Richardson Engineering Co.

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richardson Engineering Company and Local 11, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 22-CA-9219 March 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on May 15, 1979, by Local II, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Rich- ardson Engineering Company, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22, issued a complaint and notice of hearing on June 29, 1979, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 Rela- tions Act, as amended. Copies of the charge and complaint and notice of hearing before an adminis- trative 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 April 13, 1979, following a Board election Case 22-RC- 7654, the Union was duly certified as the exclusive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about April 13, 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. Thereafter, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and raising certain affirmative defenses. On October 9, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. The motion included, inter alia, a request to strike por- tions of Respondent's answer. Subsequently, on Oc- tober 18, 1979, the Board issued an order transfer- ring the proceeding to the Board and a Notice To I Official notice is taken of the record in the representation proceed- ing, Case 22-RC-7654, 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 Electrosysrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); olden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1964); Sec. 9(d) of the NLRA, as amended. 248 NLRB No. 73 Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Re- spondent thereafter filed a response to the Notice To Show Cause.2 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 response to the Notice To Show Cause, Respondent denies the request and refusal to bargain. Furthermore, Re- spondent asserts various affirmative defenses, the majority of which contest the validity of the Board's certification in the underlying representa- tion proceeding. By these affirmative defenses, Re- spondent asserts it is not lawfully obligated to bar- gain with the Union. Specifically, Respondent con- tends, inter alia, that: (1) the certified unit is inap- propriate, (2) the election was invalid because Re- spondent was fraudulently induced to sign the Stip- ulation for Certification Upon Consent Election by relying on the reasonable belief that the parties had made a binding agreement regarding the voting eli- gibility of certain employees, (3) as a result of cer- tain changes in Respondent's business, Respondent intends to "abolish" the certified unit and subcon- tract the unit work, (4) since the Union, through its affiliation with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is subject to the control of the Interna- tional, Respondent can insist on bargaining with the International itself rather than with the Union, (5) and the Union should be disqualified from serv- ing as bargaining representative because it has en- gaged in improper and criminal conduct. Review of the record herein, including the record in Case 22-RC-7654, reveals that an elec- tion, conducted pursuant to a Stipulation for Certi- fication Upon Consent Election on October 25, 1978, resulted in a vote of six for, and four against, the Union, with four challenged ballots. Thereafter, Respondent filed timely objections to conduct af- fecting the results of the election, alleging, inter alia, that it fraudulently was induced into signing the Stipulation for Certification Upon Consent Election, thus waiving its right to a preelection hearing and a full-length campaign, based on the reasonable belief that the Union had agreed with 2 Shortly after filing its response to the Notice To Show Cause, Re- spondent filed a request for oral argument. This request is hereby denied as the record and the pleadings adequately present the issues and the po- sitions of the parties. RICHARDSON ENGINEERING CO, 703 Respondent's position regarding the voting eligibil- ity of certain employees. After investigation, the Regional Director issued a Report on Challenged Ballots and Objections in which he recommended that Respondent's objec- tions be overruled in their entirety, the challenges to the four ballots be overruled, and that these bal- lots be opened and counted. Thereafter, Respon- dent filed timely exceptions to the Regional Direc- tor's report. On March 29, 1979, the Board, having considered the Regional Director's report, Respon- dent's exceptions thereto, and the entire record, adopted the findings and recommendations of the Regional Director, and directed him, inter alia, to open and count the overruled challenged ballots. On April 9, 1979, the challenged ballots were opened and counted and a revised tally was issued and served on the parties showing that eight votes were cast for, and six against, the Union. On April 13, 1979, the Union was certified as the exclusive bargaining representative of the employees in the unit stipulated to be appropriate. 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 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. 4 3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4As noted, Respondent asserts as an affirmative defense that it does not have to bargain with the Union because the operations performed by the unit employees have become inefficient and, as a result, Respondent intends to "abolish the unit" and subcontract the unit work This defense is without merit, for such a postcertification change in terms and condi- tions of employment, if made without bargaining, would itself constitute a refusal to bargain. Also in its answer, Respondent generally denies, inter alia, pars. 12 and 13 of the complaint which allege that the Union, on or about April 13, 1979, and at other times thereafter, including on or about April 18, May 1, 8, and 14, 1979, has requested and is requesting Respondent to bargain with it, and that Respondent has refused to do so. However, while deny- ing these allegations, Respondent simultaneously admits in its answer that on an unspecified date the Union did request bargaining, but that Respon- dent refused to do so unless the Union consented to having a new elec- tion While Respondent asserts that on this occasion a union official agreed to consider this proposal, Respondent concedes that the Union never agreed to it and never mentioned it again. In addition. the General Counsel has submitted copies of two letters, both dated May 1, which the Union and its attorney, respectively, sent to Respondent, requesting that Respondent meet with the Union to commence negotiations for a con- In this proceeding Respondent also contends that it was entitled to a hearing on its objection to the election which alleged that it fraudulently was in- duced to sign the Stipulation for Certification Upon Consent Election. Prior to adopting the find- ings and recommendations of the Regional Direc- tor's Report on Challenged Ballots and Objections, the Board considered the report, the Employer's exceptions thereto, and the entire record in that case. By its adoption of the report recommending that the Employer's objections be overruled, the Board necessarily found that the objections raised no substantial or material issues warranting a hear- ing. 5 Further, it is well established that the parties do not have an absolute right to a hearing on ob- jections to an election. It is only when the moving party presents a prima facie showing of substantial or material issues which would warrant setting aside the election that it is entitled to an eviden- tiary hearing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies the constitutional requirements of due process.6 Ac- cordingly, we grant the Motion for Summary Judgment. 