Hepa Corp.

National Labor Relations Board - Board Decisions

Sep 16, 1977

232 N.L.R.B. 37 (N.L.R.B. 1977)

HEPA CORPORATION
Hepa Corporation and California Teamsters Public,
Professional and Medical Employees Union Local
No. 911, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 21-CA- 15679
September 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on April 29, 1977, by
California Teamsters Public, Professional and Medi-
cal Employees Union Local No. 911, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on Hepa Corporation, herein
called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 21, issued a complaint on May
17, 1977, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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 March 25,
1977, following a Board election in Case 21-RC-
14673, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about April 26, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues 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. On May 27, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
Specifically, Respondent admitted certain of the
factual allegations of the complaint but denied that it
committed the unfair labor practices alleged. Affir-
matively, Respondent asserts that the Board erred in
overruling its objections to the election and that the
certification of the Union was, therefore, improper
and invalid.
I Official notice is taken of the record in the representation proceeding,
Case 21-RC-14673, as the term "record" is defined in Seecs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8. as amended. See
LTV Electrosystems, 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); Intertvpe Co. v. Penello. 269 F.Supp. 573 (D.C. Va.. 1967);
232 NLRB No. 7
On June 14, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 29, 1977, 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. On July 16, 1977, Respondent filed a
response in opposition to Notice To Show Cause why
Summary Judgment 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 proceedings 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 certain
factual allegations of the complaint but attacks the
validity of the Union's certification on the grounds
that the Board erred in overruling its objections to
the election in the underlying representation case. It
further asserts that there are factual issues as yet
unresolved which require a hearing for proper and
complete adjudication. Counsel for the General
Counsel, on the other hand, argues that there are no
litigable matters warranting a hearing because the
issues concerning the Union's certification were
litigated and determined in the underlying represen-
tation case. We agree with the General Counsel.
A review of the record, including that of the
representation proceeding, Case 21-RC-14673, indi-
cates that the Union won the election conducted on
July 30, 1976, pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally of votes
showed that, of 63 valid ballots cast, 48 were for, and
15 against, the Union, with 2 challenged ballots
which were insufficient to affect the results of the
election. The Employer, Respondent herein, filed
timely objections to the election alleging, in sub-
stance, that (1) an in-plant organizing committee
created an atmosphere of fear and coercion prevent-
ing a free election by intimidating and demeaning
pro-Employer employees, and that members of this
in-plant committee should be deemed to be union
agents; (2) employees on the in-plant committee
threatened bodily harm to two unit employees who
had spoken against the Union; (3) a union represen-
tative threatened an employee with police eviction
Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 Respondent's request for oral argument is hereby denied as the record
and the briefs adequately set forth the positions and contentions of the
parties.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from an organizational meeting because he expressed
sentiments against the Union; and (4) material
misrepresentations occurred during the election
campaign and on election-eve.
The Regional Director directed a hearing to resolve
the issues raised by the Employer's objections, and
on December 3, 1976, the Hearing Officer issued his
report and recommendations in which he concluded
that all objections should be overruled and the
Union certified. Timely exceptions to the Hearing
Officer's report were filed by the Employer who
contended that the Hearing Officer's findings,
conclusions, and recommendations should be re-
versed, the election set aside, and a second election
directed. On March 25, 1977, the Board, after
reviewing the record in the light of the Employer's
exceptions, adopted the Hearing Officer's findings
and recommendations and certified the Union.
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.3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence, 4 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. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Hepa Corporation is a California corporation
engaged in the business of manufacturing high
efficiency air filtration products in Anaheim, Califor-
nia. During the last 12-month period, it purchased
and received goods valued in excess of $50,000
directly from suppliers located outside the State of
California.
3 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.60(c).
4 Respondent asserts in its response to the Notice To Show Cause that it
has become aware of evidence indicating that at least one member of the in-
plant organizing committee was a paid organizer of Teamsters Local 911.
Beyond this bare assertion, Respondent has failed to show that through the
exercise of due diligence it could not have uncovered this evidence in time to
present it in support of its objections at the representation hearing. Thus, it
We find, on the basis of the foregoing, that
Respondent 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.
1I. THE LABOR ORGANIZATION INVOLVED
California Teamsters Public, Professional and
Medical Employees Union Local No. 911, Interna-
tional Brotherhoood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
i. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act: 5
All production and maintenance employees,
shipping and receiving employees, laboratory
technicians, plant clerical employees, and lead
persons employed by the Employer at its facility
located at 3071 Coronado Street, Anaheim,
California, but excluding all other employees,
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
2. The certification
On July 30, 1976, 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 Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 25, 1977, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
does not constitute newly discovered or previously unavailable evidence.
Moreover, even if Respondent's above assertion were substantiated,
Respondent has failed to show that such paid organizer has engaged in
conduct warranting relitigation of the representation proceeding.
5 In its Decision and Certification of Representative dated March 25,
1977, the Board inadvertently failed to list the exclusions from the unit
certified.
38
HEPA CORPORATION
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 29, 1977, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about April 26, 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 collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
April 26, 1977, 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, Respondent 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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett 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. Hepa Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. California Teamsters Public, Professional and
Medical Employees Union Local No. 911, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees,
shipping and receivinfg employees, laboratory techni-
cians, plant clerical employees, and lead persons
employed by the Employer at its facility located at
3071 Coronado Street, Anaheim, California, but
excluding all other employees, office clerical employ-
ees, professional employees, 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 March 25, 1977, 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 April 26, 1977, 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(aXl) 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 the Respondent,
Hepa Corporation, Anaheim, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with California Teamsters
Public, Professional and Medical Employees Union
Local No. 911, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees,
shipping and receiving employees, laboratory
technicians, plant clerical employees, and lead
persons employed by the Employer at its facility
located at 3071 Coronado Street, Anaheim,
California, but excluding all other employees,
office clerical employees, professional employees,
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 3071 Coronado Street, Anaheim,
California, facility copies of the attached notice
marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region
21, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent 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. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
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 Appeals Enforcing an Order of the
National Labor Relations Board."
(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.
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 Califor-
nia Teamsters Public, Professional and Medical
Employees Union Local No. 911, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, 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,
shipping and receiving employees, laborato-
ry technicians, plant clerical employees, and
lead persons employed by the Employer at
its facility located at 3071 Coronado Street,
Anaheim, California, but excluding all other
employees, office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
HEPA CORPORATION
40