P.A.F. Equipment Co., Inc.

P.A.F. EQUIPMENT CO., INC. 271 P.A.F. Equipment Co., Inc. and United Steelworkers Union, AFL-CIO-CLC. Case 17-CA-6157 January 23, 1975 DECISION AND ORDER By ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on July 24, 1974, by United Steelworkers Union, AFL-CIO-CLC, herein called the Union, and duly served on P.A.F. Equipment Co., Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 17, issued a complaint on August 22, 1974, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commer- ce 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 13, 1974, following a Board election in Case 17-RC-7279, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;1 and that, commenc- ing on or about May 31, 1974, 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 September 3, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 23, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 1, 1974, 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. Re- spondent 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 response to the Notice To Show Cause, Respondent admits the factual allegations of the complaint, but contends that it is not obligated to bargain with the certified Union because the Regional Director erred in processing the Union's petition in the underlying representation case, despite the alleged supervisory participation in the Union's organizing campaign, and because it has been denied a hearing on the issue of supervisory participation which it also raised in its objections to the election . The General Counsel contends that Respondent is attempting to relitigate matters heard and determined in the representation proceeding. We agree with the General Counsel. Our review of the record herein, including the record in Case 17-RC-7279, indicates that 1 day before the hearing in the representation case Re- spondent filed a motion to dismiss the petition on the ground that four of its five foremen had secured, or otherwise contributed to, the acquisition of union authorization or membership cards used by the Union as a showing of interest to support its petition. After an administrative investigation, the Regional Director, in his Decision and Direction of Election, denied the motion, finding that, after eliminating cards involving supervisory solicitation , the showing of interest was sufficient. Respondent requested review of the Regional Director's Decision and Direction of Election, reiterating its contention of supervisory participation in securing cards. In a telegraphic communication of January 21, 1974, the Board denied the request for review as raising no substantial issues warranting review. In the election conducted pursuant to the Regional Director's Decision and Direction of Election, the vote was 83 to 40 in favor of the Union, with 5 ballots challenged. Respondent filed timely objections to conduct affecting the results of the election . The first objection again raised the issue of supervisory participation in organizational activity, and the second alleged that the Union had misrepresented the amount of its dues and had promised to waive initiation fees for employees who joined the Union before the election. After an investigation, the Regional Director, on March 28, 1974, issued a Supplemental Decision on Objections and Order Directing Hearing on Certain Objection, in which he overruled Respondent's first objection relating to I Official notice is taken of the record in the representation proceeding, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 Case 17-RC-7279, as the term "record" is defined in Secs . 102.68 and (C.A. 5, 1969); Intertype Co v. Penello, 269 F.Supp. 573 (D.C. Va., 1957); 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 9(d) of the NLRA. 216 NLRB No. 36 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory participation and denied a hearing thereon because there were no substantial or material issues of fact or law warranting a hearing. However, he directed a hearing on the second objection. Respondent requested review of said Supplemental Decision insofar as it related to the Regional Director's disposition of its first objection and affirmatively requested a hearing thereon. In a telegraphic communication of April 22, 1974, the Board denied Respondent's request for review of the Regional Director's Supplemental Decision on the ground that it raised no substantial issues warranting review. Respondent, on May 6, 1974, filed with the Regional Director a motion to withdraw Objection 2 on the basis that its resolution would not decide the basic question of whether the petition should have been processed in the first place. In a Second Supplemental Decision on Objections and Certifica- tion of Representative issued May 13, 1974, the Regional Director approved Respondent's motion and permitted withdrawal of its second objection and ruled that since all objections were thus either overruled or withdrawn he would certify the Union, which he did. Respondent thereupon filed a request for review of the Second Supplemental Decision on Objections and Certification of Representative in which it again raised the issue of supervisory participation in the election process, the subject of its first objection, and requested a hearing thereon. In a telegraphic communication of June 17, 1974, review was denied as raising no substantial issue warranting review. It thus appears that the issues raised by Respondent in this proceeding have been litigated in a hearing before the Regional Director and have been determined by the Board on three occasions. 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. 2 See Pittsburgh Plate Glass Co v. NLR.B., 313 U.S. 146, 162 (1941); On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a corporation engaged in the pro- duction of handtools at its facility in Hiawatha, Kansas, annually sells goods and services 'valued in excess of $50,000 directly to firms and enterprises located outside the State of Kansas . It also sells annually goods and services valued in excess of $50,000 directly to firms and enterprises within the State of Kansas which, in turn, annually sell goods and services valued in excess of $50,000 directly to firms or enterprises located outside the State of Kansas. 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 Union , AFL-CIO-CLC, 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 production and maintenance employees of P.A.F. Equipment Co., Inc., at its Hiawatha, Kansas, plant, includ- ing janitors-watchmen, but excluding office cleri- cal employees, foremen, professional employees, guards and other supervisors as defined in the Act. 2. The certification On February 15, 1974, 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 17, designated the Union as their representative for the purpose of collective-bargain- ing with the Respondent. The Union was certified as Rules and Regulations of the Board , Sam. 102.67(f) and 102.69(c). P.A.F. EQUIPMENT CO., INC. the collective-bargaining representative of the em- ployees in said unit on May 13, 1974, 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 May 24, 1974, 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 31, 1974, 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 31, 1974, 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, Respond- ent 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 commer- ce. 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- 273 ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), 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. P.A.F. Equipment Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees of P.A.F. Equipment Co., Inc., at its Hiawatha, Kansas, plant, including janitors-watchmen, but excluding office clerical employees, foremen, professional employees, guards and other 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 13, 1974, 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 31, 1974, 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, Respond- ent 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, P.A.F. Equipment Co., Inc., Hiawatha, Kansas, its officers, agents, successors, and assigns, shall: 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Union, AFL-CIO-CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part -time production and maintenance employees of P.A.F. Equipment Co., Inc., at its Hiawatha, Kansas, plant, includ- ing janitors-watchmen, but excluding office cleri- cal employees, foremen, professional employees, guards and other 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 in Hiawatha, Kansas, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 17, 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 17, 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 Union, AFL-CIO-CLC, 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 pro- duction and maintenance employees of P.A.F. Equipment Co., Inc., at its Hiawatha, Kansas, plant, including janitors-watchmen, but excluding office clerical employees, foremen, professional employees, guards and other supervisors as defined in the Act. P.A.F. EQUIPMENT CO., INC. 3 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 "