Overhead Door Corp.

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Advance Industries Division-Overhead Door Corpo- ration and Fox River Valley District Council of Carpenters, Local Union 2497, United Brother- hood of Carpenters and Joiners of America, AFL-CIO. Case 30-CA-2392 November 26, 1973 DECISION AND ORDER By MEMBERS JENKINS , KENNEDY AND PENELLO Upon a charge filed on July 6, 1973, by Fox River Valley District Council of Carpenters, Local Union 2497, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, and duly served on Advance Industries Division-Over- head Door Corporation, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 30, issued a complaint on July 11, 1973, 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, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 25, 1973, following a Board election in Case 30-RC-1944 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about June 28, 1973, 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 July 16, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 13, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 21, 1973, 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. Respon- dent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the 1 Official notice is taken of the record in the representation proceeding, Case 30-RC-1944, 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); 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 In its answer to the complaint and response to the Notice To Show Cause, the Respondent admits all the factual allegations of the complaint and Motion for Summary Judgment, but argues that the Union's certification, issued in representation Case 30-RC-1944, is invalid because of the erroneous Regional Director's determinations therein. The General Counsel contends that the Respondent is raising representation matters which were litigated and decided adversely to it and that it may not relitigate them herein. We agree with the General Counsel. Our review of the record reflects that in his Decision and Direction of Election issued on March 19, 1973, amended on March 20, 1973, the Regional Director found, inter alia, that six department heads, including Lila Blakeslee and Darlene Romenesco, alleged by the Respondent to be supervisors, were employees who were included in the appropriate production and maintenance unit and eligible to vote in the directed election. On April 18, 1973, the Board denied the Respondent's request for review on the supervisory issue as raising no substantial issues warranting review. After the election of April 19, 1973, the tally of ballots showed that of approximate- ly 149 eligible voters, 73 cast ballots for, and 65 against, the Union, with 7 challenged ballots which were not sufficient to affect the results of the election. Thereafter, the Respondent filed timely objections to the conduct of the election alleging, in substance, that: (1) the Union engaged the support of alleged Supervisors Blakeslee and Romenesco to persuade, encourage, and coerce employees to vote for the Union; (2) the Union sponsored a free dinner party for employees and promised another if it won the election; (3) the Union advised employees that they would be charged a nominal initiation fee of $1 if they joined the Union before the election, rather than a $25 fee; and (4) the Union misrepresented to employees who were eligible to vote in the election that they were ineligible to vote. After investigating the objections, the Regional Director, on May 25, 1973, issued his Supplemental Decision and Certifi- cation of Representative, in which, he found that the Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969); 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. 207 NLRB No. 76 ADVANCE INDUSTRIES DIVISION 549 objections did not raise substantial or material issues with respect to the conduct of the election, and therefore he overruled the objections in their entirety and certified the Union. The Respondent filed a timely request for review of the Regional Director's Supplemental Decision which the Board, on June 19, 1973, denied as raising no substantial issues warrant- ing review. 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.2 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 3 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 1. THE BUSINESS OF THE RESPONDENT Respondent, an Indiana corporation, is engaged in the manufacture and service of radio control devices at its Appleton, Wisconsin, location. During the past calendar year, a representative period, the Respon- dent purchased and received at its Appleton, Wisconsin, facility goods valued in excess of $50,000 in interstate commerce, from points located directly 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 Fox River Valley District Council of Carpenters, Local Union 2497, United Brotherhood of Carpen- 2 See Pittsburgh Plate Glass Co., v. N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c). 3 In its response to the Notice To Show Cause, the Respondent concedes that it is not entitled to relitigate issues litigated in the representation proceeding, absent newly discovered or previously unavailable evidence or special circumstances- It contends however that "special circumstances" are ters and Joiners of America, 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, production related technicians, and service em- ployees employed by the Employer at its Apple- ton, Wisconsin, location; excluding outside instal- lation employees, salesmen, service manager, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On April 19, 1973, 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 May 25, 1973, 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 June 28, 1973, 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 June 28, 1973, 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 June 28, 1973, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the present herein by reason of the fact that the Regional Director's Decision and Direction of Election and his Supplemental Decision were patently erroneous in fact and law and that the Board summarily denied the Respondent's request for review. We find no merit in this contention because the matters which have been previously litigated and adversely determined against the Respondent do not constitute special circumstances. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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, 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Advance Industries Division-Overhead Door Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Fox River Valley District Council of Carpen- ters, Local Union 2497, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, production related technicians, and service employ- ees employed by the Employer at its Appleton, Wisconsin, location; excluding outside installation employees, salesmen, service managers, office cleri- cal 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 May 25, 1973, 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 June 28, 1973, 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, Advance Industries Division-Overhead Door Cor- poration, Appleton, Wisconsin, 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 Fox River Valley District Council of Carpenters, Local Union 2497, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, production related technicians, and service em- ployees employed by the Employer at its Apple- ton, Wisconsin, location; excluding outside instal- lation employees, salesmen, service manager, 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. ADVANCE INDUSTRIES DIVISION 551 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 Appleton, Wisconsin, location copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 30 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 thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 30 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." 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 production and maintenance employ- ees, production related technicians, and service 'employees employed by the Employ- er at its Appleton, Wisconsin, location; excluding outside installation employees, salesmen, service managers, office clerical employees, professional employees, guards and supervisors as defined in the Act. ADVANCE INDUSTRIES DIVISION-OVERHEAD DOOR CORPORATION (Employer) 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 Fox River Valley District Council of Carpenters, Local Union 2497, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, as the 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, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861.