South Mississippi Electric Power Assn.

SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION South Mississippi Electric Power Association and In- ternational Brotherhood of Electrical Workers, Lo- cal 903, AFL-CIO. Case 15-CA-7149 March 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on December 18, 1978, by In- ternational Brotherhood of Electrical Workers, Local 903, AFL-CIO, herein called the Union, and duly served on South Mississippi Electric Power Associ- ation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 15, issued a complaint on December 27, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair 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, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on September 29, 1978, following a Board election in Case 15-RC- 6320, 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 18, 1978, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative and to furnish relevant and necessary bargaining in- formation, although the Union has requested and is requesting it to do so. On January 8, 1979, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the com- plaint, and submitting its affirmative defenses. On January 11, 1979, Respondent filed an amendment to answer solely to correct the wording in its original answer. On January 12, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 18, 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause I Official notice is taken of the record in the representation proceeding. Case 15-RC-6320. as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTV Electrosysiems, 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); Inertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. why the General Counsel's Motion for Summary Judgment should not be granted. Thereafter on Janu- ary 29, 1979, Respondent 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 answer to the complaint, amendment to an- swer, and response to Notice To Show Cause, Re- spondent denies the validity of the Union's certifica- tion based on: (1) its election objections alleging an illegal waiver of the Union's initiation fees and the unlawful conduct of the Union's observer in keeping a list of employees who had voted in the election, and (2) the denial of a hearing on its objections which is alleged to be a violation of due process.2 Counsel for the General Counsel contends in its Motion for Sum- mary Judgment that Respondent is attempting to re- litigate issues which were litigated in the representa- tion case. We agree. Review of the record herein, including that of the representation proceedings in Case 15-RC-6320, shows that pursuant to a Decision and Direction of Election issued by the Acting Regional Director on July 18, 1978, 3 an election by secret ballot was con- ducted on August 17, 1978, which the Union won, 61 to 42, with 5 challenged ballots. The challenges were not sufficient to affect the results of the election. Thereafter, on August 24, 1978, Respondent filed timely objections to conduct affecting the results of the election, alleging: (1) that a letter mailed by the Union to Respondent's employees prior to the elec- tion stating, inter alia, that "There will be no initi- ation fee for anyone joining the Union," was an im- proper waiver of such fees under the standard set out in N.L.R.B. v. Savair Manufacturing Co.,4 and (2) that the union observer at one of the election sites re- corded on a list the names of employees who had 2 These issues of alleged union misconduct and the denial of due process were stated as affirmative defenses by Respondent in its answer and amend- ment to answer to the complaint. In his Decision and Direction of Election, the Acting Regional Director found, inter alia, that contrary to the Union's position, only a systemwide unit of the employees at Respondent's headquarters and plant locations is appropriate. and that two of Respondent's employees in the positions of office supervisor and maintenance service foreman. respectively, are statu- tory supervisors, and are thereby excluded from the unit. On July 31, 1978, Respondent filed a request for review contending that the Acting Regional Director erred in failing to examine the Union's showing of interest in the broader unit and in finding the two employees to be supervisors. Thereafter, on August IS, 1978, the Board denied the request as raising no substantial issues warranting review. '414 U.S. 270 (1973). 241 NLRB No. 51 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voted, and was observed when doing so by at least two employees. On September 29, 1978, after an in- vestigation, the Acting Regional Director issued his Supplemental Decision and Certification of Repre- sentative in which he found that: (I) no evidence was presented which indicated that the waiver of initi- ation fees was conditional on any form of employee support for the Union and that, in fact, the Union had refused to accept new members until after the election, and (2) that, even if the list was used to rec- ord who had voted and was not utilized to check the accuracy of the challenges, at most only a small num- ber of names could have been recorded and, further, the action was taken when no eligible voters were in the voting area. Therefore, the Acting Regional Di- rector recommended that the objections should be overruled and that the Union should be certified. Thereafter, on October 13, 1978, Respondent filed a timely request for review of the Regional Director's Supplemental Decision and Certification of Repre- sentative in which it reiterated to the Board its posi- tion taken before the Regional Director. On October 20, 1978, the Union filed an opposition to the Em- ployer's request for review. Thereafter, on November 20, 1978, the Board denied the request as raising no substantial issues warranting review. Respondent, as one of its affirmative defenses, re- quests a hearing on its objections in this proceeding, alleging that the failure to conduct a hearing consti- tuted a denial of due process. We find no merit in this contention. It is well established that a party is not entitled to a hearing on objections absent a showing of substantial and material issues.5 Here the Board found, in denying Respondent's request for review, that Respondent failed to make such a showing. Fur- ther, the Board has held, with judicial approval, that evidentiary hearings are not required in unfair labor practice cases and summary judgment is appropriate where, as here, there are no substantial or material facts to be determined.6 It is well settled that in the absence of newly 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.7 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- I National Beryllia Corporation, 222 NLRB 1289 (1976), and cases cited therein. I Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976), and cases cited therein. 'See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 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. 