Sure-Tan, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1977

231 N.L.R.B. 138 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sure-Tan, Inc. and Surak Leather Co. and Chicago
Leather Workers Union, Local 43 L, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Case 13-CA- 16263
August 4, 1977
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on March 1, 1977, by Chicago
Leather Workers Union, Local 43 L, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, herein called the Union, and
duly served on Sure-Tan, Inc. and Surak Leather
Co., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 13, issued a
complaint and amended complaint and notice of
hearing on March 16 and April 4, 1977, respectively,
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 January 17,
1977, following a Board election in Case 13-RC-
14147 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about February 18, 1977, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On March 21 and April 8,
1977, respectively, Respondent's answer to the
complaint and answer to the amended complaint,
admitting in part, and denying in part, the allegations
in the complaints, were received by the Regional
Office.
On April 21, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 29, 1977, 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
' Official notice is taken of the record in the representation proceeding,
Case 13-RC 14147, as the term "record" is defined in Secs. 102.68 and
1
0
2.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Eleclrosvstems, Inc., 166 NLRB 938 ( 1967), enfd. 388 F.2d 683 (C.A. 4,
231 NLRB No. 32
should not be granted. In response to the Notice To
Show Cause, the Respondent filed on May 13, 1977,
a statement in opposition to which the General
Counsel filed a response on May 23, 1977.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 that it
is engaged in commerce within the meaning of the
Act, and contends that it is entitled to a hearing
before an Administrative Law Judge because it had
no hearing on its objections to the election in the
underlying representation case and because of
special circumstances involving (1) the deportation of
the illegal aliens included in the unit; and (2) the
testimony of an unavailable witness that the Union
threatened to report at least 50 percent of the eligible
voters to the Immigration and Naturalization Ser-
vice.
Review of the record herein, including that in the
underlying representation proceeding, Case 13-RC-
14147, discloses that, after a hearing and the
submission of briefs by the parties on the jurisdic-
tional issue, the Regional Director issued a Decision
and Direction of Election on November 10, 1976, in
which he found, contrary to the Respondent, that
Sure-Tan Inc., alone was not the employer of the
employees in the stipulated unit, but that Sure-Tan,
Inc. and Surak Leather Co. were an employer
engaged in commerce within the meaning of the Act,
as they constituted a single integrated enterprise
whose combined direct and indirect outflow met the
Board's nonretail jurisdictional standard. The Re-
spondent filed a timely request for review reiterating
its jurisdictional contentions and alternatively re-
questing reconsideration of any Board rule or policy
subjecting Sure-Tan, Inc., to the Board's jurisdiction.
On December 3, 1976, the Board denied the
Respondent's request as raising no substantial issues
warranting review.
In the election conducted on December 10, 1976,
the tally of ballots showed six for, and one against,
the Union, with one ballot challenged. Thereafter,
the Respondent filed objections to the election
alleging, in substance, that (I) six of the seven eligible
voters were illegal aliens; (2) a union representative
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Interrype Co. v. Penello, 269 F.Supp. 573 (D.C. Va. 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec.
9(d) of the NLRA, as amended.
138
SURE-TAN, INC.
made material representations to voting group
employees that he could get them clearance from the
Immigration and Naturalization Service to perma-
nently reside and work in the United States; (3) a
union representative represented to unit employees
that, if the Union won, the Respondent could be
required by law to raise wages to $4 an hour; and (4),
by this and other conduct, the Union destroyed the
laboratory conditions for the election. The Respon-
dent also requested a hearing on the factual
questions raised by its objections. On January 17,
1977, the Acting Regional Director issued a Supple-
mental Decision on Objections in which he overruled
the objections in their entirety and certified the
Union. The Respondent filed a timely request for
review of the Acting Regional Director's Supplemen-
tal Decision, particularly raising the propriety of the
certification of a unit consisting primarily of illegal
aliens. On February 17, 1977, the Board denied the
request as raising no substantial issues warranting
review and necessarily found that there were no
substantial or material issues warranting a hearing.
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.2
Except as discussed hereinafter, 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, 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.
In its submission herein, the Respondent now
contends that there are special circumstances, includ-
ing the absence of a hearing on its objections in the
representation case, which require the holding of a
hearing. As special circumstances, the Respondent
alleges that (I) all the illegal aliens in the unit, whose
status was unknown to the Respondent prior to the
election, have been deported; and (2) a previously
unavailable witness could testify that a union
representative threatened to report at least 50 percent
of the eligible voters to the Immigration and
2 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 102.69(c).
:1 Diamond Cristal Salt Company, 222 NLRB 714 (1976); American
Wholesalers, Inc., 222 NLRB 917 (197 6 ): and Dynamic Machine Co.,221
NLRB 1140(1975).
