Sioux Products, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1981

258 N.L.R.B. 287 (N.L.R.B. 1981)

SIOUX PRODUCTS. INC.
Sioux Products, Inc. and Production Workers Union
of Chicago and Vicinity, Local 707, an affiliate
of the National Production Workers Union.
Case 13-CA-21115
September 25, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on May 18, 1981, by Pro-
duction Workers Union of Chicago and Vicinity
Local 707, an affiliate of the National Production
Workers Union, herein called the Union, and duly
served on Sioux Products, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional Di-
rector for Region 13, issued a complaint on June
15, 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 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 January 14,
1981, following a Boardelection in Case 13-RC-
15320, 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 January
22, March 9, and April 24, 1981, and at all times
thereafter, Respondent has refused, and continues
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 July 2, 1981, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On July 27, 1981, counsel for the General Coun-
sel filed directly with the Board a motion to trans-
fer proceedings to the Board and a Motion for
Summary Judgment. Subsequently, on August 5,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
I Official notice is taken of the record in the representation proceed-
ing, Case 13-RC-15320, 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 Eleclrosysemv, Inc., 166 NLRB 938 (1967). enfd 388 F.2d 83
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1969), enfd 415
F.2d 26 (5th Cir. 1969); Intertype Co. . Penello, 269 F.Supp. 573
(D.C.Va. 1967): Follell Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968): Sec. 9(d) of the NLRA, as amended.
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted.
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 main-
tains that certification of the Union was invalid.
Respondent admits its refusal to bargain but denies
that its refusal violated Section 8(a)(5) and (1) of
the Act. Specifically, Respondent contends that the
Union should not have been certified as the collec-
tive-bargaining representative of Respondent's em-
ployees because a majority of the employees in the
appropriate unit failed to select the Union as their
representative in the election held February 1,
1980. Respondent argues that valid ballots, which
would have been determinative of the outcome of
the election if considered in conjunction with chal-
lenged ballots, were improperly voided and that
determinative challenged ballots were never
opened and counted. Respondent further maintains
that the Union and Board agent engaged in objec-
tionable conduct that affected the results of the
election and that its objections to such misconduct
were improperly overruled. In the Motion for
Summary Judgment the General Counsel argues
that there are no issues requiring a hearing and that
Respondent is attempting to relitigate issues that
were raised and determined by the Board in the
underlying representation case. We agree with the
General Counsel.
The record, including the record in the underly-
ing representation case, Case 13-RC-15320, reveals
that on November 30, 1979, pursuant to a petition
filed on November 13, 1979, the Regional Director
approved a Stipulation for Certification Upon Con-
sent Election in Case 13-RC-15320. On February
1, 1980, an election by secret ballot was conducted
under the direction and supervison of the Regional
Director.
The tally of ballots shows that, of approximately
107 eligible voters, 52 cast votes for, and 44
against, the Union; I ballot was voided, and 8 bal-
lots were challenged, a sufficient number to affect
the results of the election.
On February 8, 1980, Respondent filed timely
objections to conduct affecting the results of the
election. The objections alleged that the Union's
election observer frivolously challenged the ballot
of an eligible voter solely for the purpose of harass-
ing her; that the Board agent in charge of the elec-
258 NLRB No. 35
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion prevented the voter so harassed from receiving
assistance and thereby may have caused her to vote
erroneously or to void her ballot; that when an-
other employee inadvertently voided her ballot, the
Board agent, although informed of the voiding by
Respondent, refused to permit the employee to
vote again; that the Board agent interfered with
Respondent's right to challenge rulings on ballots;
and that the Board agents destroyed the neutrality
of the Board's election process by aligning them-
selves with the Union and participating in the
Union's challenges of voters. On March 4, 1980,
the Regional Director issued a Report on Chal-
lenged Ballots and Notice of Hearing on Objec-
tions, in which he upheld the Board agents' void-
ing of two ballots, found the remaining seven chal-
lenged ballots insufficient in number to affect the
results of the election, and ordered that a hearing
be conducted on the objections filed by Respond-
ent and the case be immediately thereafter trans-
ferred to the Board for disposition on the merits.
