Van Tran Electric Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1970

187 N.L.R.B. 632 (N.L.R.B. 1970)

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Van Tran Electric Corporation and International
Association of Machinists and Aerospace Workers,
AFL-CIO . Case 14-CA-5716
December 31, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge filed on July 31, 1970, by Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, and
duly served on Van Tran Electric Corporation, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 14, issued a complaint on August
14, 1970, against Respondent, alleging that Respon-
dent 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 a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about July
24, 1970, following a Board election conducted
pursuant to an Agreement for Consent Election in
Case 14-RC-6381 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; I
and that, commencing on or about July 28, 1970, 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 August 25, 1970, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint, and requesting that the complaint be
dismissed in its entirety.
On October 2, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, together with exhibits and a
memorandum in support thereof, alleging that there
are no factual issues warranting a hearing in this
proceeding because all issues and contentions of the
Respondent were disposed of by the Regional
Director and the Board in the representation proceed-
ing in Case 14-RC-6381. Accordingly, the General
Counsel moves the Board to grant the Motion for
I Official notice is taken of the record in the representation proceeding,
Case 14-RC-6381 as the term "record" is defined in Sees 102 68 and
102 69(f) of the Board's Rules and Regulations, Series 8, as amended See
LTV Electrosvstems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4,
Summary Judgment. Subsequently, on October 8,
1970, 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 there-
after filed a response to Notice to Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 response to the Motion for Summary
Judgment, as in its answer to the complaint, the
Respondent contends that the certification issued to
the Union on July 24, 1970, is invalid by reason of the
Regional Director's failure to investigate the Respon-
dent's objections to the election conducted on March
20, 1970. As an alternative to dismissal of the
complaint in this proceeding, the Respondent re-
quests the Board to order the Regional Director to
investigate the objections, or that the Board remand
this case to a Trial Examiner for the purpose of
determining the merits of the allegations raised by the
Respondent in its answer. For the reasons related
below, we find no merit in the Respondent's conten-
tions.
The election in Case 14-RC-6381 was conducted on
March 20, 1970, pursuant to an Agreement for
Consent Election executed by the Respondent and the
Union, and approved by the Regional Director. The
tally of ballots served on the parties after the election
reflects that, of 66 votes cast, 31 were cast for the
Union, 30 were cast against the Union, and 5 were
challenged. Pursuant to the terms of a settlement
agreement entered into by the Respondent and
approved by the Regional Director in Case
14-CA-5481, the challenges to the five votes were
resolved. The ballots were opened and counted, a
revised tally of ballots was issued reflecting that the
Union had been selected by a majority of the valid
votes cast, and on July 24, 1970, the Regional Director
certified the Union as the bargaining representative of
the Employer in the unit hereinafter found appropri-
ate.
In the interim, on May 15, 1970, the Respondent
filed with the Regional Director a document entitled,
"Motion to File Objections to Conduct Affecting
Election," accompanied by the five objections to the
1968), Golden Age Beverage Co, 167 N LRB 151, InlertypeCo 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
187 NLRB No. 89
VAN TRAN ELECTRIC CORP.
election. On the same date the Regional Director
advised the Respondent that its objections were
untimely and that the Board's Rules and Regulations
make no provision for any extension of time of the
period within which objections are required to be
filed. Thereafter, the Respondent filed with the Board
a Request for Review, which was denied on June 1,
1970, on grounds that the Board will not entertain an
appeal from a Regional Director's determinations
arising under an Agreement for Consent Election.
It is well-established policy of the Board, in the
absence of newly discovered or previously unavaila-
ble evidence, or special circumstances, not to permit
litigation in an unfair labor practice case of issues
which were or could have been raised in a prior
representation proceeding.2 It is clear that the
Respondent's defense to the refusal-to-bargain allega-
tion here is identical to the issue raised and decided in
the underlying representation case, and, accordingly,
is not a permissible subject for litigation in this
proceeding.
