W. R. Ames Co.

W. R. AMES CO. W. R. Ames Company and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87. Case 20-CA-5846 May 18, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS Upon a charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint dated December 17, 1969, against the W. R. Ames Company, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices 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, com- plaint, and notice of hearing before a Trial Examiner were duly served upon Respondent. With respect to the unfair labor practices, the com- plaint alleges in substance that on October 13, 1969, the Union was duly certified as the exclusive bargaining representative of Respondent's employees in the unit found appropriate by the Board and that, since on or about November 14, 1969, and thereafter, Respondent has refused and is refusing to recognize and bargain with the Union as such exclusive bargaining representa- tive, although the Union has requested and is requesting it to do so. On about January 15, 1970, Respondent filed its answer, which denied the commission of the unfair labor practices alleged and raised the following affirmative defenses: 1. "Respondent admits an election was held but denies that an uncoerced or lawful majority of the unit employees selected the Union as their exclusive collective bargaining representative;" 2. "Respondent admits that the Union was certified by the Board but denies that the certification was lawful, proper or just and denies the Union is the lawful, proper representative of [Respondent's] unit employees;" 3. "Respondent asserts that the Acting Regional Director's Report on Objections contains improper conclusions of fact and law and improper recom- mendations that the Company's objections in first amended objections be overruled and the Union be certified as the collective bargaining representa- tive of the Company's unit employees;" 4. "Respondent contends further that the Union was improperly certified in this matter and that its objections in first amended objections should be sustained because of the reasons and arguments set forth in its exceptions to Regional Director's Report on Objections and brief in support thereof;" 5. "Respondent contends that it has been denied due process in not being allowed to have a hearing 487 regarding its objections in first amended objec- tions. " On February 18, 1970, the General Counsel filed with the Board a Motion for Summary Judgment with attached documents which were incorporated in the motion, sub- mitting, in effect, that there are no issues of fact or law requiring a hearing, and praying the issuance of a Decision and Order finding the violations as alleged in the complaint. Thereafter, on February 19, 1970, the Board issued an order transferring case to the Board and notice to show cause why the General Counsel's Motion for Summary Judgment should not be granted. Thereafter, Respondent filed an answer to notice to show cause and request for oral argument.' 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. 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 January 14, 1969, the Union filed a petition in Case 20-RC-8580, seeking to represent certain employees of W. R. Ames Company, herein called Respondent or Employer, at its Fresno, California, location. On February 10, 1969, the Regional Director for Region 20, approved a stipulation for certification upon consent election in the above case, providing for an election in the following unit of employees: All production and maintenance employees includ- ing truckdrivers, and shipping and receiving clerks, employed by the Employer at its Fresno, California, location, excluding all other employees, guards, and supervisors, as defined in the Act. On May 23, 1969, an election by secret ballot 'in the unit described above was conducted under the super- vision of the Regional Director. The official tally of ballots served upon the parties at the conclusion of the election showed that of approximately 24 eligible voters, 15 cast ballots for, and 7 cast ballots against the Union. There were 2 challenged ballots, which were insufficient to affect the results of the election. There- after, about May 29, 1969, Respondent filed timely objec- tions to the election, and on June 25, 1969, filed first amended objections to conduct effecting results of the election. On July 29, 1969, pursuant to an investigation of the objections filed by Respondent , the Acting Region- al Director issued a Report on Objections recommending that the Board overrule the objections in their entirety and issue an appropriate certification of representative. On about August 15, 1969, the Respondent filed with the Board its exceptions to the Acting Regional Director's Report on Objections, and a brief in support of Employ- er's exceptions to Acting Regional Director's Report on Objections. On October 13, 1969, the Board issued ' In our opinion the record, the exceptions, and answer to our notice to show cause adequately present the issues and positions of the parties We therefore deny the motion 182 NLRB No. 69 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Decision and Certification of Representative adopting the Acting Regional Director's findings and recommenda- tions and certifying the Union as the exclusive represent- ative of all employees in the above-described unit for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. . About November 6, 1969, the Union requested that Respondent bargain collectively with it as the representa- tive of the employees in the certified unit, but Respondent refused. On November 19, 1969,'the Union filed the charge upon which these proceedings are predicated. In its answer to the Board's notice to show cause, Respondent attacks the validity of the certification, con- tending that its objections to the election held on May 23, 1969, should not have been overruled and that in any event it should have been 'afforded a hearing ,on its objections. The Respondent 'opposes the General Counsel's Motion for Summary Judgment and submits that said motion should be denied in its entirety; that the complaint in this matter should be dismissed; and that a hearing should be directed with regard to the Company's objections to the election. FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein , a California corporation with a plant at Fresno, California , and is engaged in the manufacture, sale, wholesale , and installation of sprinkler irrigation sys- tems. During the part year , the corporation purchased and received at its Fresno , California , location, goods valued in excess of $50 ,000 directly from suppliers locat- ed outside the State of California. Respondent admits, and we find , that Respondent is, and at all times material herein has been , an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7). II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, is a labor organization within the meaning of Section 2 (5) of the Act. , It is thus clear that Respondent's answer to the notice to show cause questions the validity of the