Rish Equipment Co.

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rish Equipment Company, Eastern Division of Bluefield Supply Company and International Union of Operating Engi- neers, Local Union No. 158 , AFL-CIO. Case 5-CA-3694. May 19, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA Upon a charge filed by International Union of Operating Engineers, Local Union No. 158, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint dated February 17, 1967, against Rish Equipment Company, Eastern Division of Bluefield Supply Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the National Labor Relations Act, as amended. The Respondent filed a timely answer, admitting in part and denying in part the allegations of the complaint, and requesting that the allegations be dismissed. Copies of the charge, complaint, and notice of hearing were duly served on the Respondent and the Union. On March 3, 1967, the General Counsel filed with the Board a motion for summary judgment, submitting that Respondent's answer does not allege, nor has the General Counsel been informed of, any new evidence relevant to the issues that the Respondent desires to place in issue in this proceeding which were not previously litigated and decided by the Board;' requesting that the Board enter judgment against the Respondent on the pleadings herein, making findings of fact as alleged in the complaint; and, concluding that, as a matter of law, the Respondent had violated Section 8(a)(1) and (5) of the Act as alleged in the complaint, and order an appropriate remedy therefor. On March 7, the Board, through its Associate Executive Secretary, issued an order transferring proceeding to the Board and notice to show cause, in which it ordered that the instant proceeding be transferred and continued before the Board and gave notice that cause be shown, in writing, filed with the Board in Washington, D.C., on or before March 21, 1967, why the motion for summary judgment should not be granted. No response to the notice to show cause was received by the Board within the prescribed time limit. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. ' Cases 5-CA-3379 and 5-RC-5359 not published in NLRB volumes. Upon the entire record in this case, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT The record before us establishes that on November 29, 1965, the Regional Director for Region 5 issued a Decision and Direction of Election in Case 5-RC-5359, in which a description of the appropriate unit of the Respondent's employees was set forth. On December 30, 1965, and January 3, 1966, a secret-ballot election was conducted under the direction of the Regional Director for Region 5 among the employees in the appropriate unit; the election was inconclusive inasmuch as the challenged ballots were sufficient in number to affect the results of the election. On January 10, 1966, the Respondent filed timely objections to conduct affecting the ' results of the election. On January 20, 1966, the Acting Regional Director, following an investigation of the objections and challenges, in a Supplemental Decision ordered a hearing on the Employer's objections and to, resolve the issues raised by'seven of the eight challenges; with ' respect to the eighth and final challenge, the Acting Regional Director noted that, if determinative, it would,be resolved in an unfair labor practice proceeding, Case 5-CA-3379. The Supplemental Decision further provided that if no exceptions were filed to the Hearing Officer's recommendations, they would be adopted. On February 7 and 8, 1966, a hearing was held pursuant to the Supplemental Decision. On March 16, 1966, Hearing Officer Maurice V. Nelligan, Jr., issued his report on objections and challenges, wherein he recommended that the Employer's objections to the conduct of the election be overruled, that the challenge to the ballot of Morgan Bartlett be sustained, and that the chal- lenges to the ballots of James Carter, Alfred Dunham, Robert Meadows, Thomas Saunders, Herman Phlegar, Jr., and Edward Bergloff be overruled and their ballots 'be opened and counted. No exceptions to these, recommendations were filed within the time prescribed therefor. On April 18, 1966, the Regional Director for Region 5 issued a Second Supplemental Decision and Order, adopting the Hearing Officer's recom- mendations, absent exceptions thereto, and stating that 'he would open and count the ballots of Carter, Dunham, Meadows, Saunders, Phlegar, and Bergloff and thereupon prepared and caused to 'be served on the parties a ' revised tally of ballots, including therein the count of said ballots, He further stated that in the event the'revised tally of ballots showed that the Petitioner ' received a majority of the valid ballots cast, a ,certification of representatives would issue, but if the'revised tally 164 NLRB No. 107 RISH EQUIPMENT CO. showed that the challenged ballot of Richard J. Brooke was determinative of the, results of the election, the matter would'be^held in abeyance pending final, resolution of Case 5-CA-3379. On April 27, 1966, the Regional Director issued a revised tally of ballots, which showed that the challenged ballot of Richard J. Brooke was still determinative of the election. On May 20, 1966, Trial Examiner Sidney Sherman issued a Decision and Recommended Order in Case 5-CA-3379, finding that Richard J. Brooke, an employee of the Respondent, had been discriminatorily discharged in violation of Section 8(a)(3) of the Act, and ordering the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position. On July 5, the Board, by its Associate Executive Secretary, issued an Order affirming in its entirety the Decision and Recommended Order of the Trial Examiner. On July 22, 1966, the Regional Director issued a'second revised tally of ballots, including therein the count of Brooke's ballot, which showed that a majority of the valid votes in the election had been cast for the Petitioner. Accordingly, on July 28, 1966, the Regional Director 'certified the Union as the exclusive bargaining representative of the Respondent's employees in the appropriate unit. The complaint substantively alleges the appropriateness of the unit, the election, and the certification in Case 5-RC-5359, all of which matters were or could have been litigated in that case. It further alleges that the Union, on or about August 3 and 9 and September 14, 1966,,requested that the Respondent bargain with it with'respect to the, employees in the 'certified unit, and that Respondent refused the requests at all material times herein, in violation of Section 8(a)(5) of the Act. The answer contains a general denial of these allegations. We find that Respondent's denial of the General Counsel's allegations relative to Case 5-RC-5359 raises no issues which are properly triable in the instant unfair labor practice proceeding, it being well established that, absent newly discovered or previously unavailable evidence, issues which were or could have been raised in a representation proceeding may not 'be ' relitigated in a related refusal-to-bargain proceeding,2 and at