Modine Manufacturing Co., 629 (1970)

Modine Manufacturing Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and Sheet Metal Workers International Association,

Local No. 2, Party to Contract. Case 17-CA-4206

November 18, 1970 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS BROWN

AND JENKINS

Upon a charge duly filed by International Union,

United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), hereafter referred to as UAW, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint dated March 30, 1970, against the Respondent, Modine Manufacturing Company, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5), (2), 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 Respondent.

The complaint alleges, in substance, (1) that, although the UAW was duly certified after a Board election as the exclusive bargaining representative of the Respondent's employees in the appropriate unit, the Respondent has, since requested to do so on or about February 2, 1970, refused, and is refusing, to recognize or bargain with the UAW; (2) that on or about January 7, 1970, Respondent posted a written notification designed to encourage, and which did encourage, employees to vote for Sheet Metal Workers International Association, Local No. 2, herein called Sheet Metal Workers, and against the UAW in the January 12, 1970, election; and (3) that since the election of January 12, 1970, the Respondent has continued to recognize and bargain with the Sheet Metal Workers, and maintained in full force, a contract between them including provisions pertaining to union security and dues checkoff, and thereby has rendered unlawful assistance and support to the Sheet Metal Workers. The Respondent filed its answer denying certain allegations of the complaint.

On June 1, 1970, the Respondent, the UAW, and Counsel for the General Counsel filed a motion to transfer proceeding to the Board and stipulation of , In par. 4 of the stipulation the parties designated as a part thereof, 'in view of Section 9(d) of the Act,' the record of the hearing in the underlying representation proceeding. The Board in that proceeding considered the record, reached a decision on the merits, and directed an election.

(Decision and Direction of Election in Case 17-RC-5945, published at 180

NLRB No. 70, of which the Board is requested to take official notice.) It is settled that, in the absence of newly discovered or previously unavailable parties. The parties stipulated that the entire record in this proceeding shall consist of the charges, complaint, notice of hearing, answer, and the stipulation of facts, including the exhibits attached thereto. The parties waived their rights to a hearing and to the issuance of a Trial Examiner's Decision.

By an Order issued on June 5, 1970, the Board approved the aforesaid stipulation and transferred the matter to the Board.

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 case to a three -member panel.

Upon the aforesaid stipulation and the entire record in this case,' including the briefs of the Respondent, the UAW, and the General Counsel, the Board makes the following:

FINDINGS OF FACT

1. BUSINESS OF RESPONDENT The Respondent, a Wisconsin corporation, operates several plants throughout the United States, including one at Trenton, Missouri, the only operation involved herein, where it is engaged in the manufacture of radiators for automotive and agricultural equipment.

   In the course and conduct of its business at the Trenton plant, the Respondent annually ships products valued at in excess of $50,000 directly to points outside the State of Missouri, and receives goods valued at in excess of $50,000 for its Trenton plant from points outside the State of Missouri. The Respondent admits, and we find, that it is, and has been at all material times herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

   2. THE LABOR ORGANIZATIONS INVOLVED The UAW and the Sheet Metal Workers are now, and have been at all material times herein, labor organizations within the meaning of Section 2(5) of the Act.

   3. THE UNFAIR LABOR PRACTICES A. Refusal to Bargain This case arises out of the organizational activity at Respondent's Trenton, Missouri, plant by the Sheet evidence, the Board does not litigate in an unfair labor practice case issues which were, or could have been, litigated in a prior representation proceeding.'(lPittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 161-162.) Thus, no reason therefor having been given, we will not reconsider the record made in the representation hearing. Accordingly, the representation case record is part of the stipulated record in this unfair labor practice case only for the purpose indicated by Sec. 9(d) of the Act.

   186 NLRB No. 84

   Metal Workers and the UAW. In the course of that activity, Respondent, on January 21, 1969, recognized the Sheet Metal Workers. Shortly thereafter the UAW filed a petition for an election.2 A hearing was held, and the case was transferred to the Board for decision.

   A panel of this Board decided that, contrary to the Respondent's and the Sheet Metal Workers contention, the recognition and subsequent execution of a contract3 was not a bar to the petition filed by the UAW, and directed an election. Pursuant to this decision, the Regional Director for Region 17 conducted an election on January 12, 1970. The tally of ballots shows that of 124 ballots cast, the UAW received 71 votes and the Sheet Metal Workers 47, with 2 votes for neither and 4 challenges. Thereafter, on January 20, 1970, the Regional Director for Region 17 certified the UAW as collective-bargaining representative in the appropriate unit.4

   On February 2, 1970, the UAW requested the Respondent to bargain with it over wages, hours, and working conditions. The Respondent replied that it would refuse to do so, claiming that its recognition of the Sheet Metal Workers had been proper.

   In the instant case, the Respondent takes the position that the UAW did not have a substantial showing of interest at the time the Respondent recognized the Sheet Metal Workers and, therefore, that the initial recognition was lawful and a bar to the election.5 In support of its position, the Respondent requests the Board to open the record and produce all of the UAW membership and authorization cards in order to determine the extent of the UAW's showing of interest at the time recognition was extended to the Sheet Metal Workers. In this connection the Respondent has subpenaed the UAW cards.6 The Respondent claims that the Hearing Officer, in the representation proceeding, under the guise of complying with the Board policy that showing of interest is not litigable, erroneously revoked a subpena for the UAW cards.

   The Board has ruled in the representation proceeding that the Hearing Officer's rulings were without error, that the Respondent's contention that the UAW did not have a substantial interest is without merit, and that the recognition of the Sheet Metal Workers was not a bar to the UAW's petition for an 2 Whether the petition was filed 7 days after the recognition agreement (as the Respondent claims herein ) or 5 days thereafter (as found in the underlying representation proceeding) is immaterial to the issues involved herein. Nevertheless, we inadvertently left out the word 'working.' Pursuant to Section 10(d) of the Act, we...