Alson Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1974

211 N.L.R.B. 876 (N.L.R.B. 1974)

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alson Manufacturing Aerospace Division of Alson
Industries , Inc. and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, U.A.W., Local 509.
Case 21-CA-12363
June 24, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on January 16, 1974, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
U.A.W., Local 509, herein called the Union, and
duly served on Alson Manufacturing Aerospace
Division of Alson Industries, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 21, issued a complaint on February 20, 1974,
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, 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 December 4,
1973, following a Board election in Case
21-RC-13252, the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; I
and that, commencing on or about January 11, 1974,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On March 4, 1974,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint, and alleging one affirmative
defense.
On March 21, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 27,
1974, 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. Respon-
Official notice is taken of the record in the representation proceeding,
Case 21 -RC-13252, 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);
dent thereafter filed a response to Notice To Show
Cause, entitled "Opposition to Counsel for the
General Counsel's Motion for Summary Judgment
and Show of Cause Why Said Motion Should Not be
Granted."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 the Respondent contends
that the certification of the Union was improper
because the Union's preelection conduct, as set forth
in its objections to the election and exceptions to the
Regional Director's report on these objections,
invalidated the election as an expression of employee
free choice. The Respondent, in the alternative to
setting aside the election, requests a hearing to
resolve the issues raised by its objections.
Review of the record herein, including the record
in Case 21-RC-13252, reveals an election conducted
pursuant to a Stipulation for Certification Upon
Consent Election on June 28, 1973, which resulted in
a 27 to 17 vote in favor of the Union, with 6
challenged ballots. The Respondent filed timely
objections to conduct affecting the results of the
election, alleging in substance that the Union (1) was
electioneering in the vicinity of the polls on election
day, (2) had made misrepresentations concerning the
Respondent's honesty and income, the applicability
of the terms of a contract the Union had with
another employer, and the filing of charges with the
Board prior to the election, (3) threatened employees
and created an aura of fear prior to the election, (4)
represented and otherwise created an impression that
cards would be needed to vote in the election, and
that once an employee had signed a card he was
obligated to vote for the Union, and (5) denied it had
a contract with another employer. The Regional
Director investigated these objections and, on Sep-
tember 24, 1973, issued a Report on Objections, in
which he recommended overruling the objections in
their entirety and certifying the Union.
The Respondent filed timely exceptions, with
supporting brief and affidavits, to the Regional
Director's report, reasserting its objections and
submitting that the Regional Director, in refusing to
Golden Age Beverage Co., 167 NLRB 151, 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, enfd. 397 F.2d 91 (C.A. 7, 1968 ); Sec. 9(d) of the NLRA.
211 NLRB No. 134
ALSON MFG. AEROSPACE DIVISION
set aside the election, had misapplied the facts and
not considered certain factors allegedly having a
bearing on the issues. The Respondent also requested
a hearing on its objections to resolve the issues raised
thereby. The Board issued its Decision and Certifica-
tion of Representative on December 4, 1973, in
which, after consideration of the entire record, it
adopted the findings, conclusions, and recommenda-
tions of the Regional Director, finding that the
Respondent's exceptions raised no substantial or
material issues of fact or law which warranted
reversal of the Regional Director or required a
hearing and, accordingly, certified the Union.
It thus appears that the Respondent is attempting,
in this unfair labor practice proceeding, to relitigate
issues , including the requirement of a hearing, that
have been litigated in the underlying representation
case.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging 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.2
All issues raised by the Respondent in this
proceeding 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,
grant the 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, a California corporation, is engaged
in the manufacture of aerospace components at its
facilities located at 400 West Rosecrans Avenue, 422
West Rosecrans Avenue, and 14901 South Broad-
way, in Gardena, California.3 Respondent, in the
normal course and conduct of its operations de-
scribed above, annually sells and ships goods and
products in excess of $50,000 directly to customers
located outside the State of California.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
2 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).
3 The parties , by stipulation dated January 25 and March I, 1974,
877
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 Union, United Automobile, Aero-
space and Agricultural Implement Workers of Ameri-
ca, U.A.W., Local 509, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees em-
ployed by Respondent at its facilities set forth
above; excluding office clerical employees, pro-
fessional employees, watchmen, guards, and
supervisors as defined in the Act.
2. The certification
On June 28, 1973, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 21 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 December 4, 1974, 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 December 12, 1973, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 11, 1974, and continu-
ing at all times thereafter to date, the 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.
amended the address of Respondent 's facilities to substitute "Avenue" for
"Boulevard," wherever appearing in any document in this proceeding.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the Respondent has,
since January 11, 1974, 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, Respon-
dent 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 opera-
tions 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 commerce and the free flow of com-
merce.
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 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; 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. Alson Manufacturing Aerospace Division of
Alson Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Union, United Automobile, Ae-
rospace and Agricultural Implement Workers of
America, U.A.W., Local 509, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its facilities set forth
above; excluding office clerical employees, profes-
sional employees, watchmen, guards, and supervisors
as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since December 4, 1973, 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 purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about January 11, 1974, 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 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
Relations Board hereby orders that Respondent,
Alson Manufacturing Aerospace Division of Alson
Industries, Inc., Gardena, 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
conditions of employment with International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, U.A.W., Local 509,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its facilities set forth
above; excluding office clerical employees, pro-
fessional employees, watchmen, 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.
ALSON MFG. AEROSPACE DIVISION
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 facilities located at 400 West
Rosecrans Avenue, 422 West Rosecrans Avenue, and
14901 South Broadway, Gardena, California, copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 21 after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by , it for 60 consecutive days there+-
aft;er,in conspicuousl places, including all places where
notices 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 21, 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 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 Union, United Automobile, Aerospace
879
and Agricultural Implement Workers of America,
U.A.W., Local 509, 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
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
employed by Respondent at its facilities set
forth above ; excluding office clerical em-
ployees, professional employees, watchmen,
guards , and supervisors as defined in the
Act.
ALSON MANUFACTURING
AEROSPACE DIVISION OF
ALSON INDUSTRIES, INC.
(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 compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5254.