Moreover, the election in the underlying representa-
tion case was conducted pursuant to an Agreement
for Consent Election, which specified on its face that
determinations by the Regional Director are final and
binding. It is the Board's policy not to undertake to
review the merits of such determinations unless it is
shown that there has been fraud, misconduct, or such
gross mistakes as to imply bad faith and support a
conclusion that the Regional Director's rulings were
arbitrary or capricious.3 The Board has applied this
standard even in cases, where, had the Board
originally considered the facts, it might have reached
a different result. On the record here, and contrary to
the contention of the Respondent, we are unable to
conclude that the Regional Director's determinations
in Case 14-RC-6381 were arbitrary or capricious.
On the basis of the foregoing, we find that the
Respondent had, and utilized, the opportunity to raise
and have decided in the prior representation case in
the forum it had chosen, the issues which it now raises
by its answer and response to the Notice to Show
Cause. The Respondent does not allege any newly
discovered or previously unavailable evidence, or the
existence of any special circumstances which would
require the Board to examine the determination made
by the Regional Director in the prior representation
proceeding. Accordingly, as the Respondent has not
raised any issue properly litigable in this unfair labor
practice proceeding, we shall grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
2 See Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Sections 102.67(f) and 102.69(c).
3 Mitchiyoshi Uyeda, d/b/a Udaco Manufacturing Company, 164 NLRB
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
633
At all times material herein, Respondent has
maintained its principal office and place of business
at Route 40 West in the city of Vandalia, State of
Illinois, herein called the Vandalia plant. Respondent
is, and has been at all times material herein, engaged
in the manufacture, sale, and distribution of electric
and electronic transformers and related products.
Respondent's plant located at Vandalia, Illinois, is the
only facility involved in this proceeding. During the
year ending December 31, 1969, which period is
representative of its operations during all times
material hereto, Respondent, in the course and
conduct of its business operations, purchased and
caused to be transported and delivered at its Vandal-
ia, Illinois, plant electric and electronic parts for
transformers, and other goods and materials valued in
excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported and
delivered to its plant in Vandalia, Illinois , directly
from points located outside the State of Illinois.
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
International Association of Machinists and Aeros-
pace Workers , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees at
the Respondent's Vandalia, Illinois , plant exclud-
ing office clerical and professional employees,
guards and supervisors as defined in the Act.
2. The certification
On March 20, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot election
700, 701-702; Summer Sand & Gravel Company, 128 NLRB 1368, 1371,
enfd . 293 F.2d 754 (C.A. 9).
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted under the supervision of the Regional
Director for Region 14, designated and selected the
Union as their representative for the purposes of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on July
24, 1970, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 28, 1970, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about July 28, 1970, 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
July 28, 1970, 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, Respondent 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 operations
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 com-
merce 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
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed 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, 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. Van Tran Electric Corporation 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-
tion within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondent
constitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees at
the Respondent's Vandalia, Illinois, plant exclud-
ing office clerical and professional employees,
guards and supervisors as defined in the Act.
4. Since July 24, 1970, 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 purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about July 28, 1970, 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 had
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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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
VAN TRAN ELECTRIC CORP.
Relations Board hereby orders that Respondent, Van
Tran Electric Corporation, its officers, agents, succes-
sors, 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 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 at
the Respondent's Vandalia, Illinois, plant exclud-
ing office clerical and 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 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Vandalia, Illinois, plant copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director
for Region 14, 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 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
APPENDIX
635
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 Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representa-
tive 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 employees
at the Respondent's Vandalia, Illinois, plant
excluding office clerical and professional
employees, guards and supervisors as defined
in the Act.
VAN TRAN ELECTRIC
CORPORATION
(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 compliance
with its provisions may be directed to the Board's
Office, 210 North 12th Boulevard, Room 448, St.
Louis, Missouri 63101, Telephone 314-622-4167.