Sperry Rubber & Plastic Co., Inc.

National Labor Relations Board - Board Decisions

May 15, 1978

236 N.L.R.B. 32 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sperry Rubber & Plastics Co., Inc. and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America. Case 25-CA-
9489
May 15, 1978
DECISION AND ORDER
BY MI MBEiRS JE-NKINS. MU RPIY, AND TRUESDALE
Upon a charge filed on December 8, 1977, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
herein called the Union, and duly served on Sperry
Rubber & Plastics Co., Inc., herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region
25. issued a complaint on December 15, 1977 against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (I) and Section 2(6) and (7) of the National La-
bor 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 com-
plaint alleges in substance that on November 30,
1977, following a Board-conducted rerun election
held on August 18. 1977, in Case 25 RC-6477, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate:t and that, commenc-
ing on or about December 1, 1977, 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.
Thereafter, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint.
On January 9, 1978, counsel for the General Coun-
sel filed directly with the Board a motion to strike
portions of Respondent's answer and a Motion for
Summary Judgment with exhibits attached. Subse-
quently, on January 20, 1978, the Board issued an
order transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
'Official notice is taken of the record in the representation proceeding,
Case 25 R( 6477. as the term "record" is defined in Secs. 102.68 and
102.
6 9
(g) of the Board's Rules and Regulations, Series 8, as amended. See
l.TV EI ciro. vstems, In,. 166 NI.RB 938 (1967), enfd. 388 F.2d 683 (('A. 4.
1968): (;,ildn Age Beveraig' (Coi 167 NLRB 151 (1967). enfd. 415 F.2d 26
(CA. 5. 1969). Interrlpe ('o s Penello, 269 F.Supp. 573 (D( Va., 1967):
stecitt ( orp., 164 NI.RB 378X 1967}. enfd 397 F.2d 91 (C A 7. 1968X): Sec
9(d) of the NL.RA, as amended.
Motion for Summary Judgment should not be grant-
ed. Respondent thereafter filed a response to the No-
tice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional l.abor 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 admits the re-
quest and refusal to bargain but in substance attacks
the validity of the Union's certification on the basis
that the Board erroneously set aside the original elec-
tion and directed a second election in the underlying
representation proceeding.
Review of the record herein, including the record
in Case 25 RC-6477, reveals that an election con-
ducted pursuant to a Stipulation for Certification
Upon Consent Election on December 22, 1976, re-
sulted in a vote of 169 for, and 179 against, the
Union, with 2 ballots challenged. Petitioner (the
Union herein) filed timely objections to conduct af-
fecting the results of the election, alleging, inter alia,
in its Objection 2 that the Employer (Respondent
herein) posted throughout its facility bulletins which
gave the employees the impression that the National
Labor Relations Board was partial to it.
After investigation, the Regional Director issued a
Report on Objections to Conduct Affecting Results
of Election and Recommendations to the Board on
March 11, 1977, in which he recommended that the
election held December 22, 1976, be set aside on the
basis of Petitioner's Objection 2 or, in the event that
the Board did not adopt such recommendation, that
a hearing be held on Objection 2 and certain other
objections. Thereafter, the Employer filed exceptions
to the Regional Director's report. On July 13, 1977,
the Board, having considered the Regional Director's
report, the Employer's exceptions thereto, and the
entire record, issued its Decision and Direction of
Second Election2 in which it adopted the Regional
Director's recommendations that Petitioner's Objec-
tion 2 be sustained, the election be set aside based
thereon, and a new election be directed.'
Pursuant thereto a rerun election was conducted
on August 18, 1977, the tally showing 190 ballots for,
and 179 against, the Union, with 21 ballots chal-
lenged, a number sufficient to affect the results of the
Not reported in bound volumes of Board Decisions.
The Board. therefore, found it unnecessary to pass upon the remaining
objections with respect to which the Regional Director, in the alternative.
had recommended a hearing be held.
236 NLRB No. 4
32
SPERRY RUBBER & PLASTICS CO.. INC.
election. Thereafter, the Employer filed timely objec-
tions to conduct affecting the results of the election.
alleging, in substance, that Petitioner, its agents, and
persons acting on its behalf had threatened, coerced.
and intimidated employees by damaging their prop-
erty and threatening them with harm and had en-
gaged in other improper acts and conduct. After in-
vestigation, the Regional Director on September 22.
