Imperial Fire Hose Co.

I)E('ISIONS OF NATIONA I.LABOR RELATIONS BOARD Imperial Fire Hose Company and International La- dies' Garment Workers' Union local 415-475, AFL-CIO. Case 12 CA-8516 July 23, 1979 DECISION AND ORDER BY MI!MBERS PNEII.I. . MURI'IY, ANI) TRUESI)DAI.I Upon a charge and amended charge filed on Feb- ruary 23 and March 5, 1979, respectively, by the In- ternational Ladies' Garment Workers' Union Local 415-475, AFL-CIO, herein called the Union, and duly served on Imperial Fire Hose Company, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Direc- tor for Region 12, issued a complaint and notice of hearing on March 20, 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 (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on November 3, 1978, following a Board election in Case 12-RC-5515, 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 December 29, 1978, and continuing to date, and more particularly by written request on De- cember 29, 1978, and by telegram on or about Febru- ary 15, 1979, the Union has requested and is request- ing Respondent to bargain collectively with respect to rates of pay. wages, hours of employment, and other terms and conditions of employment, as the exclusive bargaining representative of all the employees of Re- spondent in the appropriate unit; and that since on or about December 29, 1978, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to recognize and/or bargain collectively with the Union as the exclusive bargaining representative, al- though the Union has requested and is requesting it to do so. On April 2, 1979, Respondent filed its an- I Official notice is taken of the record in the representation proceeding. Case 12 R 5515, as the term "record" is defined in Ses. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8. as amended. See LTV Elecirosyslem. Inc., 166 NLRB 938 (1967), enid. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va. 1957): Follet Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA. as amended. swer to the complaint admitting in part, and denying in part, the allegations in the complaint, and raising affirmative defenses to the complaint. On April 13. 1979, counsel for the General Counsel filed directly with the Board a motion to transfer the case to the Board and for Summary Judgment. Subse- quently, on April 24, 1979, 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. Re- spondent thereafter, on May 8, 1979, filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional abor 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 admits all opera- tive factual averments of the complaint, including the Union's request, and Respondent's refusal, to bar- gain, but denies the validity of the majority status of the Union and the propriety of its certification. Re- spondent bases its denial on the alleged ground that the Union committed objectionable conduct before, during, and after the election, to which Respondent filed objections; that the Regional Director errone- ously overruled said objection; and that the Board erroneously denied Respondent's request for review.2 2 Also in its response, Respondent alleges that the Union had earlier filed other charges in Cases 12 ('A 8406 and 12 C'A 8446 2. and the Regional D)irector had earlier issued complaint thereon, alleging, inter alia, that Re- spondent had violated Sec. 8la)(5) and (). "by unilaterally granting wage increases to its employees" and "by unilaterally establishing a night shift in the cure-table department without negotiating or consulting with the named union." Respondent continues that the Regional Director then. on January 25, 1978, issued an order consolidating the two earlier cases and. on Febru- ary 23. 1979, the same day that the Union filed the charge in the present case, issued an order postponing hearing indefinitely in the earlier to cases. Respondent had filed answers to the complaint and amended complaint in the earlier two cases, denying, inter alia. that the Union was the exclusive representative of the unit employees on the ground that the t nion's certifica- tion and the election on which it was based were invalid. Thus. since the underlying issue in both the earlier cases. and in the present case. is whether the Union is the validly certified exclusive collective-bargaining representa- tive of' the unit employees. Respondent contends that the General Counsel's Motioin for Summary Judgment in the present case is also a Motion fr Partial Summary Judgment in the earlier filed two cases. Further, Respon- dent asserts that the (ieneral Counsel's failure to consolidate the present charge and complaint with the earlier cases and his Motion ftir Summary Jludgment are an attempt to deprive Respondent of ait hearing and to put Respondent n the position oft having t lace two adverse rulings (on the same certification issue. Thereore. Respondent requests that the Board deny the Motion foir Summary Judgment, remand the present case fr consolidation with the earlier consolidated cases raising the same certification issue, and order that the matter be heard by an administrative law judge fThe General ('ounsel's motion does not address this question and indeed Respondent only subsequently raised it in its response to the show cause 243 NLRB No. 93 634 INPIRIAI. FIRIE I SF ('O \() PAN '6 The General Counsel contends that Respondent is at- tempting to litigate issues which were, or could have been, raised in the underlsing representation proceed- ing, and that summary judgment is. therefore, appro- priate. We agree with the General ('ounsel. An examination of the entire record. including the record in Case 12-RC 5515, discloses that, pursuant to a Decision and Direction of Election issued by the Regional Director foir Region 2 on August I. 1978. an election was conducted on August 31. 1978. among the employees of Respondent in the tollowing unit found appropriate: All production and maintenance employees in- cluding plant clerical employees employed by the Employer at its Miami. Florida, plant; ex- cluding office clerical employees, guards and su- pervisors as defined in the Act. The tally of ballots showed that of approximatel, 53 eligible voters, 49 cast ballots, of which 30 were cast for, and 17 against, the Union. and 2 were chal- lenged. The challenged ballots were not sufficient in number to affect the results of the election. On Sep- tember 8. 