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 Mississippi corporation with its principal office and place of business in Hattiesburg, Mississippi, is a public utility engaged in the business of generating and transmitting electrical energy to fixed electric power associations. During the past 12 months, a representative period, Respondent per- formed services valued in excess of $500,000, and pur- chased and received goods valued in excess of $50,000, directly from points located outside the State of Mississippi. We find, on the basis of the foregoing, 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. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local 903, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 1. THE UNFAIR LABOR PRACTICES 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 of the Employer, including the transmission depart- ment, and the plant clerical employees; exclud- ing office clerical employees, chemists, profes- sional employees, guards and supervisors as defined by the Act. 426 SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION 2. The certification On August 17, 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 15, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on September 29. 1978, and the Union con- tinues 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 November 28, 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 and to furnish it with relevant and necessary bargaining information concerning the employees in the above-described unit, including, but not limited to, a copy of all job descriptions included in the bargaining unit, and the wages and fringe benefits paid for each job descrip- tion. Commencing on or about December 18, 1978, and continuing at all times thereafter to date. Re- spondent has refused, and continues to refuse, to rec- ognize and bargain with the Union as the exclusive representative for collective bargaining of all employ- ees in said unit, and to furnish relevant and necessary bargaining information. Accordingly, we find that Respondent has, since December 18, 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 to furnish relevant and necessary bargaining information and that, by such refusal, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I1) of the Act. IV. THE EFFECI' OF THE UNFAIR LABOR PRACTICES UPON (OMMERCE The activities of Respondent set forth in section 111, 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. 1HEi REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and () 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; and furnish the Union, upon request, relevant and necessary bargaining information concerning the em- ployees in the appropriate unit, including, but not limited to, a copy of all job descriptions included in the bargaining unit, and the wages and fringe benefits paid for each job description. 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 Poultr' Companl, 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 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: CONCLUSIONS OF LAW 1. South Mississippi Electric Power Association, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local 903, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Employer, including the transmission department, and the plant clerical employees; excluding office clerical employees, chemists, professional employees, guards and supervisors as defined by the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 29, 1978, the above-named la- bor 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 December 18, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- 427 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By refusing on or about December 18, 1978, and at all times thereafter to furnish relevant and neces- sary bargaining information concerning said employ- ees, including, but not limited to, a copy of all job descriptions included in the bargaining unit, and the wages and fringe benefits paid for each job descrip- tion, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 8. 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, South Mississippi Electric Power Association, Hat- tiesburg, Mississippi, 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 con- ditions of employment with International Brother- hood of Electrical Workers, Local 903, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees of the Employer, including the transmission depart- ment, and the plant clerical employees; exclud- ing office clerical employees, chemists, profes- sional employees, guards and supervisors as defined by the Act. (b) Refusing to furnish relevant and necessary bar- gaining information concerning employees in the above-described unit, including, but not limited to, a copy of all job descriptions included in the bargaining unit, and the wages and fringe benefits paid for each job description. (c) 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 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 understand- ing is reached, embody such understanding in a signed agreement, and, upon request, furnish relevant and necessary bargaining information concerning the employees in the aforesaid appropriate unit, includ- ing, but not limited to, a copy of all job descriptions included in the bargaining unit, and the wages and fringe benefits paid for each job description. (b) Post at its Hattiesburg, Purvis, and Mozelle, Mississippi, facilities copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 15, af- ter being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 Pursuant 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 Inter- national Brotherhood of Electrical Workers, Lo- cal 903, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT refuse to furnish the above- named Union with relevant and necessary bar- gaining information concerning employees in the bargaining unit described below, including, but not limited to, a copy of all job descriptions in- cluded in the bargaining unit, and the wages and fringe benefits paid for each job description. WE WILL 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. 428 SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION WE ILL, 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; and upon request. furnish the Union with relevant and necessary bargaining informa- tion concerning the employees in the bargaining unit described below, including but not limited to, a copy of all job descriptions included in the bargaining unit, and the wages and fringe bene- fits paid for each job description. The bargaining unit is: All production and maintenance employees of the Employer, including the transmission de- partment, and the plant clerical employees; excluding office clerical employees, chemists, professional employees, guards and supervi- sors as defined by the Act. SOUTH MISSISSIPPI ELECTRIC POWER ASSO- CIATION 429