John S. Barnes Corp.

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John S. Barnes Corporation and Lodge 1553, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Case 13-CA-10757 February 29, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on July 15, 1971, by Lodge 1553, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on John S. Barnes Corporation, herein called the Respondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Re- gion 13, issued a complaint on August 31, 1971, against Respondent, alleging that Respondent had engaged in and was engaging 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 Relations Act, as amended.Copies of the charge, com- plaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on June 30, 1971, fol- lowing a Board election in Case 13-RC-10159, 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 July 9, 1971, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On September 13, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 18, 1971, counsel for the General Counsel, filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 29, 1971, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter 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- ' Official notice is taken of the record in the representation proceeding, Case 13-RC-10159, as the term "record" is defined in Secs 102 68 and 102.69(£) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (CA 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 F.Supp 573 (D.C. Va., 1967), Follett Corp., 164 NLRB 378, enfd. 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA. 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 Counsel for the General Counsel contends that all issues in dispute herein were decided by the Board in the representation proceeding, Case 13-RC-10159, and that he is therefore entitled to summary judgment as a matter of law. The basic position of the Respondent in its answer to the complaint and response to the Notice To Show Cause2 is that the certification is invalid because of its objections to the second election and the alleged inap- propriateness of the unit in which the election was held. The record in the representation proceeding shows that, pursuant to the Regional Director's Decision and Direction of Election, as amended, an election was con- ducted on August 12, 1964, in the stipulated unit of production and maintenance employees. The Union failed to receive a majority of the votes cast, and there- after filed timely objections to the conduct of the elec- tion, which were consolidated with several unfair labor practice complaints against Respondent for hearing before a Trial Examiner.The Trial Examiner, inter alia, found the Respondent had violated Section 8(a)(5) of the Act and excluded four classifications from the de- scription of the appropriate unit. On January 23, 1970, the Board issued a Decision, Order, and Direction of Second Election.' The Board, inter alia, reversed the Trial Examiner's 8(a)(5) finding and increased the number of employees in the appropriate unit by two' without changing the modified unit description, as de- termined by the Trial Examiner. On May 21, 1970, the second election was held in the unit set forth in the Notice of Election, which, except for the payroll period, was identical to the bargaining unit found, ap- propriate by the Trial Examiner and adopted by the Board. Of 172 ballots cast, 85 were for, and 75 against, the Union, with 12 votes being challenged, which were determinative of the election results. On May 28, 1970, the Respondent filed timely objec- tions alleging in substance that the following conduct interfered with a free choice in the election: (1) the Union's distribution of handbills containing a facsimile of an NLRB Order with partisan messages attached; (2) Board agents' posting and distribution of election notices which described a voting unit different from the 2 The Board has considered all documents filed by Respondent, including its reply to General Counsel's response to Respondent's opposition to Mo- tion for Summary Judgment. John S. Barnes Corporation, 180 NLRB 911. ° Ibid, fn. 4 195 NLRB No. 123 JOHN S. BARNES CORPORATION unit for the first election; (3) the Union's distribution of a handbill containing a marked ballot facsimile; (4) the Union's distribution of a handbill containing material misrepresentations; and (5) union agents' con- versations with, and surveillance of, prospective voters, and electioneering in the polling area. On November 23, 1970, the Board issued an Order, adopting the Re- gional Director's recommendations that the Respond- ent's objections be overruled and challenges to two ballots be sustained; it also directed a hearing on the remaining challenges. On June 30, 1971, the Board issued a Decision and Certification of Representative (unpublished), adopting the Hearing Officer's findings and recommendations, which sustained the challenge to one ballot and overruled the remaining nine chal- lenges, and certifying the Union as the employees' rep- resentative in the appropriate unit. Respondent argues that the Board in Barnes, supra, rejected the Trial Examiner's modified unit description, and that the issue of the appropriate unit was not re- solved by the Board's alleged pro forma adoption of the Regional Director's finding overruling the Respond- ent's objection based on the asserted alteration of the stipulated unit. We find no merit in these contentions. The Board, in its Decision and Order in Barnes, supra, adopted the Trial Examiner's unit description as the appropriate unit in which the second election was di- rected and held, and the Board affirmed the appropri- ateness of the modified unit in its Order adopting the Regional Director's recommendation overruling the Respondent's objections and in its Decision and Certifi- cation of Respresentative. We have again considered the issue of the description of the appropriate, unit raised by the Respondent in the instant proceeding and find that the unit, as described in the complaint herein, is appropriate.' It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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 the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation proceeding,' and the Respondent does not offer to adduce at a hearing any newly discovered or S It is, moreover, apparent that any variance between the unit as de- scribed in the Regional Director's Decision and Direction of Election and the unit as described for purposes of the second election and certification does not affect the basic appropriateness of the certified unit, or the Union's majority therein at the time of the second election, or the ability of the parties to bargain in that unit; consequently, any such variance is not a valid defense to the complaint, and other means exist for resolving any genuine issue concerning the unit description 'Alterman Transport Lines, Inc, 187 NLRB No. 144, fn. 6, The May Department Stores Company, 186 NLRB No 17, fn. 5 6 See Pittsburgh Plate Glass Ca. 