Visual Educom, Inc.

VISUAL EDUCOM 969 Visual Educom, Incorporated and Local 1392, Interna- tional Brotherhood of Electrical Workers, AFL-CIO. Case 25-CA-4877 August 18, 1972 DECISION AND ORDER 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 BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on April 6, 1972, by Local 1392, International Brotherhood of Electrical Work- ers, AFL-CIO, herein called the Union, and duly served on Visual Educom, Incorporated, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25, issued a complaint on April 13, 1972, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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, 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 March 9, 1972, following a Board-conducted election,' the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commenc- ing on or about March 29, 1972, 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 April 27, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Subsequently, an amendment to the complaint correcting the spelling of one word issued, and Respondent filed an answer to the amendment. On May 8, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 17, 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 1 Case 25-RC-4750 2 Official notice is taken of the record in the representation proceeding, Case 25-RC-4750, as the term "record" is defined in Secs 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), 198 NLRB No. 126 In its answer to the complaint and in its memoran- dum on the General Counsel's Motion for Summary Judgment, Respondent denies that the Union is the exclusive bargaining representative of its employees in the unit stipulated to be appropriate and that it is obligated to bargain with the Union since the Board did not afford it a hearing in the underlying representation proceeding, Case 25-RC-4750. We find no merit in Respondent's contention. The record in Case 25-RC-4750 indicates that in an election conducted pursuant to a Stipulation for Certification Upon Consent Election, of 155 ballots cast, 59 were for, and 49 against, the Union and 11 were challenged. The parties entered into a stipula- tion for the resolution of challenged ballots, ap- proved by the Regional Director, which resulted in a final tally of ballots which disclosed that 57 ballots were cast for, and 55 against, the Union. Respondent filed objections to conduct affecting the results of the election in which it alleged that the Union, during a union organizational meeting, had made misrepre- sentations. After investigation, the Regional Director issued his Report on Objections in which he recommended that the objections be overruled and that the Union be certified as exclusive bargaining agent in the stipulated unit. The Board adopted the Regional Director's recommendations and on March 9, 1972, issued a Decision and Certification of Representa- tive. Thus, all factual and legal issues raised in Respondent's answer and in its memorandum on the General Counsel's Motion for Summary Judgment have been determined by admissions in the answer, by a prior Board determination, or were ones that could have been litigated in the prior Board proceeding. 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 issues raised by the Respondent in this 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 3 See Pittsburgh Plate Glass Co v NLRB, 313 U.S 146, 162 (1941); Rules and Regulations of the Board , Secs 102.67(1) nad 102 69(c). 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 is a Delaware corporation with a place of business in Michigan City, Indiana, where it is engaged in the manufacture of educational commu- nications products . During the past year Respondent manufactured and shipped products valued in excess of $50,000 directly to points outside the State of Indiana. During the same period , Respondent purchased goods and materials valued in excess of $50,000, which were shipped to its plant directly from States other than the State of Indiana. 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. 2. The certification On October 8, 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 25, 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 March 9, 1972, 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 March 9, 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 29, 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 29, 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. II. THE LABOR ORGANIZATION INVOLVED Local 1392, International Brotherhood of Electri- cal Workers, 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 production and maintenance employees employed by the Respondent at its Michigan City, Indiana, facility, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in 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. VISUAL EDUCOM 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 commenc- es 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. Visual Educom, Incorporated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1392, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Respondent at its Michigan City, Indiana, facility, but excluding all office clerical 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 March 9, 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 29, 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 971 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Visual Educom, Incorporated, 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 1392, Interna- tional Brotherhood of Electrical Workers , AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Respondent at its Michigan City, Indiana, facility, but excluding all office clerical employees, 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 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 Michigan City, Indiana, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 25, 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 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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." 972 DECISIONS OF 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 1392, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representa- tive 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 employees employed by the Respondent at its Michigan City, Indiana, facility, but excluding all office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. VISUAL EDUCOM, INCORPORATED (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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.