no time has Respondent alleged the , existence of newly discovered or previously unavailable ' evidence relevant to such issues. We further find that the Respondent's denial of the General Counsel's allegations relative to the Union's bargaining demands raises no triable factual issues. The motion for summary judgment contends that exhibits 1, 2, and 3, attached thereto, comprising copies of two 783 letters and a' telegram addressed to Respondent to which the Respondent made no,reply, establish the demand for bargaining allegations of the complaint. On the basis of this exhibit evidence, and absent any countervailing evidence or' response by Respondent to the notice to show cause, we agree with this contention and find, as facts, that on August 3 and 9 and September 14, 1966, the Union requested that Respondent bargain collectively with the Union as the exclusive bargaining representative of all the employees of Respondent in the certified unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that the Respondent, at all times since August 3, 1966, has refused and continues to refuse to bargain collectively in good faith with the Union as the exclusive representative of all the employees of Respondent in the certified unit. All material factual issues thus having been decided by the Board or admitted in the answer to the complaint, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's motion for summary judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is and at all times material herein has been a corporation duly organized and existing by virtue of the laws of the State of West Virginia, having a place of business in Salem, Virginia, where it is engaged in the business of servicing heavy road building and construction equipment. During the 12- month period preceding the filing of the complaint, a representative period, the Respondent sold and shipped goods, materials, and products valued in excess of $50,000 from its place of business in Salem, Virginia, directly to points located outside the Commonwealth of Virginia, and made purchases of goods and equipment valued in excess of $50,000 from points and places outside the Commonwealth of Virginia. Respondent admits, and we find, that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local Union No. 158, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. ' Pittsburgh Plate Glass Company v N L R B, 313 U S 146, Collins & Atkman Corporation , 160 NLRB 1750, United States Rubber Company, 155 NLRB 1298 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit At all times material herein the following employees of the Respondent have constituted a unit appropriate for collective bargaining within the meaning of the Act: All mechanics, service personnel, servicemen, utility men, apprentices, parts department employees, and custodians at the Respondent's Salem, Virginia, plant, excluding all office cleri- cal employees, sales personnel, professional employees, guards, and supervisors as defined in the Act. 2. The certification On January 3, 1966, a majority of the employees of Respondent in said unit, in a secret election conducted under the supervision of the Regional Director for Region 5, designated the Union as their representative for the purposes of collective bargaining with Respondent; and, on July 28, 1966, the Regional Director for Region 5 certified the Union as the collective-bargaining representative of the employees in said unit and the Union continues to be such representative. B. The Request to Bargain and the Respondent's Refusal Commencing on or about August 3, 1966, and continuing to date, Respondent did refuse, and continues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above, and that the Union, at all times since July 28, 1966, has been and now is, the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since August 3, 1966, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit, and that, by such refusal, the 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 acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged 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 embody in a signed agreement any understanding reached. CONCLUSIONS OF LAW 1. Rish Equipment Company, Eastern Division of Bluefield Supply Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local Union No. 158, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All mechanics, service personnel, servicemen, utility men, apprentices, parts department employees, and custodians at the Respondent's Salem, Virginia, plant, excluding all office clerical employees, sales personnel, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On July 28, 1966, and at all times thereafter, the above-named labor organization has been and continues to be the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 3, 1966, and at all times thereafter, to bargain collectively with the above-named 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 practices within the meaning of Section 8(a)(5) and (1) 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 to them in Section 7 of the Act, and has thereby engaged 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. RISH EQUIPMENT CO. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Rish Equipment Company, Eastern Division of Bluefield Supply Company, Salem, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment, with International Union of Operating Engineers, Local Union No. 158, AFL-CIO, as the exclusive and duly certified bargaining representative of its employees in the following appropriate unit: All mechanics, service personnel, servicemen, utility men, apprentices, parts department employees, and custodians at the Respondent's Salem, Virginia, plant, excluding all office cleri- cal employees, sales personnel, 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 exercise of the rights guaranteed to them by 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 embody in a signed agreement any understanding reached. (b) Post at its Salem, Virginia, facilities, copies of the attached notice marked "Appendix."3 Copies of said notice, to be furnished by the Regional Director for Region 5, 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 the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " 785 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with International Union of Operating Engineers , Local Union No. 158, 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 employees 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 representative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment , and embody in a signed agreement any understanding reached. The bargaining unit is: All mechanics , service personnel, servicemen , utility men, apprentices, parts department employees , and custodians at the Respondent's Salem , Virginia , plant, excluding all office clerical employees, sales personnel , professional employees, guards, and supervisors as defined in the Act. RISH EQUIPMENT COMPANY, EASTERN DIVISION OF BLUEFIELD SUPPLY COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-8460, Extension 2100.