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). 657 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 the Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding.' We shall, accordingly, 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 THE RESPONDENT Respondent, a Delaware corporation, maintains its principal office and place of business at Odin Industrial Plaza, Rockford, Illinois, and is, and has been at all times material herein, engaged in the manufacture of hydraulic pumps and machine tool structures. During the last calendar or fiscal year, the Respondent has shipped goods valued in excess of $50,000 directly to points outside the State of Illinois. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Lodge 1553, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. ' Respondent's answer also denies the allegations of the complaint per- taining to the Union's requests and the Respondent's refusals to bargain in the certified unit except it admits that on August 9, 1971, it declined to furnish the Union with information previously requested or to meet and bargain with the Union Attached to the General Counsel's Motion for Summary Judgment, as Exhibit "S", is a letter to the Union dated August 9, 1971, in which Respondent declined to furnish the Union with the infor- mation requested in its letters of July 2 and August 3, 1971, or to meet and bargain with the Union in the certified unit. In its Response to the Notice To Show Cause, the Respondent neither alludes to nor seeks to controvert the Union's requests for bargaining and the Respondent's reply thereto, which are attached to the Motion for Summary Judgment (Exhibits 0, P, Q, R, and S). Thus, the truth of the factual allegations of the complaint is either expressly admitted by the Respondent in its answer to the complaint or stands admitted by virtue of the uncontroverted factual averments in the General Counsel's motion The May Department Stores Company, 186 NLRB No. 17, Carl Simpson Buick, Inc., 161 NLRB 1389 Accordingly, we agree with the General Counsel that the Respondent has raised no issues litigable in the unfair labor practice proceeding before us, and that all of the allegations of the complaint are deemed to be admitted as true 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding plant clerical employees, tool crib attend- ants, timekeepers, shipping and receiving clerks, outside truckers, stockroom attendants, janitors, and servicemen at the Respondent's Rockford, Il- linois, plant, and excluding office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On May 21, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 13 designated the Union as their representa- tive for the purpose of collective bargaining with the Respondent. The Union was certified as the collective- bargaining representative of the employees in said unit on June 30, 1971, 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 July 2, 1971, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about July 9, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 9, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, 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 activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship 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 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, and, upon request, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date 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 Company d/b/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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. John S. Barnes Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Lodge 1553, International Association of Machin- ists and Aerospace Workers, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding plant clerical employees, tool crib attendants, timekeepers, shipping and receiving clerks, outside truckers, stockroom attendants, janitors, and service- men at the Respondent's Rockford, Illinois, plant and excluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since June 30, 1971, the above-named labor orga- nization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 9, 1971, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargaining JOHN S. BARNES, CORPORATION 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) of the Act. 6. By the aforesaid refusal to bargain , Respondent has interfered with, restrained, and coerced, and is in- terfering 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 engag- ing 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 Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, John S. Barnes Corporation, its officers, agents, successors, and as- signs, 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 Lodge 1553, International As- sociation of Machinist and Aerospace Workers, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and. maintenance employees in- cluding plant clerical employees, tool crib attend- ants, timekeepers, shipping and receiving clerks, outside truckers, stockroom attendants, janitors, and servicemen at the Respondent's Rockford, Il- linois, plant, and excluding office clerical em- ployees, 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 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 la- bor organization as the 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 understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its Rockford, Illinois, plant copies of the attached notice marked "Appendix."' Copies of siad 659 notice, on forms provided by the Regional Director for Region 13 after being duly signed by Respondent's representative, shall be posted by Respondent immedi- ately 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Lodge 1553, International Association of Machinists and Aerospace Workers, 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 guaranted them by Sec- tion 7 of the Act. WE WILL, 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 employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance em- ployees including plant clerical employees, tool crib attendants, timekeepers, shipping and receiving clerks, outside truckers, stock- room attendants, janitors, and servicemen at the Respondent's Rockford, Illinois, plant, and excluding office clerical employees, professional employees, and supervisors as defined in the Act. JOHN S. BARNES CORPORATION (Employer) ' In the event 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By Any questions concerning this notice or compliance (Representative) (Title) with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room- 881, This is an official notice and must not be defaced by, 219 South Dearborn Street, Chicago, Illinois 60604, anyone. Telephone 312-353-7572. 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.