The Newton-New Haven Co.

National Labor Relations Board - Board Decisions

Dec 12, 1973

207 N.L.R.B. 822 (N.L.R.B. 1973)

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Newton-New Haven Company and United Rub-
ber, Cork, Linoleum & Plastic Workers of Ameri-
ca, AFL-CIO, CLC. Case 1-CA-9227
December 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on July 19, 1973, by United
Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, CLC, herein called the Union,
and duly served on The Newton-New Haven
Company, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 1, issued a
complaint on August 10, 1973, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 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 May 18, 1973,
following a Board election in Case 1-RC-12519 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about July 2, 1973, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On August 22, 1973, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On August 30, 1973, counsel for the General
Counsel filed directly with the Regional Director a
Motion for Summary Judgment. By Order of the
same date, the Regional Director referred the Motion
to the Board which was filed on September 4, 1973.
Subsequently, on September 12, 1973, 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, called Answer to General
Counsel's Motion for Summary Judgment.
1 Official notice is taken of the record in the representation proceeding,
Case 1-RC-12519, as the term "record" is defined in Secs. 102.68 and
I02.69(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);
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 attacks the
validity of the election, which resulted in the Union's
certification, because of the conduct alleged in its
objections and because of the Board's failure to grant
Respondent's request for a hearing on the objections.
The General Counsel contends that the Respondent
is attempting to relitigate issues which were or could
have been raised and determined in the underlying
representation case and this the Respondent may not
do herein. We agree with the General Counsel.
Our review of the record herein reflects that,
pursuant to the Regional Director's Decision and
Direction of Election in Case 1-RC-12519, an
election was conducted on April 13, 1973, in the
appropriate production and maintenance unit of the
Respondent's employees at its North Haven, Con-
necticut, facility. The tally of ballots showed that, of
approximately 183 eligible voters, 87 cast votes for,
and 82 against, the Union and 2 votes were
challenged. Thereafter, the Respondent filed timely
objections to the conduct affecting the results of the
election, alleging, in substance, that (1) the Union
threatened, intimidated, and coerced employees; (2)
the Union made material misrepresentations of fact
to influence the election; (3) the Union made
promises of benefit with respect to dues and
initiation fees; (4) a union representative, acting as
an official observer, engaged in improper electioneer-
ing; and (5) non-English-speaking employees were
not given proper notices of elections and ballots.
After investigation, the Regional Director, on May
18, 1973, issued a Supplemental Decision and
Certification of Representative in which he overruled
the objections as not being meritorious and certified
the Union. With respect to the conduct alleged in
Objection 4, the Regional Director concluded that,
assuming the union observer engaged in the conduct
attributed to him, it did not constitute electioneering.
The Respondent filed a timely request for review,
called exceptions to the Regional Director's Supple-
mental Decision, excepting to the Regional Direc-
tor's overruling Objection 4 as lacking in merit and
requesting either that the election be set aside or that
Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1969);
Intertype Co. v. Peneio, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164
NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
207 NLRB No. 116
NEWTON-NEW HAVEN COMPANY
a hearing be directed on the conduct of the union
observer alleged in that objection. On June 11, 1973,
the Board denied the request for review as it raised
no substantial issues warranting review.
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
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. 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
The Respondent, a Connecticut corporation, has
maintained its principal office and place of business
at 6 Middletown Avenue, North Haven, Connecti-
cut, where it is now and continuously has been
engaged at said facility in the manufacture, sale, and
distribution of metal die castings and related prod-
ucts. Annually, the Respondent receives goods
valued in excess of $50,000 at its North Haven,
Connecticut, plant, from points located outside the
State of Connecticut.
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
United Rubber, Cork, Linoleum & Plastic Workers
of America, AFL-CIO, CLC, 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
823
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
including regular part-time maintenance employ-
ees, hot inspector clerks, production clerks,
inspectors, stockroom clerks, timekeepers and
group leaders, at the Employer's North Haven,
Connecticut, location, but excluding quality
control clerk, draftsmen, time study employees,
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On April 13, 1973, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the - supervision of the Regional
Director for Region I designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on May 18, 1973, 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 May 18, 1973, 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 July 2, 1973, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since July 2, 1973, 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.
2 See Pittsburgh Plate Glass Co. v N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c)
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5,
1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421, 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. The Newton-New Haven Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO, CLC, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees
including regular part-time maintenance employees,
hot inspector clerks, production clerks, inspectors,
stockroom clerks , timekeepers and group leaders, at
the Employer's North Haven, Connecticut, location,
but excluding quality control clerk, draftsmen, time
study employees, office clerical employees, profes-
sional employees , guards 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 May 18, 1973, 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 July 2, 1973, 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)(I) 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 Respondent, The
Newton-New Haven Company, North Haven, Con-
necticut, 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 United Rubber,
Cork, Linoleum & Plastic Workers of America,
AFL-CIO, CLC, as the exclusive bargaining repre-
sentative of its employees in the following appropri-
ate unit:
All production and maintenance employees
including regular part -time maintenance employ-
ees, hot inspector clerks , production clerks,
inspectors , stockroom clerks , timekeepers and
group leaders , at the Employer's North Haven,
Connecticut, location, but excluding quality
control clerk, draftsmen, time study employees,
office clerical employees , professional employees,
guards 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.
NEWTON-NEW HAVEN COMPANY 825
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 North Haven, Connecticut, facility
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's representative, shall be
posted by Respondent 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. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees including regular part-time maintenance
employees, hot inspector clerks, production
clerks, inspectors, stockroom clerks, time-
keepers and group leaders, at the Employer's
North Haven, Connecticut, location, but
excluding quality control clerk, draftsmen,
time study employees, office clerical employ-
ees, professional employees, guards and
supervisors as defined in the Act.
3 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 United
Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, CLC, as the exclusive
THE NEWTON-NEW
HAVEN COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Bulfinch Building, 15 New Chardon
Street, Boston, Massachusetts 02 1 14, Telephone
617-223-3300.