On May 30, 1980, the Board issued a Decision
and Order upholding the Regional Director's dis-
position of the voided ballots and ordering that a
hearing be held on Respondent's objections and
that the hearing officer designated to conduct the
hearing prepare a report containing resolutions re-
garding credibility of witnesses, findings of fact,
and recommendations to the Board as to the dispo-
sition of the objections. Thereafter, on June 5 and
10, 1980, a hearing was held concerning the objec-
tions, and on October 21, 1980, Hearing Officer
Barbara Baird issued her Report on Objections to
Conduct Affecting Results of Election and Recom-
mendation to the Board, in which she recommend-
ed that Respondent's objections be overruled in
their entirety and a certification of representative
issue. On January 14, 1981, the Board issued a De-
cision and Certification of Representative 2 in
which it adopted the Hearing Officer's findings and
recommendations and certified the Union as the ex-
clusive representative of Respondent's employees
in the appropriate unit for purposes of collective
bargaining.
On January 22, 1981, by letter, and again on
March 9, 1981, by mailgram, and April 24, 1981,
by telegram, the Union requested that Respondent
bargain with it concerning the rates of pay, wages,
hours, and other terms and conditions of employ-
ment of unit employees. On or about January 22,
1981, and at all times subsequent, Respondent re-
fused, and continues to refuse, to honor the certifi-
cation and bargain with the Union because of its
belief that the Board erred in overruling its objec-
tions to the election conducted on February 1,
2 Not reported in volumes of Board Decisions.
1980, and in its disposition of the voided ballots.
Thus, it appears that Respondent is attempting to
raise in this proceeding issues that were raised and
determined 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.3
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 an Illinois corporation with a fa-
cility in Addison, Illinois, where it is engaged in
the manufacture of plastic injection molding parts.
In the course and conduct of its operations, during
the past 12 months, a representative period, Re-
spondent has purchased and received goods and
materials valued in excess of $50,000 from enter-
prises located within the State of Illinois, each of
which other enterprises received the said goods
and materials directly from points outside the State
of Illinois.
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
Production Workers Union of Chicago and Vi-
cinity, Local 707, an affiliate of the National Pro-
duction Workers Union, is a labor organization
within the meaning of Section 2(5) of the Act.
' See Pittsrhurgh Plate Glass Co. . N.L.R.B.. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.6 9(c).
288
SIOUX PRODUCTS, INC.
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 full-time and regular part-time production
and maintenance employees, including tool
room employees, quality control inspectors,
service department employees and engineering
department employees employed by the Em-
ployer at its facility located at 120 Interstate
Road, Addison, Illinois; but excluding office
clerical employees, professional employees,
and guards and supervisors as defined in the
Act.
2. The certification
On February 1, 1980, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 13, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on January
14, 1981, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 22, 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 January 22, 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
January 22, 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-
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
i. Sioux Products, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Production Workers Union of Chicago and
Vicinity, Local 707, an affiliate of the National
Production Workers Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees, including tool room
employees, quality control inspectors, service de-
partment employees, and engineering department
employees employed by the Employer at its facility
located at 120 Interstate Road, Addison, Illinois;
but excluding office clerical employees, profession-
al employees, and guards and supervisors as de-
fined in the Act, constitute a unit appropriate for
289
DECISIONS OF NATIONAL LABOR REI.ATIONS I()ARI)
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since January 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 January 22, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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,
Sioux Products, Inc., Addison, Illinois, 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 Production Work-
ers Union of Chicago and Vicinity, Local 707, an
affiliate of the National Production Workers Union,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees, including tool
room employees, quality control inspectors,
service department employees and engineering
department employees employed by the Em-
ployer at its facility located at 120 Interstate
Road, Addison, Illinois; but excluding office
clerical employees, professional employees,
and 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 Addison, Illinois, facility copies of
the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional
Director for Region 13, 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 13,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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
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 Natlional .abhor Relations Board."
APPENDIX
NoTriICE To EMPLOYEES
POSTED BY ORDER OF 1THE
NATIONAI. LABOR RE.I.ATIONS 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 Production Workers Union of Chicago
and Vicinity, Local 707, an affiliate of the Na-
tional Production Workers Union, as the ex-
clusive 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 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-
290
SIOUX PR'K()I)ODUCTS, INC
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time produc-
tion and maintenance employees, including
tool room employees, quality control inspec-
tors, service department employees and en-
gineering department employees employed
by the Employer at its facility located at 120
Interstate Road, Addison, Illinois; but ex-
cluding office clerical employees, profession-
al employees, and guards and supervisors as
defined in the Act.
SIoux PROIUCTS, INC.
291