Naturalization Service if the Union lost the election.
We find no merit in this contention. As to (1), the
fact that there has been employee turnover in the
certified unit as a result of the deportation of alien
employees is irrelevant to the issue of the Union's
majority status, as it is well established that, absent
unusual circumstances, there is an irrebuttable
presumption that majority status of the certified
union continues for I year from the date of the
certification and that employee turnover does not
constitute "unusual circumstances" within the Su-
preme Court's decision in Ray Brooks v. N.L.R.B.,
348 U.S. 96 (1954).3 As to (2), the Respondent merely
alleges that the witness and his testimony were
unavailable during the representation proceeding.
We note that the issue as to illegal aliens was raised
by the Respondent's election objections and found to
be without merit, and that Respondent makes no
showing that, through the exercise of due diligence,
this additional evidence could not have been pro-
duced in timely fashion so as to be considered in the
representation case.4 In these circumstances, we find
that the Respondent's alleged special circumstances
do not warrant the holding of a hearing, especially
where, as here, the Respondent has raised no
substantial or material issues in the underlying
representation case, and the Board has held, with
judicial approval, that an evidentiary hearing is not
required.5 Accordingly, we shall 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
Respondent Sure-Tan, Inc., is an Illinois corpora-
tion engaged in the business of tanning hides. V. J.
Surak and S. S. Surak, jointly called Surak Leather
Co., are copartners doing business under the trade
name and style Surak Leather Co. and are engaged
in the business of purchasing and selling hides.
Respondent Sure-Tan, Inc., and Respondent Surak
Leather Co., jointly called Respondent, are and have
been affiliated businesses with common officers,
ownership, directors, and operators, and constitute a
single integrated enterprise; and said directors and
operators formulate and administer a common labor
policy for the aforementioned business, affecting the
employees of said business. Respondent has main-
' Westinghouse Broadcasting Company. Inc. (WJZ TV, Channel 13), 218
NLRB 693(1975); A-l Sheet Metal Works, Inc.. 218 NLRB 962 (1975).
5 Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976); Janler Plastic
Mold Corporation, 191 NLRB 162 (1971); Crest Leather Manufacturing
Corporation, 167 NLRB 1085 (1967). and cases cited therein.
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained an office and place of business located at 1464
West Webster, Chicago, Illinois.
During the past calendar year, Respondent sold
and shipped goods and services from its Chicago,
Illinois, facility to points located outside the State of
Illinois. During the same period, Respondent also
sold and shipped goods and services to a customer
located in the State of Illinois, which customer meets
the Board's jurisdictional standards other than
indirect inflow or indirect outflow standards. The
total value of the above-mentioned goods and
services is in excess of $50,000.
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
Chicago Leather Workers Union, Local 43 L,
Amalgamated Meat Cutters and Butcher Workmen
of North 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
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
employed by Respondent at its facility now
located at 1464 Webster Avenue, Chicago, Illi-
nois, but excluding office clerical employees,
guards, professional employees and supervisors as
defined in the Act.
2. The certification
On December 10, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 13, 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
January 17, 1977, 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 February 18, 1977, 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 February 18, 1977, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that the Respondent has,
since February 18, 1977, 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 (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);
140
SURE-TAN, INC.
Burnett Construction 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
I. Sure-Tan, Inc. and Surak Leather Co. are an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Chicago Leather Workers Union, Local 43 L,
Amalgamated Meat Cutters and Butcher Workmen
of North 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 Respondent at its facility now located
at 1464 Webster Avenue, Chicago, Illinois, but
excluding office clerical employees, guards, profes-
sional employees 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 January 17, 1977, 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 February 18, 1977, 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(a)(1) of the Act.
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
Relations Board hereby orders that the Respondent,
Sure-Tan, Inc. and Surak Leather Co., Chicago,
Illinois, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Chicago Leather
Workers Union, Local 43 L, Amalgamated Meat
Cutters and Butcher Workmen of North 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 facility now
located at 1464 Webster Avenue, Chicago, Illi-
nois, but excluding office clerical employees,
guards, professional employees 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 Chicago, Illinois, facility copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director
for Region 13, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
e 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 Chica-
go Leather Workers Union, Local 43 L, Amalga-
mated Meat Cutters and Butcher Workmen of
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North America, 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
dscribed below, with respect to rates of pay,
w*gus, hours, and other terms and conditions of
emp4oyment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees employed by Respondent at its facility
now located at 1464 Webster Avenue,
Chicago, Illinois, but excluding office cleri-
cal employees, guards, professional employ-
ees and supervisors as defined in the Act.
SurE-TAN, INC. AND
SURAK LEATHER CO.
142