Western Stamping Corp.

National Labor Relations Board - Board Decisions

Jul 23, 1971

192 N.L.R.B. 212 (N.L.R.B. 1971)

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western ' Stamping Corporation and International
Union, United Automobile , Aerospace and Agricul-
tural Implement Workers of America (UAW). Case
7-CA-8566
July 23, 1971
DECISION-AND ORDER
By MEMBERS FANNING, BROWN, AND
KENNEDY
Upon a charge` filed on' March 17, 1971, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), herein' called the Union, and duly served on
Western Stamping Corporation, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7, issued a complaint on April 14, 1971,
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, complaint, and notice of hearing before a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 26,
1971, following a Board election in Case 7-RC-9514
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about March 4, 1971, and at all
times thereafter, Respondent has refused, and contin-
ues 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 April 26, 1971, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On May 3, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, characterized as a Motion for Judgment in
the Pleadings. Subsequently, on May 17, 1971, 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. Respondent thereafter filed a
response to Notice To Show Cause characterized as
i Official notice is taken of the record in the representation proceeding,
Case 7-RC-9514, as the term "record" is defined in Sees. 102.68 and
102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrasystems Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co v. Penello,
opposition to the General Counsel's Motion for
Judgment on-the Pleadings.
Pursuant to the provisions of Section 3(b) of the
National ''Labor Relations Act, as amended, the
National Labor Relations Board-has delegated its
powers in connection with 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 in its opposition
to the General Counsel's motion submitted as a
response to the Notice To Show Cause, the Respon-
dent denies that the Union is the exclusive majority
bargaining representative of the employees in the
appropriate unit stipulated in Case 7-RC-9514 and
further denies that the Board validly certified the
Union in that representation case. It therefore
opposes the grant of the General Counsel's Motion
for Summary Judgment. We find no merit in the
Respondent's position.
The election in Case 7-RC-9514 was conducted on
September 19, 1969, pursuant to a Stipulation for
Certification Upon Consent Election. The tally of
ballots showed that of approximately 289 eligible
voters, 258 cast valid ballots of which 126 were for,
and 124 against, the Union, 8 were challenged and 2
ballots were void. Both the Respondent and the
Union filed timely objections to conduct affecting the
results of the election. The Regional Director,
however, deferred action upon the objections pending
investigation and resolution of the eight challenged
ballots which were sufficient to affect the election
results. As the preliminary investigation revealed that
the challenges raised substantial and material issues
of fact requiring resolution at a hearing, the Regional
Director, on November 26, 1969, directed the holding
of a hearing on these issues.
After the hearing in which both the Respondent and
the Union participated, the Hearing Officer, on
February 25, 1970, issued and served upon the parties
his Report and Recommendations on Challenges in
which he recommended that the challenges to six
ballots be sustained2 and the challenges to the two
remaining ballots be overruled and that these two
ballots be opened and counted and a revised tally of
ballots issued. Thereafter, the Respondent filed timely
exceptions to the Hearing Officer's recommendations.
269 F. Supp. 573 (D.C. VA., 1967); Follett Corp., 164 NLRB 378, enfd. 397
F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
2 Five of the challenged voters were found to be supervisors while the
sixth challenged voter was the son of the Respondent's president and
principal stockholder.
192 NLRB No. 39
WESTERN STAMPING CORP. 213
On June 26, 1970, the Board issued its Decision,
Direction, and Order,3 adopting the Hearing Officer's
recommendations - because ' the exceptions raised no
factual issues, directing that the two ballots be opened
and counted and a revised tally of ballots issued, and
further directing that, if -the revised tally showed that
the Union received'a majority of the valid votes cast,
the Regional Director investigate the Respondent's
objections. The revised tally-showed that of approxi-
mately 289 eligible voters, 258 cast valid ballots of
which 127 were for, and 125 against, the Union, and
that the challenges to 6 ballots were sustained and 2
ballots were void. After issuance of the revised tally,
the Regional., Director granted the Union's-request to
withdraw its objections. The Respondent, however,
filed additional timely objections to the revised tally
alleging that the Board erroneously and unlawfully
refused to count the six ballots whose challenges had
been sustained.
