Synadyne Corp.

National Labor Relations Board - Board Decisions

Dec 26, 1978

239 N.L.R.B. 1033 (N.L.R.B. 1978)

SYNADYNE CORPORATION
Synadyne Corporation and International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC. Case 15-CA-6996
December 26, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.O
Upon a charge filed on August 2, 1978, by the
International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, herein called the
Union, and duly served on Synadyne Corporation,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 15, issued a complaint and no-
tice of hearing on August 8, 1978. against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, 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 com-
plaint alleges in substance that on June 28, 1978, fol-
lowing a Board election in Case 15-RC-6218, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about July 24, 1978, and at all times there-
after, 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
August 17, 1978, Respondent duly filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. Respondent admit-
ted service, jurisdiction, and that the Board on June
28, 1978, certified the Union as collective-bargaining
representative of the employees in the unit found ap-
propriate. Respondent also admitted that the Union
has requested and is requesting that Respondent
meet with it to discuss negotiations. Respondent fur-
ther denied the conclusory 8(a)(5) and (1) allegations
JOfficial notice is taken of the record in the representation proceeding.
Case 15 RC-6218, 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 1.TI'
Electrosysterns. 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): Intertype 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.
and asserted as an affirmative defense that the elec-
tion conducted on February 28, 1978, should have
been set aside because of the objectionable conduct
of the Union and that a hearing should have been
granted on its objections.
On September 15, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 27,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to 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 its response to
the Notice To Show Cause, Respondent claims as an
affirmative defense that the election conducted
herein on February 24, 1978, should have been set
aside because of the objectionable conduct by the
Union and that it should have been granted a hear-
ing on its objections.
Review of the record herein reveals that in Case
15-RC-6218 the petition was filed by the Union on
December 15, 1977. On February 24, 1978, an elec-
tion was conducted herein in the stipulated unit,2 af-
ter which the parties were served with a tally of bal-
lots which showed that, of approximately 136 eligible
voters, 106 cast valid ballots for, and 24 against, the
Union. There were 25 challenged ballots, an insuffi-
cient number to affect the results of the election. On
March 3, 1978, Respondent filed objections to con-
duct affecting the results of the election in Case 15-
RC-6218. On April 19, 1978, the Acting Regional
Director for Region 15 issued a Report on Objec-
tions overruling Objections I through XI and recom-
mending that the Union be certified. On or about
May 8, 1978, Respondent filed with the Board its
memorandum in support of its exceptions to the Re-
port on Objections. On May 9, 1978, the Acting Re-
gional Director for Region 15 issued a Supplemental
Report on Objections overruling Objection XII. On
or about May 19, 1978, Respondent filed with the
Board exceptions to the Regional Director's Supple-
:All production and maintenance employees. including assistant fore-
men, shipping clerks. warehousemen, tool and die makers. and inspectors.
employed at the Employer's Space Center Drive. Jackson. Mississippi.
plant: excluding all office clerical emplosees. professional employees,
guards and supervisors as defined in the Act
1033
DECISIONS OF NA rIONAL LABOR RELATIONS BOARD
mental Report on Objections and memorandum in
support of said exceptions. On June 28, 1978, the
Board issued its Decision and Certification of Repre-
sentative adopting the Regional Director's findings
and recommendations and certifying the Union as
the exclusive collective-bargaining representative of
all employees in the appropriate unit.
Commencing on or about July 14, 1978, the Union
requested, and is continuing to request, Respondent
to recognize the Union and to meet and bargain col-
lectively with it as the exclusive bargaining represen-
tative of all the employees of Respondent in the ap-
propriate unit described above, with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment. Respondent has re-
fused to bargain since July 24, 1978.
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings, but must present specific facts which dem-
onstrate that there are material facts at issue which
require a hearing.' Respondent in the instant case
presented no material facts not admitted or previous-
ly determined.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously unavailable evidence, nor does it allege any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.
We shall, accordingly, grant the Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Mississippi corporation, with of-
fices and a place of business located in Jackson, Mis-
sissippi, is engaged in the manufacture and sale of
wire harnesses. During the past 12-month period,
3 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972).
4See Pittsburh 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).
which period is representative of all times material
herein, Respondent, in the course and conduct of its
business operations, purchased and received goods
and materials valued in excess of $50,000 directly
from points !ocated outside the State of Mississippi.
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 juris-
diction herein.
11 THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, has been at all
times material herein, and is, a labor organization
within the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. 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:
All production and maintenance employees in-
cluding assistant foremen, shipping clerks, ware-
housemen, tool and die makers, and inspectors
employed by Respondent at its Jackson, Missis-
sippi, facility; excluding all office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On February 24, 1978, in Case 15-RC-6218, a ma-
jority of the employees of Respondent in the unit
described above, by a secret-ballot election conduct-
ed under the supervision of the Acting Regional Di-
rector for Region 15, 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 June 28, 1978, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about July 14, 1978, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
1034
SYNADYNE CORPORATION
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about July 24, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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
July 24, 1978, 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 en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX)(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, inti-
mate, 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(aX5) 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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 (1964); Bur-
nett 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. Synadyne Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees in-
cluding assistant foremen, shipping clerks, ware-
housemen, tool and die makers, and inspectors em-
ployed by Respondent at its Jackson, Mississippi,
facility; excluding all office clerical employees, pro-
fessional employees, guards and supervisors as de-
fined 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 February 24, 1978, the above-named la-
bor 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 July 24, 1978, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 mean-
ing 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 Re-
lations Board hereby orders that the Respondent, Sy-
nadyne Corporation, Jackson, Mississippi, its offi-
cers, 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 con-
ditions of employment with the International Union
of Electrical, Radio and Machine Workers, AFL-
1035
DECISIONS OF NAFIONAL LABOR RELATIONS BOARD
CIO-CLC, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees in-
cluding assistant foremen, shipping clerks, ware-
housemen, tool and die makers, and inspectors
employed by Respondent at its Jackson, Missis-
sippi, facility; excluding all office clerical em-
ployees, 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 Jackson, Mississippi, facility copies
of the attached notice marked "Appendix." Copies
of said notice, on forms provided by the Regional
Director for Region 15, 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 no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
5In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words ia the notice reading "Posted by Order of the
National Labor Relations Board" shall read "'Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
No1liCE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELArTION 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 Inter-
national Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, as the exclu-
sive representative of the employees in the
bargaining unit described below.
WE WILL No-f 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 assistant foremen, shipping clerks,
warehousemen, tool and die makers, and in-
spectors employed at the Employer's Space
Center Drive, Jackson, Mississippi, plant; ex-
cluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
SYNADYNE CORPORATION
1036