Stan Schulte Electric, Inc.

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stan Schulte Electric, Inc. and International Brother- hood of Electrical Workers, Local No. 231, AFL-CIO. Case 18-CA-3493 June 16, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on March 16, 1972, by International Brotherhood of Electrical Workers, Local No. 231, AFL-CIO, herein called the Union, and duly served on Stan Schulte Electric, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 18, issued a complaint on March 23, 1972, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, 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 alleges in substance that on January 28, 1972, following a Board election in Case 18-RC-8775 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate;1 and that, commencing on or about March 9, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 31, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 10, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 19, 1972, the Board issued an order transferring the proceeding 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 National Labor Relations Board has delegated its authority 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 The thrust of the Respondent's answer to the complaint and its response to the notice to show cause is that the Board erred in its appropriate unit determination by improperly including therein alleged supervisors and by wrongfully excluding there- from other employees. In support of his Motion for Summary Judgment, the General Counsel argues that the Respondent is thus only challenging the appropriateness of the unit which was adjudicated in representation Case 18-RC-8775 and therefore may not be relitigated herein. We agree with the General Counsel. The record in Case 18-RC-8775 shows that the Regional Director, in his Decision and Direction of Election of November 4, 1971, included in the unit two employees alleged by the Respondent to be supervisors and excluded three employees whom the Respondent claimed should have been included. The Respondent filed with the Board a petition for review, to which was attached a portion of the transcript in the representation case hearing, claim- ing error on the part of the Regional Director with respect to the aforementioned inclusions and exclu- sions. On December 6, 1971, the Board denied the request as not raising issues warranting review. In the election conducted by the Regional Direc- tor, the tally of ballots showed that of approximately 9 eligible voters, 5 cast ballots for, and 4 against, the Union. The Respondent filed timely objections with the Regional Director raising again the issues of the Regional Director's inclusions in, and exclusions from, the unit. In his Supplemental Decision and Certification of Representative of January 28, 1972, the Regional Director overruled the objections on the grounds that they constituted postelection chal- lenges or a request for further review of his decision, and that since the Respondent had ample opportuni- ty to present evidence on these issues, his decision could not then be opened for revision. Accordingly, he certified the Union. The Respondent filed with the Board a petition for review of the Regional Director's Supplemental Decision and Certification of Representative, to which it attached three affida- vits in support of its position that the two employees included in the unit were supervisors. The Board denied the request for review as not raising issues warranting review. In its response to the notice to show cause, the I Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151; Intertype Co v Penello, 269 F Case 18-RC-8775, as the term "record" is defined in Secs. 102 68 and Supp. 573 (D C. Va, 1967); Follett Corp, 164 NLRB 378, enfd. 397 F.2d 91 102.69(f) of the Board's Rules and Regulations, Serves 8, as amended See (C.A. 7, 1968); Sec 9(d) of the NLRA. LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A. 4, 1968); 197 NLRB No. 88 STAN SCHULTE ELECTRIC, INC. 639 Respondent contends that the evidence adduced in the representation hearing and the three affidavits attached to its response raised issues requiring the Board to hold a hearing on the Regional Director's inclusions and exclusions. It also contends that Section 10(b) of the Act requires the holding of a hearing. We find no merit in these contentions. The affidavits are substantially identical with those submitted to the Board by the Respondent in its request for review of the Regional Director's Supple- mental Decision and Certification of Representative, except that they were merely reexecuted as of March 24, 1972. They therefore do not constitute newly discovered or previously unavailable evidence. Fur- ther, in denying the Respondent's requests for review as raising no issues warranting review, the Board considered the portion of the transcript as well as the affidavits submitted by the Respondent. Where there are no substantial or material issues presented, as here, no evidentiary hearing is required even under Section 10(b) of the Act.2 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 i prior I representation, proceeding.3 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent 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. We therefore find that the Respondent has not raised any issue which is properly ligitable 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 1. THE BUSINESS OF THE RESPONDENT At all times material herein, the Respondent has been and now is a South Dakota corporation having its principal place of business at Yankton, South Dakota, where it has been and currently is engaged in the business of commercial and residential electrical contracting and the manufacture of electri- cal signs. During the past year, Respondent in the course and conduct of its business operations purchased, trans- ferred, and delivered to its plant electrical raw materials and supplies valued in excess of $128,156 of which goods and materials valued at $22,928 were transported to said plant directly from States other than the State of South Dakota and goods and materials valued in excess of $38,510 were transport- ed to said plant from suppliers who had received said goods and materials directly from States other than South Dakota. 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 International Brotherhood of Electrical Workers, Local No. 231, AFL-CIO, is a labor organization 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 full-time and regular part-time journeymen and apprentice electricians and wiremen of the Respondent at its Yankton, South Dakota, location; excluding the receiving clerk-expediter, sales personnel, the clean-up man, office clericals, guards and supervisors as defined in the Act, as amended. 2. The certification On December 10, 1972, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 18 designated the Union as their representative 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 January 28, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 2 Georgia-Pacific Corporation, 193 NLRB No 133; Millard Metal Services Center, Inc, 196 NLRB No 157. 3 See Pittsburg Plate Glass Co v NLRB, 313 US 146, 162 (1941), Rules and Regulations of the Board, Secs . 102.67(1) and 102 69(c) 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about March 3, 1972, 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 March 9, 1972, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 9, 1972, 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 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, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. 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 period of certifica- tion as beginning on the date Respondent commen- ces 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Stan Schulte Electric, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local No. 231, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time journeymen and apprentice electricians and wiremen of the Respondent at its Yankton, South Dakota, location; excluding the receiving clerk-expediter , sales person- nel, the clean-up man, office clericals, guards and supervisors as defined in the Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 28, 1972, 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 March 9, 1972, and at all times thereafter, to bargain collectively with the above-named labor 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) 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 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Stan Schulte Electric, 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 International Broth- STAN SCHULTE ELECTRIC, INC. 641 erhood of Electrical Workers, Local No. 231, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time journeymen and apprentice electricians and wiremen of the Respondent at its Yankton, South Dakota, location; excluding the receiving clerk-expediter, sales personnel, the clean-up man, office clericals, guards and supervisors as defined in the Act, as amended. (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) Post at its Yankton, South Dakota, location copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 18, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Inter- national Brotherhood of Electrical Workers, Local No. 231, 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 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 full-time and regular part-time journey- men and apprentice electricians and wire- men of the Respondent at its Yankton, South Dakota, location ; excluding the re- ceiving clerk-expediter, sales personnel, the clean-up man, office clericals, guards and supervisors as defined in the Act , as amend- ed. STAN SCHULTE ELECTRIC, INC. (Employer) Dated By (Representative) (Title) 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, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Tele- phone 612-725-2611. 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