After investigating the objections, the Acting
Regional Director, issued, on, July 17, 1970, a report
recommending that the Respondent's objections to
the revised tally be overruled as they raised issues
which had, been previously determined by the Board.
He also directed a hearing on the Respondent's
objections to conduct affecting the results of the
election on grounds of material and substantial issues
of fact, including credibility resolutions, which could
best be resolved by a hearing. On August 4, 1970, the
Board issued a Supplemental Order adopting, in the
absence of exceptions, the Acting Regional Director's
recommendations.
On August 28, 1970, a hearing was held on the
Respondent's objections-which, in substance, alleged:
(1) the Union engaged, 'in deliberate trickery and
misrepresentations in its preelection campaign; (2)
before the election,- the Union circulated false and
misleading information about the Respondent; (3) the
Union threatened employees` and offered them
unlawful inducements to vote for the Union; (4) while
the employees were voting, conditions occurred or
were permitted to exist' which prevented employee
free choice; (5) because of the Union's failure to
identify itself as the sponsor of campaign literature,
the employees were unable to evaluate properly the
Union's campaign propaganda; and (6) the Union
allegedly advised prounion employees to get antiun-
ion voters drunk so they could not vote in the election.
On November 9, 1970, the Hearing Officer issued
his Report and- Recommendations on Objections in
which he recommended that the objections be
overruled in their entirety and that a certification of
representative be issued: The Respondent filed timely
exceptions with the Board. On February 26, 1971, the
3 Not published in the bound volumes of Board decisions.
4 Not published in bound volumes of Board decisions.
Board issued its Supplemental Decision'and Certifica-
tion of Representative4 affirming the Hearing Offi-
cer's rulings, particularly those-pertaining- to ,-an
alleged due process issue, and adopting his findings
and recommendations and the-Respondent 's remain-
ing exceptions raised no material or substantial .issues
of fact which would warrant reversal-of the Hearing
Officer's findings and recommendations. According-
ly, the Board certified the Union as the exclusive
representative in the stipulated appropriate unit.
In its opposition to the General Counsel's Motion
for Summary Judgment, the 'Respondent also con-
tends that because its answer denies the legal
conclusion that the Union is or has been'the exclusive
employee representative for the purpose of collective
bargaining and also because its answer does not admit
the Union made a request for bargaining or that the
Respondent had refused such request;' the necessary
allegations to sustain the grant of the General
Counsel's motion have not been established. We find
nos merit in these contentions. As noted above, the
issue as to the Union's' status as exclusive certified
bargaining representative has been previously litigat-
ed and determined by the Board in the underlying
representation case and cannot properly now 'be
raised' in this unfair 'labor practice proceeding.
Further, the Respondent's answer, admits the factual
allegations of the complaint to the, effect that it
received a letter from the Union requesting a meeting
for the purpose of commencing collective-bargaining
negotiations and that it refused to accede to this
request until there had been judicial review of the
Union's allegedly invalid certification. The Respon-
dent therefore admits the fact of a request and refusal
to bargain while continuing to attack the validity of
the Union's' certification which, as indicated above,
had previously been litigated and determined by the
Board in the' underlying' representation case and
cannot properly now be raised in this proceeding.
Since there are no disputed material issues of fact,
there exists no impediment to the grant of the General
Counsel's motion. We shall, accordingly, grant the
Motion for Summary Judgment.
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.5
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discovered
or previously unavailable evidence, nor does it allege
5 See Pittsburgh Plate Glass Ca v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c).
'214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thatvr-any,. special circumstances . existf herein which
-woul&requite, the Board, to reexamine the decision
made in - the, representation proceeding. We therefore
find that the Respondent has not- raised any issue
which-is properly litigable in this unfair-labor practice
proceeding.,
On the basis of the entire record, the Board makes
the, following:
FINDINGS OF FACT
purposes within, the meaning of Section 9(b) of the
Act:
All, production and maintenance:'iemployees em-
ployed by.the Respondent at 2203 West Michigan,
Jackson, Michigan, 2410 West, Main, Jackson,
Michigan, and 13251. Allman, Road,, Concord,
Michigan; including, truckdrivers; but,excluding
.all office clerical, employees,-professional employ-
ees,, guards and supervisors -as defined in the Act. ,
1. THE BUSINESS -,OF THE RESPONDENT
At all times material herein , the Respondent, a
Michigan, corporation with principal ,office at 2203
'West Michigan , Jackson, Michigan, is,engaged in `the
manufacture of toys at its. plants located at 2203 West
Michigan , " Jackson, Michigan , 2410 West Main,
Jackson, Michigan,' and 13251 Allman Road, Con-
cord, Michigan.
