counsel requests the Board to
strike these portions of the Respondent's answer re-
sponding to complaint paragraphs 2(a), 2(b), and
(3) because the facts set forth in these paragraphs
were stipulated to by the Respondent in Case 31-
RC-5728, the earlier representation case. The Re-
spondent , in its response to the Notice to Show
Cause , states that the General Counsel 's "claim"
that the Respondent stipulated that it is engaged in
commerce and is a statutory employer "is not accu-
rate ." The Respondent also alleges that "there is no
record stipulation of facts applicable to the time
frame encompassed . . . in 1988." However, the
Respondent fails to provide any evidence to con-
travene its previous stipulation in the representation
case that it is an employer engaged in commerce
under Section 2(6) and (7) of the Act. Also, in Su-
perior I, the Board found that the Respondent was
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. As the
Respondent previously stipulated to the facts set
forth in complaint paragraphs 2 and 3 and as the
Respondent has not proffered any evidence to con-
travene the earlier stipulation , we find that its
denial and alleged lack of knowledge are frivolous.
We grant the motion to strike.3
Paragraph 4 of the complaint alleges that the
Union is a labor organization under Section 2(5) of
the Act. The Respondent states that it is without
knowledge as to paragraph 4. The Respondent, in
agreeing to the Stipulation for Certification on
Consent Election in Case 31-RC-5728, stipulated
that the Union was a labor organization. Also, in
Superior I, the Board found that the Union is a
labor organization under the Act. We also take ad-
ministrative notice that the Board has previously
found that the International Union, United Auto-
3 Spring Valley Farms, 274 NLRB 643 (1985); Dollar Rent-A-Car, 250
NLRB 1361 ( 1980) (denial of commerce facts ); and Handy, fn. 4 supra;
and Empire Dental Co., 211 NLRB 860 (1974) (denial of status as a statu-
tory employer). See also Western Temporary Services, 278 NLRB 469
(1986)
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), Local 645, is a labor
organization under Section 2(5) of the Act . See Es-
tablishment Industries, 284 NLRB 121 (1987). Ac-
cordingly, we find that the Respondent' s alleged
lack of knowledge regarding paragraph 4 is frivo-
lous.4 We grant the motion to strike.
Paragraph 6 of the complaint sets forth the de-
scription of the unit and states that the unit is ap-
propriate for purposes of collective bargaining. The
Respondent states that it is without knowledge of
the truth of the allegation. The General Counsel
requests we strike this portion of the Respondent's
answer because the Respondent stipulated to the
appropriateness of the unit in the prior representa-
tion case. In its response to the Notice to Show
Cause, the Respondent states that the General
Counsel's "claim" that the Respondent previously
stipulated to the appropriateness of the unit "is not
accurate" and "there is no record stipulation of
facts applicable to the time frame encompassed .. .
in 1988." The Respondent fails to provide any evi-
dence to contravene its previous stipulation, or to
establish that the relevant circumstances have
changed materially since its stipulation was en-
tered. The Board affirmed the appropriateness of
the unit in Superior I. It is well settled that in the
absence of newly discovered or previously unavail-
able evidence or special circumstances a respond-
ent 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 repre-
sentation proceeding.5 We find the portion of the
Respondent 's answer responding to paragraph 6 to
be frivolous and we grant the motion to strike it.6
Paragraph 7 of the complaint relates the history
of the representation case and states that on August
30, 1984, a majority of the unit employees selected
the Union as their collective-bargaining representa-
tive; and that on May 21, 1987, the Regional Di-
rector certified the Union as the collective-bargain-
ing representative for the employees listed in para-
graph 6. Paragraph 8 of the complaint alleges that
since August 30, 1984, the Union has been the ex-
clusive collective -bargaining representative of the
employees in the unit. The Respondent has denied
both allegations.
4 Wickes Furniture, 261 NLRB 1062 fn. 4 (1982), Jobbers' Supply, 242
NLRB 518 fn. 2 (1979); Handy, supra, fn. 4, Graneto Datsun, 220 NLRB
399 fn 1 (1975); and S & S Product Engineering Services, 210 NLRB 912
fn. 2 (1974).
5 Empire Dental Co., supra.
6 Handy, supra; Jason, supra ; Graneto, supra (denial of the appropriate-
ness of the unit).
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel requests we strike these
portions of the Respondent 's answer because in the
prior representation case the Board determined that
the August 30, 1984 election was valid and certi-
fied the Union as the exclusive collective -bargain-
ing representative . The Respondent 's objections
were overruled and the Union was certified as the
exclusive collective -bargaining representative of
the unit employees in the underlying case . In Supe-
rior I the Board affirmed its findings in the repre-
sentation case and ordered the Respondent to rec-
ognize and bargain with the Union as the exclusive
collective-bargaining representative of the unit em-
ployees . We find the portions of the Respondent's
answer responding to paragraphs 7 and 8 to be
frivolous and we grant the motion to strike.7
The Respondent 's affirmative defense in para-
graph 2 , page 1 , of its answer alleges that a Region
31 supervisor and another General Counsel lawyer
"believed" certain testimony and affidavits relating
to the Respondent 's exceptions and contentions in
the earlier representation case.
