Jefferson Electric Co.

JEFFERSON ELECTRIC CO 941 Jefferson Electric Co., Inc. and Aluminum Workers International Union, AFL-CIO. Case 10-CA- 15835 August 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELL O, AND TRUESDALE Upon a charge filed on May 15, 1980, by Alumi- num Workers International Union, AFL-CIO, herein called the Union, and duly served on Jeffer- son Electric Co., Inc., herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 10, issued a complaint and notice of hearing on May 30, 1980, 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 March 26, 1980, following a Board election in Case 10-RC- 11966, 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 May 6, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On June 9, 1980, Respondent filed its answer to the complaint admitting in part, ard denying in part, the allega- tions in the complaint. 2 On July 22, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 24, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary i Official notice is taken of the record in the representation proceed- ing, Case 10-RC-11966, 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 Electrosystems. 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): Intertvpe Co. . Penello, 269 F.Supp. 573 (D.C.Va. 1967): Follett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended 2 Respondent failed to respond to those allegations which it did not specifically deny. In accordance with Sec. 102.20 of the Board's Rules and Regulations, Series 8, as amended, these allegations are deemed to be admitted to be true. 251 NLRB No. 129 Judgment should not be granted. Respondent thereafter 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 oppostion to the Motion for Summary Judgment and its answer to the Notice To Show Cause, Respondent essentially contests the validity of the Union's certification. Specifically, Respond- ent contends that the Board erred in denying its re- quest for review of the Acting Regional Director's Supplemental Decision and Certification of Repre- sentative, in which Respondent's objections to con- duct affecting the results of the election were over- ruled.3 In the Motion for Summary Judgment, the General Counsel maintains that Respondent is at- tempting to relitigate the issues it raised in the re- lated representation proceeding. We agree with the General Counsel. Review of the record herein, including the record in Case 10-RC-11966, reveals that on Janu- ary 17, 1980, after a hearing, the Regional Director issued a Decision and Direction of Election. On January 25, 1980, Respondent filed with the Board a request for review of the Decision and Direction of Election, contending that Respondent was im- properly denied the opportunity to be present at the hearing and that the eligibility of voters was in- correctly determined. This request was denied on February 11, 1980. An election was conducted on February 13, 1980, which resulted in a vote in favor of the Union of 108 to 89, with 21 challenged ballots.4 On February 21, Respondent filed objec- tions to the conduct of the election, contending, in essence, that the Union had implied to employees that the Board favored the Union. On March 26, 1980, the Acting Regional Director issued a Sup- plemental Decision and Certification of Representa- 3 Respondent also claims that it has recognized the Union and negoti- ated with it on July 22 and 23, 1980 However, we find that this claim is insufficient to withstand the Motion for Summary Judgment On May 6. 1980, Respondent violated Sec 8(a)(5) by replying to a valid union re- quest to begin collective bargaining by stating that it "must decline to recognize the labor organization" in order to test the validity of the Union's certification Respondent's subsequent recognition of the Union, occurring after its initial, unlawful refusal to bargain, would not vindicate the statutory rights of employees which we find herein were violated. Cf. O'Land. Inc, d/bh/a Ramada Inn South, 206 NLRB 210 (1973) 4 he Acting Regional Director subsequently approved the parties' stipulation that the challenges to I I ballots he sustained and, thus, the re- maining challenged ballots were no longer determinative of the election results JEFFERSON ELECTRIC Co. 941 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive overruling Respondent's objections and certi- fying the Union. Respondent submitted to the Board a request for review of the Supplemental Decision on April 8, 1980. The Board denied this request on April 23, 1980. It thus appears that Re- spondent is attempting to raise herein issues which were raised and determined in the underlying rep- resentation 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.5 All relevant issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respond- ent does not offer to adduce at a hearing any newly discovered or previously unavailable evi- dence, nor does it allege that any special circum- stances exist herein which would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore find that Respond- ent has not raised any issue which is properly liti- gable in this unfair labor practice proceeding. Ac- cordingly, 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, and has been at all time material herein, a Delaware corporation, with an office and place of business located at Athens, Alabama, where it is engaged in the manufacture of electrical transformers. Respondent, during the past calendar year, which period is representative of all time ma- terial herein, sold and shipped from its Athens, Al- abama, facility finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. 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 Aluminum Workers International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 5 See Pitshburgh Plate Glays Co. v N.L.R.B.. 313 U.S. 14h. 162 (1941): Rules and Regulations ofI the Board, Secs. 102 67(f) and 1()2 69(c) 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 production and maintenance employees employed by Respondent at its Athens, Ala- bama, facility, including quality control testers and group leaders; excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On February 13, 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 10, 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 March 26, 1980, 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 March 31, 1980, 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 May 6, 1980, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 6, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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, JFFFRSON EECTRIC C 943 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 R MEDY 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 OF LAW I. Jefferson Electric Co., Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Aluminum Workers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Athens, Alabama, facility, including quality control testers and group leaders; excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since March 26, 1980, 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 May 6, 1980, 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 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)(l) 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, Jefferson Electric Co., Inc., Athens, Alabama, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Aluminum Workers International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its Athens, Ala- bama facility, including quality control testers and group leaders; excluding office clerical employees, 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 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 facilities located at Athens, Ala- bama, copies of the attached notice marked "Ap- pendix."" Copies of said notice, on forms provided IIn trh c, \Ce t Ii th11s ()rdr II c If1 rcCd bh l Judgmnll of a United SiIltC . ('ut ri of Appea.d . the ord in thc notice r.eading "',Isted bh Com'Olted JEFFERSON ELECTRIC Co 943 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable 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 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 National 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 Aluminum Workers International Union, AFL-CIO, as the exclusive 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- 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 employed by us at our Athens, Alabama, fa- cility, including quality control testers and group leaders; excluding clerical employees, professional employees, guards and supervi- sors as defined in the Act. JEFFERSON ELECTRIC Co., INC.