1978. the Employer filed objections to the election. An investigation of the objections was made and, on November 3, 1978, the Acting Regional Director issued his Supplemental Decision, Order, and Certifi- cation of Representative, in which he concluded that the said objections, whether considered individually or in their totality, lack sufficient merit to warrant setting the election aside: overruled the objections: and, having found that the Petitioner secured a ma- jority of the valid votes cast, certified the Petitioner. Thereafter, on November 16, 1978. Respondent filed with the Board a request for review of the Sup- plemental Decision. On January 22, 1979, the Board, having carefully reviewed and considered Respon- dent's objections and all the evidence, denied Respon- dent's request for review, as it raised no substantial issues warranting review. Meanwhile, by letter dated December 29, 1978, the Petitioner requested that Respondent bargain with it "over a collective-bargaining agreement covering" the unit employees described in the Supplemental Decision. Also, by telegram dated February 15, 1979, the Union "demand[ed] that you commence bargain- ing with said local as the exclusive bargaining agent of your employees as we have previously requested." order. We find no merit to Respondent's contention. and shall den) its re- quest to consolidate the present case with the earlier consolidated cases, for the reason that the validity of the Union's certification in the underlying representation proceeding (Case 12-RC 5515) was thoroughly litigated in that proceeding and. as we point out herein. Respondent has advanced no newly discovered or previously unavailahle evidence which would permit relitigation of this issue. In its answer, as stated above. Respondent admits that it has received written and telegraphic requests to bargain from the Inion and that it has refused to bargain with the Union for the reasons that the Union is not the valid exclusive majorit representa- tive of the unit employees and its certification was improper because the Union committed objectionable conduct before, during. and after the election, not- withstanding the Acting Regional Director's nd Board's findings to the contrary. It thus appears that Respondent is attempting in this proceeding to reliti- gate issues relating to the excluhsive representative sta- tus of the UInion which were ull\ litigated and finall determined in the underlNi g representation proceed- ing. It is well settled that in the absence of( nexl dis- covered 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.' All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not otffer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingls. we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINI)IN(iS ()o FA(I 1. 11Wi BUSINFSS OF RSP(NI)I.N I Imperial Fire Hose Company is now, and has been at all times material herein, a corporation duly orga- nized under and existing by virtue of the laws of the State of Florida. At all times material herein, Respon- dent has maintained a plant in Miami, Florida, where it is engaged in the business of manufacturing fire hoses. Annually, in the course and conduct of its business operations, Respondent has received, at its plant, goods and materials valued in excess of $50,000, which were shipped directly to it from points located outside the State of Florida. See Pirtthurgh Plae Glass ( ' v. RB, 313 I S. 146, 162 (1941i: Rules and Regulations of the Board, Secs 102.67(f) and 102 6 9()c 635 I)t(ISIO(NS OF( NATIONA. IABOR REL.ATIONS BO()ARI) We find, on the basis of the ioregoing. that Respon- dent 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. 11. IL LABO R ()RiANiZAlION INVOIAVI) International l.adies' Garment Workers' Union, Local 415-475, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. II1. THEi UNFAIR ABOR PRA( II(IES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding plant clerical employees, employed by Respondent at its Miami, Florida, plant; exclud- ing office clerical employees, guards and supervi- sors as defined in the Act. 2. The certification On August 31, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 12, designated the Union as their representative for the purpose of collective-bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of' the employees in said unit on November 3, 1978, 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 December 29, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about December 29, 1978, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, recognize, and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 29, 1978, 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, 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 (I) of the Act. IV. '1111. FIFE:( OF 11 UNFAIR ABO()R P'RA([ I(TiS UPI'()N (OMMI!R('I! The activities of Respondent set forth in section Ill, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. 111 RMl!)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ii.g 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poulro Comparn. n., 136 NLRB 785 (1962): Commerce Compan d/hbla Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817: Burnett Con- struction 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: CONC(IUSIONS OF LAW I. The Respondent, Imperial Fire Hose Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, Local 415-475, AFL CIO. is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding plant clerical employees, employed by Re- spondent at its Miami, Florida, plant, excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- 636 IMPERIA. FIRI HO()SE (CO()MPANY poses of collective bargaining within the meaning of Section 9(h) of the Act. 4. Since November 3, 1978, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 29, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all employees of Respon- dent in the appropriate unit, Respondent 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) 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 Rela- tions Board hereby orders that the Respondent, Im- perial Fire Hose Company, Miami, Florida, its offi- cers, 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 con- ditions of employment with International Ladies' Garment Workers' Union, Local 415 475, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees, in- cluding plant clerical employees, employed by Respondent at its Miami, Florida, plant; exclud- ing office clerical employees, guards and supervi- sors 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 exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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 plant located in Miami, Florida, cop- ies of the attached notice marked "Appendix."4 Cop- ies of said notice, on forms provided hb the Regional Director for Region 12, atter being duly signed bh Respondent's representative, shall be posted bh Re- spondent immediately upon receipt thereof, and he 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps have been taken to compl herewith. ' In he event that this Order is enfo)rced h a Judgment I .a t 'nited Stales ('ourt of Appeals. the words in the notice reading "Posted hb Order ofl' the National L.abor Reilillons Board" shall read "Posted Pursuant t .a Judgnment of the I nited State, Court of Appeals Enfoirclg an Order ol the Naatonal labor Relations Board " APPENDIX Norl(c- To EMPI.OY)rIS PosIE) BY ORDER OF 1111E NAII1)NAI LABOR REI.AI()NS BOARD An Agency of the United States Government WE NVIIlI Nor refuse to bargain collectively concerning rates of pay. wages. hours, and other terms and conditions of employment with Inter- national adies' Garment Workers' Union. Lo- cal 415 475, AFL-CIO, as the exclusive repre- sentative oft' the employees in the bargaining unit described below. WE iN.ti. NOt in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WlLt., upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed 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 production and maintenance employees including plant clerical employees employed by the Employer at its Miami, Florida, plant: excluding office clerical employees, guards and supervisors as defined in the Act. IMPERIAL FIRE HosE COMPANY 637