The General Counsel contends that this allega-
tion is "inflammatory , without foundation, spuri-
ous, irrelevant , and serve [s] no legitimate purpose"
and requests that it be stricken under Section
102.21 of the Board 's Rules and Regulations.
The Respondent opposes the motion to strike.
The Respondent argues that the issues encom-
passed in the testimony and affidavits "believed"
by the Region 31 supervisor and the General
Counsel attorney were "never `previously litigat-
ed."'
The Board fully considered the Respondent's
evidence as to alleged objectionable conduct in the
earlier representation case. We find this affirmative
defense to be frivolous and irrelevant and strike it
under Section 102.21 of the Board 's Rules and
Regulations.
The Respondent's affirmative defense in para-
graph 3 , page 2, of its answer alleges that the Gen-
eral Counsel is engaged in a "cover -up" and alleges
that Board election procedures are the subject of
concern , and are under investigation , by "at least
forty [unnamed] U.S. Senators and Congressmen."
The General Counsel contends that this allegation
is "inflammatory, without foundation, spurious, ir-
relevant , and serve[s] no legitimate purpose" and
requests that it be stricken under Section 102.21 of
the Board 's Rules and Regulations . The Respond-
ent opposes the motion to strike . We find this af-
7 We note that Superior I is currently on appeal before the Court of
Appeals for the Ninth Circuit . However, unless and until the court re-
verses our Decision and Order in Superior I, we have made a final deter-
mination that the Union is the exclusive collective -bargaining representa-
tive of the unit employees
firmative defense to be frivolous and irrelevant and
strike it under Section 102.21 of the Board 's Rules
and Regulations.
We grant the General Counsel 's motion that
those portions of the Respondent 's answer respond-
ing to complaint allegations 1, 2, 3, 4, 6, 7, and 8 be
stricken . The matters alleged in the complaint with
respect thereto are deemed to be true . We also
strike the Respondent 's "affirmative defenses" in
paragraph 2, page 1 , and in paragraph 3, page 2, of
its answer, under Sections 102.20'and 102 .21 of the
Board 's Rules and Regulations."
Based on the above findings , we grant the Gen-
eral Counsel 's Motion to Strike and for Partial
Summary Judgment . We will remand this case to
the Regional Director for further proceedings con-
cerning the alleged 8 (a)(5) and ( 1) violations.
ORDER
It is ordered that the General Counsel' s Motion
to Strike Portions of the Respondent 's Answer and
for Partial Summary Judgment is granted in full.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 31
for the purpose of issuing a notice of hearing and
scheduling a hearing before an administrative law
judge.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare and serve on the parties a
decision containing findings, conclusions, and rec-
8In its answer, the Respondent stated : "[a]ll Respondent 's arguments
and all the documents, transcripts and exhibits in NLRB Cases 31-CB-
5999 , 6093 [sic], 6223 , RC-5728 , CP-531 , CA-16587, CC-1836, US.
Court of Appeals for the First Circuit No 88 -1917 and U .S. Court of
Appeals for the Ninth Circuit Nos. 88 -7297 and 88-7374 are hereby in-
corporated by reference herein" The General Counsel requests the
Board to strike the Respondent 's attempt to incorporate by reference all
the above material because the Respondent 's reference to the material is
vague and ambiguous and it cannot be ascertained what issues the Re-
spondent is raising as its defense to the present complaint . Also, accord-
ing to the General Counsel , the Respondent has not shown which por-
tions of the material are relevant to the present case We agree with the
General Counsel and we shall strike the incorporation of the above-men-
tioned documents from the answer.
In particular regard to the Respondent 's attempt to incorporate by ref-
erence all the documents relating to the prior representation case and to
Superior I, we have taken administrative notice of these cases . However,
we will not incorporate all the documents from those cases into the
record in this case because the Respondent has failed to show their rel-
evance to the present case.
In Its response to the Notice to Show Cause, the Respondent attempted
to incorporate by reference certain correspondence regarding Freedom
of Information Act requests in cases other than the present case. We
strike this incorporation because the Respondent has failed to show the
relevance of this matter to the present case
In its answer and response to the Notice to Show Cause , the Respond-
ent requests the Board consolidate the present case with the cases listed
above The General Counsel requests that the Respondent's request be
stricken because Case 31-CA-16587 is currently before the Court of Ap-
peals for the Ninth Circuit and the other cases are closed , withdrawn, or
dismissed . We grant the General Counsel 's motion to strike the Respond-
ent's request
The Respondent moves that the hearing in this case be rescheduled to
February 26, 1989 . The issue is moot.
SUPERIOR INDUSTRIES INTERNATIONAL 323
ommendations based on all the record evidence. Section 102.46 of the Board's Rules and Regula-
Following the service of the administrative law tions shall apply.
judge 's decision on the parties, the provision of