San Francisco

National Labor Relations Board - Board Decisions

Feb 20, 1976

222 N.L.R.B. 981 (N.L.R.B. 1976)

HEATH TEC DIVISION/SAN FRANCISCO
Heath Tec Division/San Francisco and International
Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 115. Case
20-CA-10648
February 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Upon a charge filed on September 18, 1975, by
International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge No. 115,
herein called the Union, and duly served on Heath
Tee Division/San Francisco herein called the Re-
spondent, the Acting General Counsel of the Nation-
al Labor Relations Board, herein called General
Counsel, by the Regional Director for Region 20, is-
sued a complaint and amendment thereto on Octo-
ber 9 and 22, 1975, respectively, 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 Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and amendment thereto, and notice of hear-
ing before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on August 28, 1975,
following a Board election in Cases 20-RC-11425
and 20-RC-11428, the Union was duly certified as
the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about September
17, 1975, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On October 29, 1975,
Respondent filed its answer to the complaint admit-
ting in part, and' denying in part, the allegations in
the complaint.
On November 28, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 10,
'Official notice is taken of the record in the representation proceeding,
Cases 20-RC-1 1425 and 20-RC-1 1428, as the term "record" is defined in
Secs 102 .68 and 102.69(8) of the Board's Rules and Regulations, Series 8, as
amended. See LTV Electrosystemr, Inc., 166 NLRB 938 (1967), enfd. 388
F.2d 683 (C.A, 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967),
enfd . 415 F.2d 26 (C.A. 5, 1969); Intertype 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.
981
1975, the Board issued an order transferring the pro-
ceeding 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, enti-
tled "Respondent's Answer To Notice To - Show
Cause and Request for Oral Argument."
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 response to the
Notice To Show Cause, Respondent in substance as-
serts the invalidity of the underlying certification
based on its objections to the election conducted pur-
suant to a Stipulation for Certification Upon Con-
sent Election. Further, Respondent contends that it
was deprived of a fair hearing and due process by the
Hearing Officer's revocation of subpoenas duces te-
cum directed to Board agents. In the Motion for
Summary Judgment, counsel for the General Coun-
sel in effect contends that Respondent is attempting
to relitigate the representation case in this proceeding
and this it may not do. We agree with the General
Counsel.
The record herein, including that in the underlying
representation proceeding, Cases 20-RC-11425 and
20-RC-11428, establishes that on April 19, 1974, a
second rerun election was held among all production
and maintenance employees at Respondent's Hay-
ward, California, facility? The tally of ballots
showed 10 votes cast for the Union, 7 against, and 4
challenged ballots: Respondent filed timely objec-
tions to the election alleging, in substance, Union
and third person coercion by promises of benefits, by
material misrepresentations, by threats to withhold
benefits and to revoke the immigration papers of em-
2 The Respondent's request for oral argument is hereby denied as the
positions of the parties are adequately set forth in their submissions in this
matter, and m the representation proceeding.
3 On June 5, 1973, Metal Polishers , Buffers, Platers, and Helpers Interna-
tional Union, Local No 128, herein called Metal Polishers, filed a petition
in Case 20-RC-11425, and on June 7, 1973, the Union filed a petition in
Case 20-RC-11428, seeking to represent the same employees sought by the
Metal Polishers. On August 3, 1973, pursuant to a Stipulation for Certifica-
tion Upon Consent Election , a Board election was held among
Respondent 's employees in the stipulated appropriate production and main-
tenance unit . The tally of ballots showed 10 votes for the Union , 1 for the
Metal Polishers, 7 against the participating unions, and 2 challenged ballots.
The Respondent filed timely objections to the election . On January 15,
1974, the Board set aside the election and ordered a rerun election The
Metal Polishers withdrew from the election , which was held on February 15,
1974 This rerun election was set aside by stipulation of the Respondent and
Union.
222 NLRB No. 151
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees who did not support the Union, and by in-
structing ineligible persons to attempt' to vote.
Respondent's objections further alleged that, despite
having conclusive knowledge of the deportation ru-
mors and actual knowledge of the destruction of lab-
oratory conditions by virtue of a Board investigation
in Case 30-CB-3166 conducted 2 days before-the
election, the Board nevertheless conducted the elec-
tion, thus depriving Respondent's employees of a fair
and free election. After investigation of Respondent's
objections, the Acting Regional Director on August
21, 1974, issued a Report on Objections and Chal-
lenged Ballots, recommending that the objections be
overruled in their entirety, that the Board order the
opening of three of the four challenged ballots, and
that the Union be certified if at least two of the bal-
lots were cast for the Union.4 Respondent filed ex-
ceptions to the report and a brief in support request-
ing a rerun election or a hearing. On December 16,
1974, the Board ordered a hearing only on those ob-
jections concerning the alleged threats with respect to
the revocation of immigration papers by the Union
and by third persons and on the objections alleging
Board knowledge of deportation rumors and of the
destruction of the laboratory conditions of the elec-
tion.
Prior to the hearing, Respondent subpenaed Re-
gional Director for Region 20, Roy O. Hoffman, and
Board Agent Kaplan to appear at the hearing and
also requested the General Counsel to give written
consent allowing them to testify and present certain
documents. The General Counsel denied
Respondent's request and,_ at the hearing, the Hear-
ing Officer granted a petition to revoke the subpenas.
After the hearing, Respondent filed its brief to the
Hearing Officer. On March 17, 1975, the Hearing Of-
ficer issued his report and recommendations finding
(1) insufficient evidence to establish that any agent of
the Union made threats of deportation to employees
or that there existed a general atmosphere of fear and
reprisal sufficient to set aside the election; and (2)
that the Regional Director did not have any knowl-
edge of widespread deportation rumors or a lack of
laboratory conditions necessary for a free and un-
coerced election. Accordingly, he recommended that
Respondent's objections be overruled and that the
