Rodac Corporation

National Labor Relations Board - Board Decisions

Mar 17, 1982

260 N.L.R.B. 1027 (N.L.R.B. 1982)

RODAC CORPORATION
Rodac Corporation and General Warehousemen,
Local 598, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 21-CA-20713
March 17, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on October 8, 1981, by Gen-
eral Warehousemen, Local 598, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on Rodac Corporation,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 21, issued a complaint
on November 5, 1981, 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
14, 1981, following a Board election in Case 21-
RC-16611, 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 September
30, 1981, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On
November 17, 1981, Respondent filed its answer to
the complaint admitting in part, and denying in
part, the allegations in the complaint.
On December 7, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December
11, 1981, 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
' ()fficial riullc i, takenl of Ihe record in the representatrlo proceedling.
Case 21 RC Ihhl. 1, a the term "record" is definled in Ses 1()02S and
102 h9(g) of the Ioard ', Rules and RegulatllonI, Series 8. as amended See
/.1' f Eltertrowrwe rnr I,r. Ihht NI RH 938 (19'7), enlfd l 381 2(d h83 (4th
Cir 19o0i; (io/dr , ,l gc Brl'rg.,' 'o, It' NI RH 151 (1ih7). enid 415
F 2d 26 (5tlh ( r l5r) Interrp (CJ X P I'.r,/h, 2NO I SLupp 573
(DC Va t')h7) 1!,/hi,! (< r?. Iht,4 NI RII 17'S lt4h'. enil 1'd )7 F2d QI
17th Cir 1Nhs: Sct S4d) ,r the NI RA. as .inlrlldlJl
260 NLRB No. 138
failed to file 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, Respondent
denies that a majority of the employees in the unit
found appropriate validly designated and selected
the Union as their representative for the purposes
of collective bargaining with Respondent. Re-
spondent also denies that the Board's certification
of the Union as the exclusive representative of the
aforesaid employees was valid.
Review of the record herein reveals that in Case
21-RC-16611 the petition was filed by the Union
on December 22, 1980. The parties entered into a
Stipulation for Certification Upon Consent Election
agreement. The election was held on February 12,
1981. At the conclusion of the balloting, the tally
revealed that 151 votes had been cast for and 51
votes had been cast against the Union. There were
21 challenged ballots. Respondent filed objections
to the conduct of the election. On April 2, 1981,
the Regional Director issued and served on the
parties a Report on Objections in which he recom-
mended that the election be set aside and a new
election be directed. No exceptions were filed to
the Regional Director's report. Accordingly, the
Board, on April 21, 1981, adopted the Regional Di-
rector's recommendations as contained in his
report.
The second election was held on May 28, 1981.
At the conclusion of the balloting, the tally re-
vealed that 118 votes had been cast for and 49 had
been against the Union. There were 21 challenged
ballots. Respondent filed objections to the conduct
of the election. On July 7, 1981, the Regional Di-
rector issued and served on the parties a Supple-
mental Report on Objections in which he over-
ruled Respondent's objections and recommended
that a certification of representative be issued to
the Union. Exceptions were filed by Respondent to
the Regional Director's supplemental report. On
September 14, 1981, the Board issued a Decision
and Certification of Representative (not reported in
volumes of Board Decisions) wherein it adopted
the Regional Director's findings and recommenda-
tions and certified the Union.
Following a request by the Union, by letter
dated September 23, 1981, that Respondent engage
in collective-bargaining negotiations with the
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, Respondent, by letter dated September 30,
1981, refused to recognize and bargain in good
faith with the Union as the exclusive bargaining
representative of its employees in the certified unit.
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
I. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged
in the manufacture of pneumatic tools in Carson,
California. In the course and conduct of its busi-
ness operations, Respondent annually sells and
ships goods and products valued in excess of
$50,000 directly to customers located outside the
State of California.
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.
II1. THE LABOR ORGANIZATION INVOLVED
General Warehousemen, Local 598, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion 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
' See P'irrlhurgh Plate (;i, (o N . I..R H, 313 US 146, Ih2 (1941):
Rules and Rcegulations of the Board. Ses 1(12 67(f) and 102 69(c)
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
warehousemen and truck drivers employed by
the Employer at its facility located at 1005
East Artesia Boulevard, Carson, California; ex-
cluding all other employees, lead persons,
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
2. The certification
On May 28, 1981, 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
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on September 14, 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 September 23, 1981,
and at all times thereafter, the Union has requested
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 September 30, 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
September 30, 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-
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-
1028
R()DAC CORPORATI()N
structing commerce and the free flow of
commerce.
V. THI RELM 1)Y
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:
CONCI.USIONS F01 LAW
1. Rodac Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. General Warehousemen, Local 598, 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,
warehousemen, and truckdrivers employed by Re-
spondent at its facility located at 1005 East Artesia
Boulevard, Carson, California, excluding all other
employees, lead persons, office clerical employees,
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 September 14, 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 September 30, 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,
Rodac Corporation, Carson, 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 General Ware-
housemen, Local 598, 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,
warehousemen and truck drivers employed by
the Employer at its facility located at 1005
East Artesia Boulevard, Carson, California; ex-
cluding all other employees, lead persons,
office clerical employees, professional employ-
ees, 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.
1029
DECISIONS O1F NATIONAL l ABOR RELATI()NS BOARD
(b) Post at its Carson, California, facility copies
of the attached notice marked "Appendix. " 3 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 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 21,
in writing, within 20 days from the date of this
Order, what steps Respondent Union has taken to
comply herewith.
3 In the event that this Order is enforced by a Judgment oif a United
States Court of Appeals, the words in the ntotice reading "Posted by
Order of the National L.ahbor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals lnlforcing an
Order of the National L.abor 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 General Warehousemen, Local 598, 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 WII.L, 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,
warehousemen and truck drivers employed
by the Employer at its facility located at
1005 East Artesia Boulevard, Carson, Cali-
fornia; excluding all other employees, lead
persons, office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
RODAC CORPORATION
1030