John Singer, Inc.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Singer, Inc. and Local No. 125, International Brotherhood of Firemen and Oilers, AFL-CIO. Case 30-CA-1697 May 25, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on August 27, 1971, a first amended charge filed on September 7, 1971, and a second amended charge filed on September 10, 1971, by Local No. 125, International Brotherhood of Firemen and Oilers, AFL-CIO, herein called the Union, and duly served on John Singer, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a complaint on October 18, 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)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint, 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 complaint, inter alia, alleges in substance that on September 2, 1971, following a Board election in Case 30-RC-1519 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate; i and that, commencing on or about September 7, 1971, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On October 29, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. With respect to the refusal-to- bargain allegations, the Respondent admits in substance all of the material factual allegations, including its refusal to recognize and bargain with the Union, but denies the validity of the certification. Respondent also denies that it has been engaged in commerce and in operations affecting commerce within the meaning of the Act. On November 9, 1971, a hearing on all of the allegations in the complaint commenced before Trial i Official notice is taken of the record in the representation proceeding, Case 30-RC-1519, as the term "record" is defined in Sees 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269 Examiner Harry R. Hinkes. On November 30, 1971, during the course of the hearing, the Trial Examiner granted the General Counsel's motion to sever the refusal-to-bargain allegations from those alleging violation of Section 8(a)(1) and (3) of the Act to enable the General Counsel to institute summary judgment proceedings as to the refusal-to-bargain allegations. On December 6, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 10, 1971, the Board issued an order transferring the proceeding2 to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent did not file a response to Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment As indicated above, Respondent's primary defense to the refusal-to-bargain allegations is its contention that the certification is invalid. In sum, it asserts that the Board's representation petition form, which the Union used, is defective in that "it does not contain a declaration by the person signing'it, under penalties of the Criminal Code, that its contents are true and correct to the best of his knowledge and belief," that the petition was also defective in that the Union had not ascertained whether Respondent would refuse to accord recognition before filing the petition, and that the Board failed to adequately investigate the Union's showing of interest. These same issues had been raised in the Request for Review in representa- tion Case 30-RC-1519, which request was denied by the Board on August 11, 1971. It is well settled that in the absence of newly discovered 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.3 All of the above issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respon- dent does not offer to adduce at a hearing any newly discovered or 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. 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 2 This Order related only to the severed refusal-to-bargain allegations. 3 See Pittsburgh Plate Glass Co v N L.R B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Sees 102 67(f) and 102 69(c) 197 NLRB No. 7 JOHN SINGER, INC. We therefore find that the above issues are not properly litigable in this unfair labor practice proceeding. With respect to its denial that it is in commerce or operations affecting commerce, we note that in its answer to the complaint Respondent admitted the factual allegation in the complaint that during the past year, a representative period, Respondent shipped goods and materials valued in excess of $50,000 directly to points outside the State of Wisconsin, where its place of business is located. In light of this admission, we find no merit in this denial. Siemons Mailing Service, 122 NLRB 81. In view of the foregoing, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Wisconsin corporation, main- tains its office and place of business in Milwaukee, Wisconsin, where it is engaged in the manufacture of hydraulic equipment. During the year preceding the issuance of the complaint herein, a representative period, the Respondent shipped goods and materials valued in excess of $50,000 directly to points located outside the State of Wisconsin. We find, on the basis of the foregoing, 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local No. 125, International Brotherhood of Firemen and Oilers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Employer, excluding all office clerical em- ployees, seasonal employees,4 professional em- 4 The complaint's unit description inadvertently omits mention of the exclusion of "seasonal employees," a category specifically excluded in the 89 ployees, guards and supervisors as defined in the Act. 2. The certification On August 20, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for' Region 30 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on September 2, 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 September 7, 1971, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 7, 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 September 7, 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, Respon- dent 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 opera- tions described 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 com- merce. V. THE REMEDY Subsequent to the filing of his Motion for Summa- ry Judgment, the General Counsel filed a motion with the Board asserting that the reasons advanced Direction of Election and in the Certification in Case 30-RC-1519 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Respondent for refusing to recognize and bargain with the Union are "patently frivolous," and that, as part of the Board's remedy for the violation of Section 8(a)(5), certain remedies in addition to the conventional direction to bargain should be provid- ed. A brief in opposition was thereafter filed by the Respondent. We agree with the General Counsel that the reasons advanced by the Respondent to defend its refusal to bargain