1977, issued a Report on Objections to Conduct Af-
fecting Results of Rerun Election, Challenged Ballot,
Recommendations to the Board, Order Directing
Hearing, Order Consolidating Cases, and Notice of
Hearing. In said report, the Regional Director rec-
ommended to the Board that the Employer's Objec-
tions be overruled in their entirety: that the chal-
lenges to three ballots be sustained: that the
challenges to seven ballots be overruled; and that the
latter ballots be opened and counted. He further rec-
ommended that a hearing be held to resolve the is-
sues raised by the challenges to 11 ballots and that
Case 25-RC-6477 be consolidated for the purpose of
hearing with Case 25-CA-9084, a pending related
unfair labor practice proceeding. No exceptions to
said report were filed by either party. Accordingly,
on October 17, 1977, the Board issued an order
adopting the Regional Director's recommendations
as contained in his report and directing him to open
and count certain challenged ballots. On October 21,
1977, the challenged ballots were opened and count-
ed, and a revised tally was issued and served on the
parties showing that 191 votes were cast for, and 184
against, the Union, with 12 determinative challenges.
On November 15, 1977, the Acting Regional Direc-
tor approved a settlement agreement in Cases 25
CA-9084 and 25-RC-6477, wherein it was agreed
that eight unresolved challenged ballots would be
opened and counted. On November 23, 1977, said
challenged ballots were counted, and a second re-
vised tally of ballots was issued and served on the
parties showing that 195 votes were cast for, and 188
votes against, the Union. The four remaining ballots
were insufficient in number to affect the results of
the election. Thereafter, on November 30, 1977, the
Union was certified as exclusive bargaining agent of
the employees in the unit stipulated to be appropri-
ate.
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.4
'See Ptitshurgh Phile Glass (Xo v. I NLRB, 313 U S 146. 162 (1941).
Rules and Regulations of the Board. Sees, 102.67tf) and 102.69(c)
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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 proper-
ly litigable in this unfair labor practice proceeding.
In its response to the Notice To Show Cause. Re-
spondent contends that summary judgment is inap-
propriate here in light of its argument that the
Board's action in sustaining Petitioner's Objection 2
and setting aside the original election was violative of
the first and fifth amendments of the Constitution,
and that it is entitled to an opportunity to litigate the
vailidity of the second election. Prior to adopting the
findings, conclusions, and recommendations of the
Regional [)irector's initial report, the Board consid-
ered the report, Respondent's exceptions thereto, and
the entire record in the case. In its exceptions to that
report. Respondent specifically contended that the
Regional Director's recommendation that the elec-
tion be set aside based on Petitioner's Objection 2
was violative of the first amendment. Therefore, by
its adoption of the Regional Director's recommenda-
tion, the Board found Respondent's contention with-
out merit. Furthermore, Respondent filed no excep-
tions to the Regional Director's report recom-
mending that Respondent's objections with respect
to the second election be overruled in their entirety.
Finally, Respondent did not in the underlying repre-
sentation proceeding, and does not in the instant
proceeding, raise any substantial or material factual
issues which would warrant a hearing. Accordingly,
we grant the Motion for Summary Judgment.5
On the basis of the entire record, the Board makes
the following:
FIDIN(;S OF FAC
I THE BI SINESS OF RESPONDFNr
Respondent. an Indiana corporation, maintains
its principal office and facilities at Brookville. Indi-
ana, where it is engaged in the manufacture, sale, and
distribution of rubber and plastic products. During
the 12-month period preceding issuance of the com-
plaint. a representative period. Respondent. in the
course and conduct of its business operations, manu-
'I W' herche den\ the General (iounsel's motion to strike portions of
Respo.ndent's anser Wre further find, however, that Respondent's denials
in its answel t o the complaint raise no suuhbtantial or material issues of fact
Which warr.lnt is hearing
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factured, sold, and distributed products valued in ex-
cess of $50,000 which were shipped from its afore-
mentioned facilities directly to States other than the
State of Indiana.
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.
11. TE I. ABOR ORGCANIZATION INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica is a labor organization within the meaning of
Section 2(5) of the Act.
111 iilt IUNFAIR I.ABOR PRACT(ICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by Respondent at its Brookville, Indiana.
facilities, including all lead people, janitors, all
dye shop employees, all quality control employ-
ees, and all truckdrivers; but excluding all tech-
nical employees, all salesmen, all office clerical
employees. all professional employees, and all
guards and supervisors as defined in the Act.