Board's Decision and Certification of Representative on the same ground heretofore presented to, the Board in its excep- tions to the Acting Regional Director's Report on Objec- tions. Respondent neither asserts that it has any newly discovered evidence, nor sets out any special circum- stances warranting reexamination by the Board of the determination made in the representation proceedings in Case 20-RC-8580.2 In essence, therefore, Respond- ent's answer to notice to show cause attempts to relitigate issues which were ipvolved in the prior representation case and which have already been considered and reject- ed by the Board. Accordingly, and as Respondent con- cedes, its refusal to bargain, we find that Respondent has not raised any issue which is properly triable in the instant unfair labor practice proceeding.' As all material issues have been previously decided by the Board or are admitted by Respondent's answer to this complaint, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Coun- sel's Motion for Summary Judgment is granted. On the basis of the record before us, the Board makes the following: , 2 In its unpublished Decision, the Board adopted,. pro forma, the Acting Regional Director's recommendation that Objections 1, 3, 4, and 8 be overruled in the absence of exceptions thereto Moreover, the Board found that even if all of the facts alleged in the attachments to the Employer's exceptions were true, such facts would not warrant setting aside the election The Board therefore found that the Employer's exceptions to the Acting Regional Director's recommendations that Objections 2, 5, 6, and 7 be overruled do not warrant reversal of the Acting Regional Director with respect thereto, or a hearing ',Pittsburgh Plate Glass Company v N L R B , 331 U S 146, Banco Credito y Ahorro Ponceno, 167 NLRB 397 III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees includ- ing truckdrivers, and shipping and receiving clerks, employed by the Employer at its Fresno, California, location, excluding all other employees, guards and supervisors as defined in the Act. 2. The certification On May 23, 1969, a majority of the employees of Respondent in the appropriate unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purposes of collective bargaining with the Respondent, and on October 13, 1969, the Union was certified as the collective-bargaining repre- sentative of the employees in the said unit and continues to be such representative. B. The Request to Bargain and Respondent's Refusal Commencing on or' about November 6, 1969, and continuing to date, the Union has requested and is requesting Respondent to bargain collectively with the Union as the exclusive collective-bargaining representa- tive of all the employees in the above-described unit. Since November 14, 1969, and continuing, to date, Respondent has refused, and continues to refuse, to W. R. AMES CO. bargain collectively with the Union as exclusive collec- tive-bargaining representative of all employees in said unit. Accordingly, we find that that Union was duly certified by the Board as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above in the Board's certification, and that the Union at all times since October 13, 1969, has been and now is the exclusive bargaining representa- tive 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 November 14, 1969, 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 PRACTICE UPON COMMERCE The acts of 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 com- merce. THE REMEDY Having found that 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 ; upon request, bargain collectively with the Union as the exclusive representative of all employ- ees in the appropriate unit ; and, if an understanding is reached , embody such understanding in a signed agree- ment. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See: Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Com- pany dl bl a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F. 2d 600 (C.A. 5), cert. denied 379 U. S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). , CONCLUSIONS OF LAW 1. The W. R. Ames Company , Fresno, California, is an Employer engaged in commerce within the,meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers , AFL-CIO, District Lodge No. 87, 489 is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its Fresno, California, location including truckdrivers, and shipping and receiv- ing clerks, but excluding all other 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. Since October 13, 1969, the above-named labor organization has been the 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 November 44, 1969, and it all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargain- ing representative of all the employees 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 aforementioned 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, 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 Sec- tion 2(6) and (7) of the Act.' ORDER Pursuant to Section' 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that Respondent, W. R. Ames Company, Fresno, California, its officers, agents, succes- sors, 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 Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees includ- ing truckdrivers, and shipping and receiving clerks, employed by the Employer at its Fresno, California, location, excluding all other employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaran- teed 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 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions of employment, and, if an understanding is reached, embody said understanding in a signed agree- ment (b) Post at its principle office at Fresno, California, copies of the attached notice marked Appendix" Copies of said notice, on forms provided by the Regional Director for Region 20, shall, after being duly signed by Respondent' s representative , be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in-e^nspicuous 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 said Regional Director for Region 20, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith ' In the event this Order is enforced by a Judgment of the 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 Aerospace Workers, AFL-CIO District Lodge No 87, 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, if an understanding is reached, embody such understand- ing in a signed agreement The bargaining unit is All production and maintenance employees including truckdrivers, and shipping and receiving clerks, employed by the Employer at its Fresno, California, location, excluding all other employees, guards, and supervisors as defined in the Act 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 with International Association of Machinists and Dated By W R AMES COMPANY (Employer) (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 questions concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 13050 Federal Building , 450 Golden Gate Avenue, San Francisco, Cali- fornia 94102, Telephone 415-556-3197