Garden City Fan & Blower Co.

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garden City Fan & Blower Co. and United Steelwork- ers of America, AFL-CIO. Case 7-CA-10408 April 26, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on June 1, 1973, by United Steelworkers of America, AFL-CIO, herein called the Union, and duly served on Garden City Fan & Blower Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on June 19, 1973, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 Adminis- trative 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 9, 1973, following a Board election in Case 7-RC-11258 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about May 25, 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 June 27, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 5, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 12, 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. 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 In its answer to the complaint and in its Opposition to General Counsel's Motion for Summary Judg- ment, Respondent contends that the Union engaged in untimely misrepresentation of material facts relating to Respondent's net profit, net worth, and rate of return and that the Union also engaged in threatening, assaulting, and intimidating employees in an effort to influence the result of the election in the underlying representation proceeding, all of which merit a de novo consideration of matters litigated in the representation proceeding. Our review of the record in Case 7-RC-11258 indicates that pursuant to a Stipulation for Certifica- tion Upon Consent Election, the Regional Director conducted an election in the appropriate unit in which 37 ballots were cast for, and 33 against, the Union with 1 ballot challenged. Thereafter, Respon- dent filed timely objections to conduct affecting the results of the election which objections included, inter alia, the same union conduct which Respondent now raises in its opposition to General Counsel's Motion for Summary Judgment. After an investiga- tion, the Regional Director ordered a hearing on Respondent's objections. The Hearing Officer's Report and Recommendations on Objections recom- mended that the objections be overruled in their entirety. Respondent thereupon filed exceptions to the Hearing Officer's report. On May 9, 1973, the Board issued its Decision and Certification of Representative in which it adopted the findings and conclusions of the Hearing Officer and certified the Union. In its Opposition to the General Counsel's Motion for Summary Judgment, Respondent contends that it should be granted a hearing de novo on its election objections because the Board, in a decision subse- quent to the instant case, modified its standards of permissible preelection conduct. In support of its pleading, Respondent cites Modine Manufacturing Company, 203 NLRB No. 77. We do not view Modine as establishing new standards but merely an elucida- tion of the many factors that the Board considers in evaluating preelection conduct. Moreover, the evi- dentiary hearing afforded the Respondent in the underlying representation proceeding appears to have developed all of the facts which might have been considered in relation to any standards of preelection conduct. Respondent concedes, further- more, that it is endeavoring to relitigate the issues considered in the representation proceeding. i Official notice is taken of the record in the representation proceeding Golden Age Beverage Co, 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1%9); Case 7-RC-1 1258, as the term "record" is defined in Secs. 102.68 and Intertype Co. v. Peneio, 269 F .Supp. 573 (D.C. Va., 1967); Follett Corp., 164 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See NLRB 378, enfd. 397 F.2d 91 (CA. 7, 1968); Sec. 9(d) of the NLRA. LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1%8); 210 NLRB No. 55 GARDEN CITY FAN & BLOWER CO. 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 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 is a Delaware corporation3 with its principal office and place of business in Niles, Michigan, where it is engaged in the manufacture and sale of industrial fans and related products. During 1972, Respondent manufactured and sold products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped directly to points located outside of the State of Michigan. 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 United Steelworkers 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- See Pittsburgh Plate Glass Co. v. NL.R B, 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c). 3 In its answer to the complaint Respondent denied that it was an Illinois 207 ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its plant located at 1701 Terminal Road, Niles, Michigan; but excluding all office clerical employees , profession- al employees, guards and supervisors as defined in the Act. 2. The certification On September 15, 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 7, 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 May 9, 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 Ref sal Commencing on or about May 14, 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 May 25, 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 May 25, 1973, 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(aX5) 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 corporation and averred that it was a Delaware corporation . In the Motion for Summary Judgment the General Counsel admitted that the Respondent was in fact a Delaware corporation. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 (1962); 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 (1964); 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. Garden City Fan & Blower Co., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its plant located at 1701 Terminal Road, Niles, Michigan; 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 May 9, 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 May 25, 1973, and at all times thereafter, to bargain collectively with the 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 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, Garden City Fan & Blower Co., Niles, Michigan, 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 United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by the Employer at its plant located at 1701 Terminal Road, Niles, Michigan; but excluding all office clerical employees, profession- al 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 plant at 1701 Terminal Road in Niles, Michigan, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." GARDEN CITY FAN 7, after being duly signed by Respondent's represent- ative, 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. (c) Notify the Regional Director for Region 7, 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 United Steelworkers of America, 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- & BLOWER CO. 209 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 Employer at its plant located at 1701 Terminal Road, Niles, Michigan; but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. GARDEN CITY FAN & BLOWER CO. (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.