2. The certification
On August 18. 1977, 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 25, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on November 30, 1977, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Reque.st To Bargain and Respondent's Refitsal
Commencing on or about December 2, 1977. and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-hbargaining representative of all the
employees in the above-described unit. Commencing
on or about December 1, 1977, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
on or about December 2, 1977, and at all times there-
after, refused to bargain collectively with the Union
as the exclusive representative of the employees in
the appropriate unit, and that, by such refusal, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and ( ) of the Act.
IV 'ILE 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 1, 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. TIlE 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 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 Poultryv Company, Inc.. 136
NLRB 785 (1962): Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(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:
CON( l USIONS OF LAW
1. Sperry Rubber & Plastics Co., Inc., is an em-
34
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union. United Automobile. Aero-
space and Agricultural Implement Workers of Amner-
ica is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Brookville. Indiana. fa-
cilities, including all lead people. janitors. all d e
shop employees. all quality control employees. and
all truckdrivers: but excluding all technical emplo!-
ees. all salesmen. all office clerical employees. all
professional employees. and all guards and super is-
ors as defined in the Act. constitute a unit appropri-
ate for the purposes of collective hargainineg * ithin
the meaning of Section 9(b) of the Act.
4. Since November 30. 1977. the above-nnamed la-
bor organization has been anad now is the certified
and exclusive representative of all eimplo ees 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 December 2. 1977. and
at all times thereafter. to bargain collectivel' with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. Bv the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining. and coercing emplo ees
in the exercise of the rights guaranteed to them in
Section 7 of the Act. and therehb has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 Re-
lations Board hereby orders that the Respondent.
Sperry Rubber & Plastics Co.. Inc.. Brookville. Indi-
ana, 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 Union.
United Automobile. Aerospace and Agricultural Im-
plement Workers of America. as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All production and maintenance employees em-
plovyed bh Respondent at its Brookville. Indiana.
facilities, including all lead people. janitors, all
d`e shop employees. all quality control emplo\-
ees. and all truckdrivers: but excluding all tech-
nical employees. all salesmen, all office clerical
employees, all professional employees. and all
guards and supervisors as defined in the Act.
(b) In an' like or related manner interfering with.
restiraining. or coercing employees in the exercise of
the riights cuLaranteed them in Section 7 of the Act.
2. 1 ake the following affirmative action w hich 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 enplo., ees in the aforesaid appropriate unit w.ith
respect to rates of pas. 'wages. hours. and other terms
and conditions of emplo ment. and. if an under-
standing is reached. embod`, such understanding in a
signed agreement.
(h) Post at its offices and facilities at Brookville.
Indiana. copies of the attached notice marked "Ap-
pendix.' (Copies of said notice, on forms provided
hb the Regional Director for Region 25, after being
dub, signed by Respondent's representative. shall be
posted bh Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
da`,s thereafter. in conspicuous places. including all
places where notices to employees are customaril'.
posted. Reasonable steps shall be taken b\ Respon-
dent to insure that said notices are not altered. de-
faced. or covered bv an' other material.
(c) NotifN the Regional Director for Region 25. in
,writing. within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In1 the elenl that this Order i, eniforced h .a Judgment of a t nited
Slate, ( OLIrrI Appeal. the 'ords In the notlce reading "Poted hi Order
of the N.ltn.ial l abort Relations Board" .hall read PPoied PFursunl 1t a
JhdInltl f tilhe I nited States ( ourt of A.ppeal, Fnfiorl.ine an Order of Ihe
NLitlill l I lhor Rclations Board"
APPEN DIX
NOTrCt- 1o E1PIO I-. FS
Positn) Bs' ORDI)R Of: THE
National Labor Relations Board
An Agenc? of the United States Government
WVit ni.i NOT refuse to bargain collectivel,
concerning rates of pa,. wages. hours, and other
terms and conditions of employment with Inter-
national Union. UInited Automobile. Aerospace
and Agricultural Implement Workers of Amer-
35
SPERRY RUBBER & PLASTICS CO., INC.
ica, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE Wil. 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 wn.I. 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 by Respondent at its Brookville, In-
diana, facilities, including all lead people, jan-
itors, all dye shop employees, all quality con-
trol employees, and all truckdrivers: but
excluding all technical employees, all sales-
men, all office clerical employees, all profes-
sional employees, and all guards and supervis-
ors as defined in the Act.
SPERRY RUBBER & PLASTI(CS Co. IN(.
36