Lloyd A. Fry Roofing Co.

LLOYD A. FRY ROOFING COMPANY 245 Lloyd A. Fry Roofing Company and Service Employ- ees International Union, Local 579, AFL-CIO. Case 10-CA-10882 January 20, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on August 26, 1974, by Service Employees International Union, Local 579, AFL- CIO, herein called the Union, and duly served on Lloyd A. Fry Roofing Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint on September 12, 1974, 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 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 July 29, 1974, following a Board election in Case 10-RC-9755, 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 August 19, 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 and to provide the Union with pertinent information al- though the Union has requested and is requesting it to do so. On October 2, 1974, Respondent filed its answer to 'the complaint admitting in part, and denying in part, the allegations in the complaint. On October 22, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 6, 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, entitled "Answer 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 response to the Notice To Show Cause, Respondent admits the factual allegations of the complaint, but contests the Union's certification and status as exclusive repre- sentative of the employees in the bargaining unit on the basis that its objections to the election in the underlying representation proceeding were errone- ously overruled. The General Counsel contends, in effect, that inasmuch as the issues raised by Re- spondent's objections to the election were fully litigated in the representation proceeding, they may not be relitigated in the instant unfair labor practice proceeding. In view of the General Counsel's contention, we have reviewed the record in the representation proceeding, Case 10-RC-9755. It reveals that follow- ing the Union's victory in the election conducted on October 25, 1973, pursuant to a Stipulation for Certification Upon Consent Election, Respondent filed objections to the election alleging, in substance, that the Union, by its agent who was also an employee of Respondent, had (1) advised a foreman in the presence of employees of potential strikes and production slowdowns if the Union did not get what it desired, (2) groundlessly challenged voters in the election, and (3) injected an element of racial animosity in the election by informing employees and the plant manager that an allegedly known black activist would create racial turmoil in the plant if the Union did not get what it wanted. On January 25, 1974, the Regional Director issued his Report on Objections, recommending that Objection 2 be overruled, finding additional potentially objectiona- ble conduct in the form of the Union's attempting to coerce employees into a favorable vote by threats, which he labeled Objection 4, and found that Objections 1, 3, and the additional Objection 4 raised issues warranting a hearing, and recommended accordingly. There being no exceptions to this report, the Board adopted his recommendations and ordered that a hearing be held on Respondent's Objections 1 and 3 and the additional Objection 4. Following a hearing at which all parties appeared and presented evidence, the Hearing Officer issued a Report and Recommendations on Objections, finding no merit in the objections and recommending that they be 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 l0-RC-9755, 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(1) 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. 48 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overruled and the Union certified. Respondent excepted to this report, essentially attacking credibili- ty and evidentiary determinations made by the Hearing Officer. On July 29, 1974, the Board issued a Decision and Certification of Representative, adopt- ing the findings and recommendations of the Hearing Officer and certifying the Union. From the foregoing review, it appears that the General Counsel's contention that Respondent is attempting to relitigate in this proceeding issues it raised and litigated in the representation proceeding is well founded. 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 II. THE LABOR ORGANIZATION INVOLVED Service Employees International Union, Local 579, AFL-CIO, is a labor organization within the mean- ing 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 including truckdrivers, warehousemen, and me- chanics employed by the Employer at its Atlanta, Georgia, plant, but excluding all office clerical employees, technical employees, professional employees, salesmen, shipping clerks, managerial personnel, watchmen, guards, and supervisors as defined in the Act. 2. The certification On October 25, 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 10, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargain- ing representative of the employees in said unit on July 29, 1974, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. I. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation with an office and plant located in Atlanta, Georgia, is engaged in the manufacture and distribution of roofing prod- ucts. During the past calendar year, a representative period of all times material herein, Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. 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. B. The Request To Bargain and Respondent's Refusal Commencing on or about July 31, 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, and to provide pertinent information regarding the names, home addresses, telephone numbers, rates of pay, classifications, and hiring dates of unit employees. Commencing on or about August 19, 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 representative for collective bargaining of 2 See Pittsburgh Plate Glass Co. v. N. L.R. B., 313 U .S. 146, 162 ( 1941); Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). LLOYD A. FRY ROOFING COMPANY 247 all employees in said unit, and to provide the information requested by the Union. Accordingly, we find that the Respondent has, since August 19, 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 provide the Union with-the pertinent information requested and, if an under- standing 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 (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. Lloyd A. Fry Roofing Company is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 579, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including truckdrivers, warehousemen, and mechan- ics employed by the Employer at its Atlanta, Georgia, plant, but excluding all office clerical employees, technical employees, professional em- ployees, salesmen, shipping clerks, managerial per- sonnel, watchmen, guards, and supervisors as de- fined 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 July 29, 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 August 19, 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, and to supply the pertinent information requested by the Union, 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 and to supply pertinent information upon request, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed 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, Lloyd A. Fry Roofing Company, Atlanta, Georgia, 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 Service Employees International Union, Local 579, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including truckdrivers, warehousemen, and me- 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chanics employed by the Employer at its Atlanta, Georgia, plant, but excluding all office clerical employees, technical employees, professional employees, salesmen, shipping clerks, managerial personnel, watchmen, guards, and supervisors as defined in the Act. (b) Refusing to provide Service Employees Interna- tional Union, Local 579, AFL-CIO, with pertinent information regarding names, home addresses, tele- phone numbers, rates of pay, classifications, and hiring dates of unit employees. (c) 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 Atlanta, Georgia, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 10, 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 10, 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 Service Employees International Union, Local 579, 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 provide Service Employees Interna- tional Union, Local 579, AFL-CIO, with perti- nent information regarding names, home address- es, telephone numbers, rates of pay, classifica- tions, and hiring dates of unit employees. 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, including truckdrivers, warehousemen, and mechanics employed by the Employer at its Atlanta, Georgia, plant, but excluding all office clerical employees, technical em- ployees, professional employees, salesmen, shipping clerks, managerial personnel, watchmen, guards, and supervisors as de- fined in the Act. 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 " LLOYD A. FRY ROOFING COMPANY (Employer)