Basic Wire Products, Inc.

BASIC WIRE PRODUCTS, INC. 351 Basic Wire Products, Inc. and United Paperworkers International Union, AFL-CIO. Case 9-CA-8098 April 29, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on October 25, 1973, by United Paperworkers International Union,l AFL - CIO, therein called the Union, and duly served on Basic Wire Products, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 9, issued a complaint and amended complaint on November 16 and 27, 1973, respectively, 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 January 18, 1973, following a Board election in Case 9-RC-9635 the International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, herein called Sul- phite Workers, was certified as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate, and that, subsequently on August 23, 1973, this certification was amended upon Sulphite Workers petition in Case 9-AC-38 to designate the Union as the certified representative.' Thereafter, commencing on or about September 19, 1973, Respondent has refused, and continues to refuse, to bargain collectively with the Union, although the Union has requested it to do so. On November 21, 1973, Respondent answered the complaint admitting in part, and denying in part, the allegations in the complaint and raising two affirma- tive defenses. On December 21, 1973, the General Counsel filed directly with the Board a Motion for Summary Judgment. Respondent's response, entitled "Opposi- tion to Motion for Summary Judgment," was filed on December 26, 1973. Subsequently, on January 9, 1974, the Board issued an order transferring the proceeding to the Board together with 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 the Notice To Show Cause by letter dated January 10, 1974, electing to stand on its original response. 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 responses, Respondent contends that by reason of its objections to the election, alleging union acts and conduct prior to, during, and following the election, the certifica- tion of representative issued on the basis of the election in Case 9-RC-9635 was invalid, or, at the very least, it was entitled to a hearing on its objections. We do not agree. A review of the entire record, including those in Cases 9-RC-9635 and 9-AC-38, reveals that in the election conducted on July 28, 1972, pursuant to a Stipulation for Certification Upon Consent Election, a majority vote was cast in favor of the Sulphite Workers. Respondent filed timely objections to conduct affecting the results of an election, alleging in substance that Sulphite Workers had created an impression of immediate financial gain to employees in return for a union vote, had actually paid an employee in the vicinity of the polls, and by other acts had unfairly affected the election results. After an investigation, the Regional Director issued a Report on Objections on September 21, 1972, recommending that the objections be overruled and the Sulphite Workers certified. In so doing, he found that the payment to the employee observer after the election was compensation for lost time and travel expenses incurred while attending preelection confer- ences, and acting as an observer. Respondent filed exceptions with the Board, renewing its objections and requesting hearing thereon. The Board, on January 18, 1973, issued a Decision and Certification of Representative, adopting the Regional Director's findings, conclusions, and recommendations, and certifying the Sulphite Workers. Subsequently, upon the Sulphite Workers request, and after an investigation in Case 9-AC-38, the certification was amended by the Acting Regional Director on August 23, 1973, to name the Union, in place of the Sulphite Workers, as the certified representative. The Respondent filed a timely request ' Official notice is taken of the record in the representation proceeding, Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C A. 4, 1968); Case 9-RC-9635, and the amendment to the certification proceeding , Case Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969); 9-AC-38, as the term "record" is defined in Secs . 102.68 and 102.69(f) of Intertype Co v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 the Board's Rules and Regulations, Series 8, as amended See LTV NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 210 NLRB No. 59 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for review which the Board denied on September 12, 1973, as raising no substantial issues warranting review. In the instant proceeding Respondent has renewed his representation case objections and request for a hearing thereon. It is well settled that in the absence of newly discovered or previously unavailable evi- dence or special circumstances a respondent in an 8(a)(5) proceeding 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.3 We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. In its response, the Respondent also raises affirma- tive defenses of Section 10(b) of the Act and res judicata. We find no merit therein. As to the 10(b) contention, it appears that the charge herein was timely filed on October 25, 1973, within 6 months of the Union's bargaining demand on September 19, 1973, and the refusal thereof by the Respondent on September 27, 1973. As to the resjudicata issue, the Respondent contends that the order dismissing the refusal-to-bargain charge in Case 9-CA-7606, filed on February 22, 1973, and complaint therein, constituted litigation thereof so as to bar the instant proceeding. That charge and complaint was with- drawn at the request of the Sulphite Workers without any hearing or adjudication on the merits. Thus, there was no final judgment upon which to base the doctrine of res judicata. See The Cavern Supply Company, Inc., 203 NLRB No. 97, fn. 1. As there is no merit in Respondent's defenses, and as it has not raised any issues properly litigable in this proceeding, we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102.69(c). 3 Respondent, in his response to the Motion for Summary Judgment, contends that NLRB v Savair Manufacturing Co, 414 U.S. 270 (1973), requires reconsideration of the objections set forth in the representation case, particularly with respect to the payment of the employee observer, Respondent directs our attention to fn . 6 in Savair, specifically Collins and Aikman Corp. v. NLRB., 383 F.2d 722 (CA. 4, 1967). As in the instant FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, is engaged in the manufacture of wire products in its plant located at Canal Winchester, Ohio. During the past 12 months, a representative period, Respondent had direct inflow of goods and materials valued in excess of $50,000, which it purchased and caused to be shipped in interstate commerce to its plant located in Canal Winchester, Ohio, from points directly outside the State of Ohio. 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 Paperworkers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. Ill. 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 em- ployed by Respondent at its plant located at 59 N. Gender Road, Canal Winchester, Ohio, but excluding all office clerical employees , guards, and supervisors as defined in the Act. 2. The certification On July 28, 1972, 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 9 designated the Sulphite Workers as their representative for the purpose of collective bargaining with the Respondent. The Sulphite Workers was certified as the collective- case, Collins dealt with payment to an employee to act as an election observer, which, under the circumstances, the Court found to be unreasonable and excessive. The payment herein, however, was found to be compensation for lost time and travel expenses incurred while attending preelection conferences and acting as an observer. Accordingly, the decisions in Collins, and the Supreme Court in Savair, which dealt with waiver of initiation fees prior to an election, are distinguishable and do not mandate reconsideration of this objection. BASIC WIRE PRODUCTS, INC. 353 bargaining representative of the employees in said unit on January 18, 1973, which certification was thereafter amended to name the Union as certified representative 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 19, 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 September 27, 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 representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since September 27, 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 (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 wits- *n 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- ec 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. Basic Wire Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Paperworkers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its plant located at 59 N. Gender Road, Canal Winchester, Ohio, but exclud- ing all office clerical employees, guards, and supervi- sors 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 August 23, 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 September 27, 1973, 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 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Basic Wire Products, Inc., Canal Winchester, Ohio, 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 Paperwork- ers International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent at its plant located at 59 N. Gender Road, Canal Winchester, Ohio, but excluding all office clerical 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 Canal Winchester, Ohio, plant copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 9, 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 9, 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 ay 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 United Paperworkers International Union, 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 production and maintenance employees employed by Respondent at its plant located at 59 N. Gender Road, Canal Winchester, Ohio, but excluding all office clerical em- ployees, guards, and supervisors as defined in the Act. BASIC WIRE PRODUCTS, 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, Federal Office Building, Room 3003, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.