During the year ending December 31, 1970,, a
representative period , the Respondent, in the course
and conduct of its business operations , purchased and
caused to be -transported and delivered at it s Jackson
,plans
in
soft , metals and other goods and materials
valued i . excess - of '$' 50,000 "Which were transported
and delivered to its , Jackson plants directly from
points located outside the State of Michigan. During
this:'same _ period, the Respondent, in the course and
-conductI of its business operations manufactured,
sold, and distributed at its Jackson , Mich'igan,,plants
toy products valued in excess of $50 ,000 of which
products valued in excess of $50,000 were shipped
fronm'said -plants directly to points outside the State of
Michigan.
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.
H. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space and-Agricultural Implement Workers.ofAmeri-
ca, (UAW) is a labor organization within the meaning
of Section 2(5) of the Act.
111. ''SHE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute `a unit appropriate for, collective -bargaining
2. The certification'
On September 19, 1969 , 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 7, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent . The Union: was certified as the
collective-bargaining representative of the employees
in said unit on February 26, 1971 , and the Union
continues' 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 March 2, 1971, and at, all
times thereafter, the Union has requested the' Respon-
dent to bargain Collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about March 4, 1971, and continuing at all times
thereafter to date , the, 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 the Respondent has, since
March 4, 1971 , and at all times thereafter ;- refused to
bargain collectively with the Union as 'the exclusive
representative of the employees n'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 operations
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 com-
merce and the free flow of commerce.
WESTERN STAMPING CORP. 215
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 certification
as beginning on the date Respondent commences 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;
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd. 328 F.2d -600 (CA. 5), cert. denied 379
U.S. 817; Burnett Construction Company, 149 NLRB
1419,142 1, enfd. 350 F.2d 57"(C.A.10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Western Stamping Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile, Aer-
ospace and Agricultural Implement Workers of
America (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Respondent at 2203 West Michigan,
Jackson, Michigan, 2410 West Main, Jackson, Michi-
gan, and 13251 Allman Road, Concord, Michigan,
including truckdrivers; but excluding all office cleri-
cal 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 February 26, 1971, 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 March 4, 1971, 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
8 In the event that the Board's 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"
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, 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
meaning of Section 8(a)(1) 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 Respondent,
Western Stamping Corporation, 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 International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), as the_ exclusive bar-
gaining representative of its employees -in the follow-
ing appropriate unit:
All production and maintenance employees em-
ployed by the Respondent at 2203 West Michigan,
Jackson, Michigan, 2410 West Main, Jackson,
Michigan, and 13251 Allman Road, Concord,
Michigan, including truckdrivers; but excluding
all 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 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Jackson and Concord, Michigan,
plants copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms
provided by the Regional Director for Region 7, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 betaken
by Respondent to insure that , said notices are not
altered, defaced, or covered by any other material.
(c)' Notify the Regional Director for Region 7, in
writing, within 20, 'days ^ from ' the 'date of this Order,
what steps have been: taken tocomply,herewi
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 Interna-
tional Union, United Automobile , Aerospace and
Agricultural Implement Workers of 'America
(UAW)' as - the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any `like or related manner
interfere withrestrain; or coerce our employees in
the exercise ' of the rights guaranteed them by
Section T of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative 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 under-
standing in a signed agreement . The bargaining
unit is:
All production and maintenance 'employees
employed by the Respondent at 2203'West
'Michigan, Jackson, Michigan, `2410 West
Main, Jackson, Michigan, and 13251 Allman
-Road, Concord, Michigan, including ` truck-
drivers; 'but excluding all office clerical
employees , professional employees , guards
and supervisors as defined in the Act.
WESTERN STAMPING
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be ' altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office , 500, Book Building, 1249 Washington Boule-
vard, Detroit , Michigan 48226 , Telephone 313-226-
3200.