Triplex Mfg. Co.

National Labor Relations Board - Board Decisions

Sep 8, 1980

251 N.L.R.B. 1633 (N.L.R.B. 1980)

TRIPLEX MANUFACTURING COMPANY 1W3I
Paul Katz and Sylvia Latz d/b/a Triplex Manufac-
turing Company and District 8, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO. Case 13-CA-19808
September 8, 1980
DECISION AND ORDER
Upon a charge filed on April 17, 1980, by Dis-
trict 8, International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the
Union, and duly served on Paul Katz and Sylvia
Katz d/b/a Triplex Manufacturing Company,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 13, issued a complaint
on April 28, 1980, 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on April 7,
1980, following a Board election in Case 13-RC-
15232, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about April 10,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On May 5,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint. In essence, Respondent
admits the factual allegations of the complaint
except it denies that the Union has continued to re-
quest bargaining. It denies, however, the portions
of the complaint that asserts the sufficiency of the
certification in establishing the Union as the exclu-
sive bargaining representative in the appropriate
unit and the conclusionary allegations that Re-
spondent had violated Section 8(a)(1) and (5) of the
Act.
I Official notice is taken of the record in the representation proceed-
ing. Case 13-RC 15232, as the term "record" is defined ill Secs 11)268
and 102.6
9
(g) of the Board's Rules and Regulations, Series 8, as amended
See LIV' Eletrosysrrems. Inc. 166 NIRB 938 (1967), enfd 88 F 2d 683
(4th Cir 1
9
681; Golden Age Beverage C., 167 NLRB 151 (197t6), nfd 415
F2d 26 (Sth Cr 1969) Inleerpe Co , Penclio, 269 F Supp 573
(D C Va 19(7): ,l/IItt Corp. 164 NLRB 378 (l97). ernfd 39' F 2d I
(7th Cir 1968), Sec 9(d) of the NLRA. as amended
251 NLRB No. 111
On June 4, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently. on June 9, 1980, 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 Judg-
ment should not be granted. Respondent thereafter
filed a response to Notice To Show Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
As described above, Respondent's answer to the
complaint admits in part, and denies in part, the al-
legations of the complaint. In essence, as set forth
in its answer to the Notice To Show Cause, Re-
spondent contends that the Union's preelection
conduct destroyed the requisite conditions neces-
sary for a fair and secret-ballot election, that the
Regional Director for Region 13 failed to fuilly in-
vestigate Respondent's objections, and that the
Certification of Representative was improperly
issued by the Board.
A review of the record reveals that, pursuant to
a Stipulation for Certification Upon Consent Elec-
tion in Case 13-RC-15232, an election was held on
October 17, 1979, in the appropriate unit. The tally
was 16 for, and 15 against, the Petitioner. There
were no challenged ballots. Thereafter Respondent
filed timely objections to the election. On Decem-
ber 28, 1979, the Regional Director for Region 13
issued his Report and Recommendation on Objec-
tions in which he recommended that the objections
be overruled, and that a certification of representa-
tive be issued. Respondent filed exceptions to the
Regional Director's Report and Recommendation
on Objections with the Board. On April 7, 1980.
the Board issued its Decision and Certification of
Representative in which it adopted the Regional
Director's findings and recommendations.
On April 10, 1980, Respondent sent a letter to
the Union advising that it intended to seek court
review of the Board's Decision and Certification of
Representative, explaining its reasons f6r seeking
court review, and concluding: ". . . the employer
refuses to recognize the Union as the representative
of its employees and will refuse to negotiate with
the Union upon request." 2
2 As indicated above, Respondent denies the complaint allegallton that
at all tinmes since April 7, 1980t "the union has requested. and continues
to request bargaining " Although there is no record evidencc that the
Union specifically requested bargaining after the issuance of the certifica-
tltlon rr April 7. 198(). sse note that Respondent's letter, dated April 10,
19g(). Just da , after i-.ualtcc of the ertificaiiiin, nd:cited the fility
of such a request 'hus, we agree ,hi the cG neral (C'inql that. !n the
circumstances here, no further 'ormal demand for hbargaining aa neccs-
satr l'/luvns Enrr v ('orporatton, 218 N R)B 0I O. fn 4 (175)
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
Respondent is engaged in the manufacture and
assembly of automotive and truck equipment at its
facility at 1933 South Halsted Street, Chicago, Illi-
nois. During the past calendar year, a representa-
tive period, Respondent in the course and conduct
of its business operations sold and shipped from its
Chicago, Illinois, facility products, goods, and ma-
terials valued in excess of $50,000 directly to points
outside the State of Illinois.
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 jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
District 8, International Association of Machin-
ists and Aerospace Workers, 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
I See Pittsburgh Plate Glass Co. v NL.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c)
All shipping and receiving employees and
all production and maintenance employees of
the Employer now located at 1933 South Hal-
sted Street, Chicago, Illinois, 60608; but ex-
cluding all office clerical employees, profes-
sional employees, guards and supervisors, as
defined in the Act.
2. The certification
On October 17, 1979, 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 Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on April 7, 1980, 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 April 7, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 10, 1980, and continu-
ing at all times thereafter to date, 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 Respondent has, since
April 10, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
TRIPLEX MANUFACTURING COMPANY 1635
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 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 certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI.USIONS OF LAW
1. Paul Katz and Sylvia Katz d/b/a Triplex
Manufacturing Company is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. District 8, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All shipping and receiving employees and all
production and maintenance employees of the Em-
ployer now located at 1933 South Halsted Street,
Chicago, Illinois, 60608; but excluding all office
clerical employees, professional employees, guards
and supervisors, as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since April 7, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 10, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Paul Katz and Sylvia Katz d/b/a Triplex Manufac-
turing Company, Chicago, Illinois, their 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 District 8, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All shipping and receiving employees and
all production and maintenance employees of
the Employer now located at 1933 South Hal-
sted Street, Chicago, Illinois, 60608; but ex-
cluding all office clerical employees, profes-
sional employees, guards and supervisors, as
defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Chicago, Illinois, facility copies of
the attached notice marked "Appendix."4 Copies
4 In the eent that this Order is enforced bh a Judgment of a United
States Court of Appeals, the words In the notice reading "Posted hy
Order of the National Labor Relatlions Board" shall read Posted Pursu-
Contin ued
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, on forms provided by the Regional
Director for Region 13, 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. Rea-
sonable 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 here-
with.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.abor 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 District 8, International Association of
Machinists and Aerospace Workers, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All shipping and receiving employees and
all production and maintenance employees
of the Employer now located at 1933 South
Halsted Street, Chicago, Illinois, 60608; but
excluding all office clerical employees, pro-
fessional employees, guards and supervisors,
as defined in the Act.
PAUL KATZ AND SYLVIA KATZ D/B/A
TRIPLEX MANUFACTURING COMPANY