Decibel Products, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1980

248 N.L.R.B. 1337 (N.L.R.B. 1980)

DECIBEL PRODUCTS, INC. 1337
Decibel Products, Inc. and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW. Case
16-CA-8836
April 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on December 12, 1979, by
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of Amer-
ica, UAW, herein called the Union, and duly
served on Decibel Products, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regioral Director
for Region 16, issued a complaint on December 20,
1979, 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 proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
28, 1979, following a Board election in Case 16-
RC-7936, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
7, 1979, 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 or about
December 31, 1979, Respondent filed its answer to
the complaint admitting in part, and denying in
part, the allegations in the complaint.
On January 21, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 31,
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 Sum-
mary Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case 16-RC-7936, as the term "record" is defined in Secs. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended
See LTV Electrosysrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968):; Golden Age Beverage C., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969): Intertype Co. av. Penello, 269 F.Supp. 573
(D C.Va. 1967): Follett Corp.. 164 NLRB 378 (1967), enfd 397 F 2d 91
(7th Cir 1968), Sec 9(d) of the NLRA, as amended
248 NLRB No. 177
thereafter filed an answer opposing General Coun-
sel's Motion for Summary Judgment.
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 answer oppos-
ing the Motion for Summary Judgment, Respon-
dent asserts that the Union's certification was im-
properly issued in Case 16-RC-7936 because the
Board agent who conducted the election and cer-
tain union adherents engaged in actions which de-
stroyed the laboratory conditions necessary for the
holding of a fair and valid election. In this regard,
Respondent contends that the Board abused its dis-
cretion by refusing to set aside the June 1, 1979,
election held therein on the basis of Respondent's
objections, or by refusing to order a hearing for
the purpose of resolving the issues relating to the
conduct of that election as raised by Respondent's
objections. Respondent admits that it has refused,
and continues to refuse, to bargain with the Union,
but alleges that it has no legal obligation to do so.
Respondent states in its answer to the Notice To
Show Cause that it intends by its refusal to bargain
with the Union to challenge the Board's certifica-
tion of the Union inasmuch as Board decisions in
representation proceedings are normally not re-
viewable by courts of appeals. 2
The General Counsel contends that Respondent's
answer raises no issues that were not already liti-
gated by the parties and decided by the Board in
the underlying representation proceeding. In addi-
tion, the General Counsel argues that Respondent's
answer plus the record in Case 16-RC-7936 consti-
tute an admission that it declined to recognize and
bargain with the Union which had been certified as
the collective-bargaining representative of the em-
ployees in the appropriate unit described below,
and, therefore, Respondent is violating Section
8(a)(5) and (1) of the Act.
Our review of the record herein, including the
record in Case 16-RC-7936, discloses that the
Union filed a petition for an election on April 24,
1979. Pursuant to a Stipulation for Certification
Upon Consent Election, an election by secret ballot
was conducted on June 1, 1979, among the em-
ployees in the following appropriate unit:
2 Respondent also states it has no knowledge as to whether the Peti-
tioner is a labor organization. However, the Board has in many previous
cases found Petitioner to be a labor organization and, in fact. Respondent
so stipulated in the underlying representation proceeding.
DECIBEL PRODUCTS, INC
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees, in-
cluding plant clerical employees, employed by
Respondent at its facility in Dallas, Texas, ex-
cluding all office clerical employees, guards
and supervisors as defined in the Act.
The tally of ballots served on the parties at the
conclusion of the election showed that 82 votes
were cast for, and 58 against, the Union, with 9
challenged ballots, an insufficient number to affect
the results.
On June 6, 1979, Respondent filed timely objec-
tions to conduct affecting the results of the elec-
tion. After an investigation of the objections, the
Regional Director for Region 16 issued a Report
on Objectins on July 17, 1979, in which he recom-
mended that Respondent's objections be overruled
in their entirety and that the Union be certified as
the collective-bargaining representative of the em-
ployees in the appropriate unit as described in the
Stipulation for Certification Upon Consent Elec-
tion.
