Thiem Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1972

199 N.L.R.B. 1093 (N.L.R.B. 1972)

THIEM INDUSTRIES, INC.
Thiem Industries, Inc. and International Association of
Machinists and Aerospace Workers District Lodge
94 and its affiliated Local Lodge 1235 . Case 31-CA-
3156
October 27, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on June 8, 1972, by Interna-
tional Association of Machinists and Aerospace
Workers District Lodge 94 and its affiliated Local
Lodge 1235, herein called the Charging Party, and
duly served on Thiem Industries, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 31, issued a complaint on June 20, 1972,
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 Na-
tional 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 March 30,
1972, following a Board election in Case 31-RC-1799,
International Association of Machinists and Aero-
space Workers, AFL-CIO, herein called the Union
was duly certified as the exclusive collective-bargain-
ing representative of Respondent's employees in the
unit found appropriate;' and that, commencing on or
about April 20, 1972, and at all times thereafter, Re-
spondent has refused, and continues to date to refuse,
to bargain collectively with the Union as the exclusive
bargaining representative, although the Union has re-
quested and is requesting it to do so. On June 30, 1972,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in the
complaint.
On July 18, 1972, counsel for the General Coun-
sel filed directly with the Board a motion for summary
judgment. Subsequently, on July 25, 1972, the Board
issued an order transferring the proceeding to the
Board and a notice to show cause why the General
'Official notice is taken of the record in the representation proceeding,
Case 31 -RC-1799, 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; Intertype Co v Penello, 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.
1093
Counsel's motion for summary judgment should not
be granted. On August 7, 1972, the Charging Party
filed a motion for summary judgment. Respondent
thereafter filed a response to notice to show cause,
and a motion for summary judgment of dismissal of
the complaint.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 in its motion
for summaryjudgment of dismissal of complaint, Re-
spondent denies that the Union is the exclusive bar-
gaining representative of its employees in the unit
stipulated to be appropriate in Case 31-RC-1799. Re-
spondent further alleges that the General Counsel's
motion seeks to deny it a right to a hearing under the
Board's Rules and Regulations and it, accordingly,
opposes the grant of the General Counsel's motion
for summary judgment. We find no merit in
Respondent's position.
Pursuant to a stipulation for certification upon
consent election, an election was conducted on Au-
gust 26, 1971, in which the tally of ballots showed that
79 were for, and 62 against, the Union with 1 ballot
void. Respondent thereafter filed timely objections to
conduct affecting the results of the election. The ob-
jections alleged in substance that the Union, through
two leaflets mailed or handed to unit employees short-
ly before the election, made false assertions with re-
spect to wage increases obtained for union members
in certain industries and that "wage freeze" informa-
tion contained in the union leaflets was misleading.
Respondent further,contended that there was insuffi-
cient time for it to rebut the Union's claims. Although
asked to submit in writing the evidence it relied on in
support of its objections, Respondent failed to offer
any evidence that any of the statements objected to is
false. On October 5, 1971, the Regional Director is-
sued his report on objections in which he recom-
mended that the objections be overruled in their
entirety and that the Union be certified as the exclu-
sive collective-bargaining representative of the em-
ployees in the stipulated unit.
Respondent subsequently filed with the Board
timely exceptions to the Regional Director's report on
objections in which it reargued the merits of its objec-
tions and submitted a copy of a B.N.A. Union Labor
Report weekly newsletter. Treating the exceptions as
a motion for reconsideration, the Regional Director
granted the motion and issued a supplemental report
199 NLRB No. 138
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on objections on November 5, 1971. Concluding that
the weekly newsletter neither substantiated nor refut-
ed any of the statements made by the Petitioner and
that the report on objections was correct in finding
that Respondent had failed to furnish evidence that
misrepresentations had been made, the Regional Di-
rector confirmed the conclusions and recommenda-
tions set forth in the report on objections. Respondent
thereafter filed timely exceptions to the Regional
Director's supplemental report and a supporting
brief. On March 30, 1972, the Board issued its Deci-
sion and Certification of Representative in which, af-
ter considering Respondent's objections, the Regional
Director's report, Respondent's exceptions to the re-
port, and the Regional Director's supplemental report
and Respondent's exceptions thereto, it adopted the
findings, conclusions, and recommendations of the
Regional Director, overruled the Respondent's objec-
tions, and certified the Union.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding alleg-
ing a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been litigat-
ed in a prior representation proceeding?
All issues raised by the Respondent in this pro-
ceeding 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, deny the
Respondent's motion for summary judgment of dis-
missal of complaint and grant the General Counsel's
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 corporation; with its main office in
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). The Board's
determination in the representation case to overrule the Respondent's objec-
tions, which raised the same issues reiterated herein , necessarily decided that
an evidentiary heanng was not required . Accordingly, we deny the
Respondent's request for hearing herein.
2 The Charging Party's request for a "make whole" remedy is denied for
reasons set forth in Ex-Cell-0 Corporation, 185 NLRB No. 20. In view of our
ruling herein, we do not pass on the Charging Party's Motion for Summary
Judgment.
Torrance, California, is engaged in the design and
manufacture of precision metal products and electro-
mechanical devices and annually ships products val-
ued in excess of $50,000 directly to points located
outside the State of California.
We find, on the basis of the foregoing, that Re-
spondent 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and
Aerospace Workers , AFL-CIO, is a labor organiza-
tion 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 con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
of Respondent at its plant in Torrance, Califor-
nia excluding all office clerical employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
2. The certification
On August 26, 1971, 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 31, 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 March 30, 1972, and the Union contin-
ues 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 April 11, 1972, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about April 20, 1972, and continuing at all times
THIEM INDUSTRIES, INC.
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 April 20, 1972, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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
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 appro-
priate unit, and, if an understanding is reached, em-
body 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 by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recog-
nized 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).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Thiem Industries , Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Association of Machinists and
Aerospace Workers , AFL-CIO, is a labor organiza-
1095
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent at its plant in Torrance, California ex-
cluding all office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since March 30, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about April 20, 1972, 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, 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 Rela-
tions Board hereby orders that Respondent, Thiem
Industries, Inc., 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 International Association
of Machinists and Aerospace Workers, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees
of Respondent at its plant in Torrance, Califor-
nia excluding all office clerical employees, pro-
fessional 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.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 plant in Torrance, California, cop-
ies of the attached notice marked "Appendix."4 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Inter-
national Association of Machinists and Aero-
space Workers, 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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees
of Respondent at its plant in Torrance, Califor-
nia excluding all office clerical employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
Dated By
THIEM INDUSTRIES, INC.
(Employer)
(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 compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7351.