Eurodrive, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1466 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eurodrive, Inc. and Teamsters Local Union No. 957,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 8-CA-15348
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on November 17, 1981, by
Teamsters Local Union No. 957, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on Eurodrive, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 8, issued a complaint on Decem-
ber 21, 1981, against Respondent, alleging that Re-
spondent 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 the com-
plaint and notice of hearing before an administra-
tive 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
23, 1981, following a Board election in Case 8-RC-
12410, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about November
9, 1981, 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 January 4,
1982, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On January 18, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 22,
1982, 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 proceeding,
Case 8-RC-12410, 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
LTV Electrosysrems, Inc., 166 NLRB 938 (1967), enfd. 388 F 2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
260 NLRB No. 200
thereafter filed a response to the Notice To Show
Cause.
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 admits its
refusal to bargain with the Union. Respondent
denies, however, that it thereby violated Section
8(a)(5) and (1) of the Act, arguing that the Board
improperly certified the Union. Respondent asserts
that the Union engaged in conduct which improp-
erly influenced the outcome of the election, and
that the Board erroneously overruled, and failed to
direct a hearing on, its objections. The General
Counsel contends that Respondent is attempting to
relitigate the issues it raised in the related represen-
tation proceeding. We agree with the General
Counsel.
Review of the record herein, including the
record in Case 8-RC-12410, shows that pursuant
to a Stipulation for Certification Upon Consent
Election approved by the Regional Director on
March 16, 1981, an election was conducted on
April 30, 1981. The tally was 15 ballots for, and 12
against, the Union, with 1 nondeterminative chal-
lenged ballot. Thereafter, Respondent filed timely
objections to the conduct of the election alleging,
that (1) the Union, by and through its agents and
representatives, created a pervasive atmosphere of
fear and coercion that prevented the employees
from exercising their right to a free choice in the
election; (2) that the Union made misrepresenta-
tions of material facts; (3) that employees were har-
assed and intimidated by agents and representatives
of the Union, such incidents including racial harass-
ment; and (4) that the Union claimed that since,
during negotiations, the Employer has to start with
present benefits, it was impossible to lose benefits.
On June 8, 1981, the Regional Director issued
his Report on Objections recommending that Re-
spondent's objections be overruled and that a Cer-
tification of Representative issue in favor of the
Union. On July 1, 1981, Respondent filed excep-
tions to the Regional Director's report contending
that the Regional Director should have sustained
its Objections 1, 2, and 3, or, in the alternative, di-
rected a hearing to resolve the material and sub-
stantial issues of fact raised by those objections. On
September 23, 1981, the Board issued its Decision
and Certification of Representative adopting the
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EURODRIVE, INC.
Regional Director's findings and recommendations
and certifying the Union as the exclusive repre-
sentative of Respondent's employees in the appro-
priate unit. The Board specifically declined to
direct a hearing on Respondent's objections.
Respondent's request for reconsideration of the
Board's Decision and Certification of Representa-
tive was denied by the Board on October 30, 1981.
It thus appears that Respondent is attempting to
raise herein issues which were raised and deter-
mined in the underlying representation case.
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.2
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
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 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 Maryland corporation engaged in the
manufacture of industrial power transmission equip-
ment at it facility at Troy, Ohio, and annually, in
the course and conduct of its business, ships goods
valued in excess of $50,000 from its Troy, Ohio, fa-
cility directly to points located outside the State of
Ohio.
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.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 957, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
2 See Pittsburgh Plate Glass Co v .NL.R.B., 313 U.S 146, 162 (1941);
Rules and Regulations of the Board, Sees 102.67(f) and 102 69(c)
organization within the meaning of Section 2(5) of
the Act.
IIl. 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 leadmen and regular part-time employ-
ees, excluding all office clerical employees,
guards and supervisors as defined in the Act.
2. The certification
On April 30, 1981, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 8, designated the Union
as their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on September 23, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 4, 1981, 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 November 9, 1981, 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
November 9, 1981, 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, Respond-
ent 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-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Eurodrive, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Teamsters Local Union No. 957, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees,
including leadmen and regular part-time employees,
excluding all office clerical employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since September 23, 1981, 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 November 9, 1981,
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, Re-
spondent 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, Respond-
ent 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,
Eurodrive, Inc., Troy, Ohio, 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 Teamsters Local
Union No. 957, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All production and maintenance employees in-
cluding leadmen and regular part-time employ-
ees, excluding 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 Troy, Ohio, facility copies of the
attached notice marked "Appendix."3 Copies of
3 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
Continued
1468
EURODRIVE, INC.
said notice, on forms provided by the Regional Di-
rector for Region 8, after being duly signed by Re-
spondent'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 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Teamsters Local Union No. 957, a/w In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive representative of the employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions 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 leadmen and regular part-time em-
ployees, excluding all office clerical employ-
ees, guards and supervisors as defined in the
Act.
EURODRIVE, INC.
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