have no ment and, indeed, are so insubstantial as to be frivolous. While there are assertions by the Respondent that it has been and is willing to bargain with the Union, all of its offers to bargain were conditioned on preservation of its "right" to present to a court of appeals the same contentions attacking the validity of the Board's certification of the Union. Clearly, no meaningful bargaining can take place when at the same time the Respondent is contesting its bargaining obligation. While due process normally permits a party to litigate issues to the full extent provided by law, the frivolous contentions advanced by the Respondent here warrant the inference that it is not seeking to preserve any real defense; rather it is apparent that its true motive in pursuing further litigation is to delay the enforcement of our determination that it has a statutory obligation to bargain. The complete lack of substance to the Respondent's "defense" compels the grant of a remedy designed not only to correct Respondent's past unlawful refusal to accord its employees' duly designated bargaining represent- ative its statutory role, but to end now that continuing conduct. Further, this remedy should provide for a means of communication by the Union with unit employees to facilitate the Union's reclaim- ing the allegiance it enjoyed when selected by a majority in the Board-conducted election. Accord- ingly, in addition to directing the Respondent to bargain with the Union, we shall, to remedy the Respondent's violation of Section 8(a)(5), order that the Union be given reasonable use of Respondent's bulletin boards and other places where notices to employees are customarily posted, during the period of contract negotiations, for the posting of union notices, bulletins, and other literature, in order that the employees may have free and ready access to information from the Union concerning all aspects of collective representation and the collective-bar- gaining negotiations. We shall also require that Respondent furnish the Union a list of names and addresses of its employees and keep that list current for a period of 1 year from the time Respondent commences to bargain in good faith to assist the Union to meet with the individuals involved in order to explain the circumstances of the instant proceed- ing and the Union's future plans. Further, in order to insure that the employees will be accorded the services of the Union for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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). As we have found that the Respondent's only apparent objective is to postpone its statutory obligation, we regard any further litigation as an abuse of the processes of the Board and the courts. For this reason, we believe that in the event Respondent seeks judicial review of our Order herein or disregards our Order, thus requiring the General Counsel to seek judicial enforcement, the policies of the Act will be effectuated by the General Counsel proceeding promptly on our behalf to seek appropri- ate relief under Section 10(e) of the Act as to our directions that the Respondent grant the Union access to its bulletin boards and furnish and maintain employee lists, and to also seek appropriate relief under Rule 38, Federal Rules of Appellate Procedure. N.L.R.B. v. Smith & Wesson, 424 F.2d 1072 (C.A. 1); N.L.R.B. v. United Shoe Machinery Corporation, 445 F.2d 633 (C.A. 1); General Tire and Rubber Co. v. N.L.R.B., 451 F.2d 257 (C.A. 1). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. John Singer, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No 125, International Brotherhood of Firemen and Oilers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Employer, excluding all office clerical employees, seasonal employees, 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. Since September 2, 1971, the above-named labor 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 September 7, 1971, JOHN SINGER, INC. and at all times thereafter , to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit , Respon- dent 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, Respon- dent has interfered with , restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 meaning of Section 8(a)(1) 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 91 the Union a ' list of names and addresses of all employees currently employed and keep such list current for a period of 1 year following' the commencement of good-faith bargaining with the Union. (d) Post at its Milwaukee, Wisconsin, place of business copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representa- tive, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, John Singer, Inc., 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 conditions of employment with Local No. 125, International Brotherhood of Firemen and Oilers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of the Employer, excluding all office clerical em- ployees, seasonal employees, professional em- ployees, 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 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 under- standing is reached, embody such understanding in a signed agreement. (b) Upon request of the Union, immediately grant the Union and its representatives reasonable use of its bulletin boards and all places where notices to employees are customarily posted, such access to continue through the period of the collective-bar- gaining negotiations. (c) Upon request of the Union, make available to 5 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 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 Local No. 125, International Brotherhood of Firemen and Oilers, AFL-CIO, as the exclusive represent- ative 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 representa- tive of all employees in the bargaining unit described 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 agree- ment. The bargaining unit is: All production and maintenance employ- ees of the Employer, excluding all office clerical employees , seasonal employees, pro- fessional employees, guards and supervisors as defined in the Act. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, grant the Union and its agents reasonable use of our bulletin boards and other places where notices to employees are, posted. WE WILL, upon request, give the Union a list of names and addresses of employees currently employed and keep that list current for a period of 1 year from the commencement of negotia- tions. Dated By (Representative) (Title) JOHN SINGER, INC. (Employer) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861.