Southern Indiana Gas & Electric Co.

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern Indiana Gas & Electric Company and Local Union 702, International Brotherhood of Electrical Workers. Case 25-CA-11494 May 2, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on October 29, 1979, by Local Union 702, International Brotherhood of Electrical Workers, herein called the Union, and duly served on Southern Indiana Gas & Electric Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25, issued a com- plaint on November 1, 1979, against Respondent, 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 Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an ad- ministrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 5, 1979, following a Board election in Case 25-RC- 7256, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about October 17, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 13, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On January 25, 1980, counsel for the General Counsel filed directly with the Board a motion to strike portions of Respondent's answer and a Motion for Summary Judgment. Subsequently, on February 6, 1980, the Board issued an order trans- ferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion to strike portions of Respondent's answer and for Summary Judgment should not be granted. i Official notice is taken of the record in the representation proceed- ing, Case 25-RC 7256, as the term "record" is defined in Sees. 102.68 and 102.6 9(g) of the Board's Rules and Regulations Series 8, as amended. See LTV Electrosystems. Inc., 166 NLRB 938 (19h7), enfd. 388 F 2d 683 (4th Cir 1968); Golden Age Beverage C.. 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v Pencllo, 269 1 Supp. 573 (D.CVa 1967); Follerr Corp., 164 NRBH 378 (1967), enfd. 397 F 2d 91 (7th Cir 1968); Sec 9(d) of the NLRA. as amended 249 NLRB No. 29 Respondent thereafter filed responses to General Counsel's motions to strike portions of Respond- ent's answer and for Summary Judgment and the Board's 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 responses to the General Counsel's motions to strike portions of Respondent's answer and for Summary Judgment, and to the Board's Notice To Show Cause, Re- spondent denies that the unit is appropriate and that the Union is the exclusive bargaining repre- sentative of the employees in the unit found appro- priate in the underlying representation proceeding (Case 25-RC-7256). Notwithstanding the General Counsel's contention that Respondent has alleged no affirmative defense by limiting its answer to the denial of factual issues resolved in the underlying representation case, Respondent contends that it has the right to deny those allegations it contests, including rhetorical paragraph 6 of the complaint which the General Counsel asserts is merely a pleading involving a legal conclusion emanating from the facts alleged. 2 Respondent contends fur- ther that, by its answer, it is raising the fact issue as to whether there was substantial evidence to justify the ruling of the Regional Director and the Board in refusing its request for review and in deciding that the unit certified by the Board is an appropri- ate unit to represent Respondent's "system supervi- sors" as their bargaining representative. 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 2 Paragraph 6 f the complaint reads: By the acts descrihed abose in paragraph 5, and by each of said acts. the Respondeint did refuse to bargain collectively, with the repre- senltatisres of its employees, and thereby did engage in, and is engag- ing in, unfair labor practices affecting comnmerce within the meaning of Section 8(a)(5) ad Sections 2(6) and (7) of the Act. : See Pirttsbhurgh late Glass Co. N L RB., 313 US 146, 162 (1941) Rules and Regulalions of the Board, Sees 102 67(r) and 1(0269(c) SOUTHERN INDIANA GAS & ELECTRIC COMPANY 253 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 I. THE BUSINESS OF RESPONDENT Respondent, a corporation, is engaged in the generation, sale, and transmission of gas and elec- trical power, and maintains its principal office and place of business at Evansville, Indiana, and var- ious other facilities in the State of Indiana, includ- ing a Systems Power Control Center near Yankee- town, Indiana. During the past 12 months which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, purchased, transferred, and delivered to its various facilities goods and services valued in excess of $50,000 which were transported to said facilities directly from States other than the State of Indiana. 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 INVOI.VED Local Union 702, International Brotherhood of Electrical Workers, is a labor organization within the meaning of Section 2(5) of the Act. 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, in- cluding all system supervisors of the Respond- ent employed at its power control center, but excluding all office clerical employees, all pro- fessional employees, all guards, the chief system supervisor and all supervisors as de- fined in the Act. 2. The certification On September 27, 1979, a majority of the em- ployees of Respondent in a voting group of "All system supervisors of the Employer employed at its power control center," in a secret-ballot election conducted under the supervision of the Regional Director for Region 25, designated the Union as their representative for the purpose of collective bargaining with Respondent. On October 5, 1979, the Union was certified to bargain for "system supervisors" as part of the pro- duction and maintenance employees it currently represents, and the Union continues to be such ex- clusive representative within the meaning of Sec- tion 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 9, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of the system supervisors at its power control center by reason of its recent certification. Commencing on or about October 17, 1979, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of such system supervisors. Accordingly, we find that Respondent has, since October 17, 1979, 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 for the system supervisors added thereto, 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 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 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the exclusive representative of the system super- visors who have been added to 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 1. Southern Indiana Gas & Electric Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 702, International Brotherhood of Electrical Workers, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including all system supervisors of Respondent em- ployed at its power control center, but excluding all office clerical employees, all professional em- ployees, all guards, the chief system supervisor and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since October 5, 1979, 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 October 17, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of the system super- visor employees of Respondent who have been added to the appropriate unit, Respondent has en- gaged 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, 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, Southern Indiana Gas & Electric Company, Evans- ville, Indiana, 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 Local Union 702, International Brotherhood of Electrical Workers, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees, in- cluding all system supervisors of Respondent employed at its power control center, but ex- cluding all office clerical employees, all profes- sional employees, all guards, the chief system supervisor, and all 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 system supervisors added to the aforesaid appro- priate unit with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Evansville, Indiana, place of busi- ness copies of the attached notice marked "Appen- dix." 4 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by Respondent 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. Reasonable steps shall be taken by Re- 4 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 Stales Court of Appeals Enforcing an Order of the National Relations Board." SOUTHERN INDIANA GAS & ELECTRIC COMPANY 255 spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 Local Union 702, International Brother- hood of Electrical Workers, as the exclusive representative of the employees in the bargain- ing unit described below, including system su- pervisors recently added to that unit. 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, and/or the system super- visors recently added to it, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees, including all system supervisors employed at our power control center, but excluding all office clerical employees, all professional employees, all guards, the chief system su- pervisor and all supervisors as defined in the Act. SOUTHERN INDIANA GAS & ELECTRIC Co.