On August 4, 1979, Respondent timely filed ex-
ceptions to the Regional Director's Report on Ob-
jections. In its exceptions, Respondent requested
that the Board set aside the election, or, in the al-
ternative, hold a hearing on the exceptions.
The Board, on September 28, 1979, issued a De-
cision and Certification of Representative in Case
16-RC-7936, in which it certified the Union as the
exclusive bargaining representative of the employ-
ees in the aforementioned appropriate unit.3
On October 9, 1979, Respondent filed a motion
for reconsideration by the full Board of the Board's
Decision. Respondent's motion for reconsideration
was denied on October 30, 1979.
Subsequently, by letter dated December 3, 1979,
the Union requested Respondent to meet with it
for purposes of collective bargaining. Respondent
replied by letter on or about December 7, 1979,
that it refused to bargain with the Union. Respon-
dent has refused at all times since December 7,
1979, to bargain with the Union.
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. 4
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
a Not published in bound volumes of Board Decisions.
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).
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding.
In its answer to the Motion for Summary Judg-
ment, Respondent does contend that a memoran-
dum submitted on October 19, 1979 to the Acting
Regional Director for Region 16 by a field examin-
er supervisor in opposition to Respondent's motion
for reconsideration raises substantial and material
factual issues which can be resolved only through a
hearing, and that it was unfair for the Board to
have this document without giving Respondent an
opportunity to reply to it. We find no merit in this
contention.
The memorandum referred to by Respondent, as
well as a memorandum to the Regional Director
from the Board agent who conducted the election
in question here, were attached to the General
Counsel's Motion for Summary Judgment. Neither
memorandum was presented to or considered by
the Board at any time prior to the Motion for Sum-
mary Judgment. Thus, until they were attached as
exhibits to that motion, the two memoranda were
and remained internal Regional Office communica-
tions of which the Board had no knowledge. Fur-
ther, we do not rely on either of the memoranda in
granting the Motion for Summary Judgment.5
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
1. THE BUSINESS OF RESPONDENT
Respondent is and has been at all times material
herein a Texas corporation engaged in the oper-
ation of a facility in Dallas, Texas, where it manu-
factures radio equipment. Respondent annually sells
products valued in excess of $50,000 directly to
customers located outside the State of Texas.
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.
11I THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of Amer-
' We have considered, however, the field examiner supervisor memo-
randum in connection with Respondent's assertion that it raises issues
warranting a hearing, and, to that extent, find such assertion to lack
merit.
---
DECIBEL PRODUCTS, INC. 1339
ica, UAW, is a labor organization within the mean-
ing 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:
All production and maintenance employees, in-
cluding plant clerical employees, employed by
Respondent at its facility in Dallas, Texas, ex-
cluding all office clerical employees, guards
and supervisors as defined in the Act.
2. The certification
On June 1, 1979, 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 16, designated the Union as
their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on September 28, 1979,
and the Union continues to be such exclusive rep-
resentative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 3, 1979, 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 December 7, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
December 7, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 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.
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:
CONCLUSIONS OF LAW
1. Decibel Products, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace & Agricultural Implement Workers of
America, UAW, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including plant clerical employees, employed by
Respondent at its facility in Dallas, Texas, exclud-
ing all office clerical employees, guards and super-
visors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since September 28, 1979, 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-
DECIBEL PRODUCTS, INC.
1340 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about December 7, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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,
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,
Decibel Products, Inc., Dallas, Texas, 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 & Agricul-
tural Implement Workers of America, UAW, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees, in-
cluding plant clerical employees, employed by
Respondent at its facility in Dallas, Texas, ex-
cluding all office clerical 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 Dallas, Texas, location copies of
the attached notice marked "Appendix."6 Copies
I 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
of said notice, on forms provided by the Regional
Director for Region 16, 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 16,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant 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 International Union, United Automobile,
Aerospace & Agricultural Implement Workers
of America, UAW, 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 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 represen-
tative 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 agreement. The bargaining unit is:
All production and maintenance employees,
including plant clerical employees, em-
ployed by us at our present Dallas, Texas,
location, excluding all office clerical em-
ployees, guards and supervisors as defined in
the Act.
DECIBEL PRODUCTS, INC.