7 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a New Jersey corporation, main- tains its principal office and plant at New Bruns- wick, New Jersey, where it is engaged in the man- ufacture, sale, and distribution of plumbing and heating systems and related products. During the 12-month period preceding issuance of the com- plaint, a representative period, Respondent, in the course and conduct of its business operations, man- ufactured, sold and distributed products valued in tract. Respondent does not dispute the validity of the letters, does not contend it did not receive the letters, and specifically does not deny that the Union requested bargaining on these occasions. Furthermore, Re- spondent has not at any material time expressed a willingness to bargain with the Union as the certified representative of the unit employees Fi- nally, it is clear from its position set forth in its affirmative defenses and in its response to the Notice To Show Cause that Respondent believes it has been, and continues to be, under no obligation to bargain with the Union Accordingly, we find that Respondent's denials of pars. 12 and 13 of the complaint raise no substantial or material issues of fact warranting a hearing. M5 adisonville Concrete Co., a Division of Coram & Edwards. Inc.. 220 NLRB 668 (1975); Evansville Auto Parts. Inc., 217 NLRB 660 (1975). 6 GTE Lenkurt, Incorporated, 218 NLRB 929 (1975); Heavenly Valley Ski Area, a California Corporation and Heavenly Valley, a Partnership, 215 NLRB 734, (1974); Amalgamated Clothing Workers of America [Winfield Manufacturing Company] v. N.LR.B.; 424 F.2d 818, 828 (D.C. Cir. 1970). ? We hereby deny the General Counsel's motion to strike portions of Respondent's answer We further find, however, as we did with respect to the allegations in Respondent's answer discussed in fn. 4, supra, that the remaining denials and affirmative defenses in its answer and its re- sponse to the Notice To Show Cause raise no substantial or material issues of fact warranting a hearing RICHARDSON ENGINEERING CO 703 704 DECISIONS OF NATIONAL LABOR REALTIONS BOARD excess of $50,000, which were shipped from its plant in New Brunswick directly to States other than the State of New Jersey. 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 Local 11, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing 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 full-time and regular part-time warehouse and maintenance employees, including truck- drivers, electricians, automotive repair employ- ees and helpers employed by the Employer at its New Brunswick, New Jersey, location, but excluding all office clerical employees, profes- sional employees, pipefitters, guards and super- visors as defined in the Act. 2. The certification On October 25, 1978, 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 22, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining represen- tative of the employees in said unit on April 13, 1979, 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 April 13, 1979, and at all times thereafter, including on or about April 18, May 1, May 8, and May 14, the Union has request- ed Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about April 13, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since April 13, 1979, 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, 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. We also shall order that Respondent, upon request, bar- gain 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: CONCLUSIONS OF LAW 1. Richardson Engineering Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. RICHARDSON ENGINEERING CO. 705 2. Local 11, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time warehouse and maintenance employees, including truckdrivers, electricians, automotive repair employees and help- ers employed by the Employer at its New Bruns- wick, New Jersey, location, but excluding all office clerical employees, professional employees, pipefit- ters, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 13, 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 April 13, 1979, and at all times thereafter, including on or about April 18, May , May 8, and May 14, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has 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, Respon- dent 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)(1) 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, Richardson Engineering Company, New Bruns- wick, New Jersey, 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 11, Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time warehouse and maintenance employees, including truck- drivers, electricians, automotive repair employ- ees and helpers employed by the Employer at its New Brunswick, New Jersey, location, but excluding all office clerical employees, profes- sional employees, pipefitters, guards and super- visors 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 plant in New Brunswick, New Jersey, copies of the attached notice marked "Ap- pendix."8 Copies of said notice, on forms provided by the Regional Director for Region 22, 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 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 8 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 States Court of Appeals Enforcing an Order of the National Labor 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 Local 11, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and RICHARDSON ENGINEERING CO. 705 706 DECISIONS OF NATIONAL LABOR REALTIONS BOARD Helpers of America, as the exclusive represen- tative 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 represen- tative 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 understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time ware- house and maintenance employees, including truckdrivers, electricians, automotive repair employees and helpers employed by the Employer at its New Brunswick, New Jersey, location, but excluding all office clerical employees, professional employees, pipefitters, guards and supervisors as defined in the Act. RICHARDSON ENGINEERING COMPA- NY