4 On April 18, 1974, the Union had filed an unfair labor practice charge in
Case 20-CA-9120 alleging that Respondent herein violated Sec 8(a)(1) and
(3) of the Act by discruninatorily terminating three employees. By agree-
ment of the parties, these three employees were allowed to vote under chal-
lenge The Acting Regional Director found that, if even two of the chal-
lenged voters voted for the Union, then regardless of whether they were
ultimately found to be eligible, the Union would have received a majority of
Union be certified if it should receive a majority -after
the challenged ballots were opened. Respondent filed
timely exceptions to the Hearing Officer's report and
a brief in support, reiterating its position with respect
to the alleged threats of deportation, their impact on
laboratory conditions, and the Region's alleged
knowledge thereof. In addition, Respondent asserted
that it was denied due process by suppression of evi-
dence in that revocation of the subpenas deprived it
of the only evidence as to the Region's knowledge of
the alleged deportation threats. On July 30, 1975, af-
ter consideration of the Acting Regional Direc-
tor's report, the Hearing Officer's report, and
Respondent's exceptions and brief, the Board issued
a Decision and Order directing the Regional Direc-
tor to open and count ballots, adopting the findings,
conclusions, and recommendations of the Acting Re-
gional Director and Hearing Officer and directing
the, Regional Director to open and count the three
challenged ballots and -to certify the Union if two or
more of the, challenged ballots were cast for the
Union.
Thereafter, on August 22, 1975, the three chal-
lenged ballots were opened and counted and a re-
vised tally issued showing 13 votes cast for the
Union, 7 against, and 1 undetermined challenged
ballot. On August 28, 1975, the Regional Director,
absent objections, certified the Union.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding .5
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 discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision 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:
the votes cast and would be entitled to be certified and she so recommend-
ed Pending resolution of Case 20-CA-9120, the Acting Regional Director
stated that she would make no recommendation with respect to the eligibili-
ty of the fourth challenged voter.
5 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).
FINDINGS OF FACT
HEATH TEC DIVISION /SAN FRANCISCO
I. THE BUSINESS OF THE RESPONDENT
Respondent, a division of Heath Tec Corporation,
a Washington corporation, with its principal place of
business at Hayward, California, has been engaged
in the business of anodizing, plating, and finishing of
metals. During the past year, in the course of its busi-
ness operations, Respondent sold and shipped direct-
ly to customers located outside the State of Califor-
nia goods valued in excess of $50,000.
We find, on the basis of the foregoing, that Re-
spondent is, -and has been at all times material here-
in, 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 j uris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge No. 115, 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 con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed at the Respondent's facility located in
Hayward, California, including-shipping and re-
ceiving employees, inspectors, and drivers; ex-
cluding office clerical employees, professional
employees, salesmen, guards, and supervisors as
defined in the Act.
2. The certification
On April 19, 1974, 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 20, 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 August 28, 1975, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
983
B. The Request To Bargain and Respondent's Refusal
Commencing on or about September 11, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about September 17, 1975, and continuing at
all times thereafter to- date, the Respondent has re-
fused, and continues to refuse, to recognize and bar-
gain with the Union as the exclusive representative
for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since September 17, 1975, and at all times thereafter,
refused 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 opera-
tions described in section I, above, have a close, inti-
mate, 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if' an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(C.A. 5, 1964), cert . denied 379 U.S. 817 ( 1964); Bur-
nett 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
1. Heath Tec Division/San Francisco is an em-
ployer 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, District Lodge No.
115, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed at the Respondent's facility located in Hay-
ward, California, including shipping and receiving
employees, inspectors, and drivers; excluding office
clerical employees, professional employees, sales-
men, 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 August 28, 1975, 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 September 17, 1975,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive 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, 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 mean-
ing 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.
lations Board hereby orders that Respondent, Heath
Tec Division/San Francisco, Hayward, California,
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 con-
ditions of employment with International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO, District Lodge No. 115, as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
employed at the Respondent's facility located in
Hayward, California, including shipping and re-
ceiving employees, inspectors, and drivers; ex-
cluding office clerical employees, professional
employees, salesmen, 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:
(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 Hayward, California, facility copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 20, 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 no-
tices to employees are customarily posted. Reason-
able 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 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
ORDER
Pursuant to Section 10(c) of the National Labor
6 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 Anneals Enforcing an Order of the
Relations Act, as amended, the National Labor Re- National Labor Relations Board.
HEATH TEC DIVISION/SAN FRANCISCO 985
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, District Lodge No.
115, 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 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees
employed at the Respondent's facility located
in Hayward, California, including shipping
and receiving employees, inspectors, and driv-
ers; excluding office clerical employees, pro-
fessional employees, salesmen, guards, and
supervisors as defined in the Act.
HEATH TEC DIVISION/SAN FRANCISCO