Robbins & Myers, Inc.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robbins & Myers, Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 9-CA-10296 October 21, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on May 5, 1976, by United Steelworkers of America, AFL-CIO-CLC, herein called the Union, and duly served on Robbins & Myers, Inc., herein called the Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a com- plaint and notice of hearing on June 3, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National La- bor 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 com- plaint alleges in substance that on April 6, 1976, fol- lowing a Board election in Case 9-RC-10403, 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 April 27, 1976, and at all times there- after, 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 9, 1976, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On June 14, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and a memorandum in support thereof, with exhibits attached. Subsequently, , on June 28, 1976, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a memorandum in opposition to the Gen- eral Counsel's Motion for Summary Judgment. 'Official notice is taken of the record in the representation proceeding, Case 9-RC-10403, as the term "record" is defined in Secs. 102 68 and 102 69(g) of the Board's Rules and Regulations , Series 8, as amended See LTVElectrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), 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 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA, as amended Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 memoran- dum in opposition to the General Counsel's Motion for Summary Judgment which was filed in response to the Notice To Show Cause, Respondent contends, inter alia, that the second, rerun election of Novem- ber 27, 1974, was a valid and proper one and should have not been set aside, and that the third rerun elec- tion of September 25, 1976, was improperly conduct- ed and therefore was not a valid basis for the Board's certification of April 6, 1976. The General Counsel contends that the Respondent, is raising issues which were or could have been raised in the representation proceeding and is precluded ,from relitigating them herein. We agree with the Geperal Counsel. Our review of the record shows that the original election in this matter, which; was held on February 21, 1974, pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director on January 23, 1974, resulted in the Union receiving 241 votes, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (herein called UAW), re- ceiving 6 votes, and 153 votes being cast against the participating labor organizations. There were no void or challenged ballots. On February 27, 1974, Respon- dent filed timely objection to conduct affecting the result of the election. On April 18, 1974, the Regional Director issued his Report on Objections to the Elec- tion and Recommendations to the Board, in which he recommended that the R''espondent's objections be overruled in their entirety. Thereafter, the Re- spondent filed timely exceptions to the Regional Director's report. On July 25,11974, the Board issued its Decision and Order Directing Hearing, in which it, inter alia, directed that a hearing be held with re- spect to part of the Respondent's objections. Pur- suant thereto, a hearing was held before Hearing Of- ficer James R. Schwartz who, on October 10, 1974, issued his report and Recommendations on Objec- tions to Election, in which he recommended that Re- spondent's Objection 1 be sustained and that a sec- ond election be directed. On October 29, 1974, the Board, in the absence of exceptions, issued its Sup- plemental Decision, Order, and Direction of Second Election in which it adopted the Hearing Officer's recommendations and ordered that a second election 226 NLRB No. 86 ROBBINS & MYERS, INC. be conducted. Pursuant thereto, a second election was conducted on November 27, 1974, which result- ed in 198 votes being cast in favor of the Union and 215 votes =being cast against the Union. The UAW requested that its name be removed from the ballot and its request was granted. There were no void or challenged ballots. Thereafter, on December 3, 1974, the Union filed timely objections to conduct affect- ing the results of second election. On March 5, 1975, the Regional Director issued his Report on Objec- tions to Second Election and Recommendations to the Board, in which he, inter alia, sustained certain of the Union's objections and recommended that a new election be directed. On March 14, 1975, the Respon- dent filed timely exceptions to the Regional Director's report. Thereafter, on June 20, 1975, the Board issued its Second Supplemental Decision and Direction of Third Election, in which it, inter alia, adopted in part the Regional Director's findings and recommendations with regard to the objections and directed a third election. On September 25, 1975, a third election was conducted among the employees in the appropriate unit described in the complaint. The tally of ballots showed that 68 votes were cast for, and 56 against the Union, with i ballot chal- lenged. Thereafter, Respondent filed timely objec- tions to the conduct of the third election. On January 28, 1976, the Regional Director issued his Report on Objections to Third Election and Recommendations to the Board, in which he recommended that Re- spondent's objections be overruled in their entirety and that the Union be certified as the exclusive bar- gaining representative for the employees in the ap- propriate unit described in the complaint. On Febru- ary 9, 1976, Respondent filed a request for review of the Regional Director's report. Thereafter, on April 6, 1976, the Board issued its Decision and Certifica- tion of Representative, in which it adopted the Re- gional Director's findings and recommendations and certified the Union as the exclusive collective-bar- gaining representative for the employees in the unit described in the complaint. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation, proceeding.2 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to' adduce at a hearing any newly discov- 2 See Pittsburgh Plate Glass Co v NLRB, 313 U.S. 146, 162 (1941), Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c). 545 ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the' de- cision 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 an Ohio corporation engaged in the manufacture and sale of electric motors at Gallipolis, Ohio. During the past 12 months, which is a repre- sentative period, Respondent purchased and caused to be shipped goods valued in excess of $50,000, in interstate commerce, directly from points outside the State of Ohio to its Gallipolis, Ohio, location. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its Bob McCormick Road, Gallipolis, Ohio, location who were em- ployed during the payroll period ending January 20, 1974, but excluding all office clerical em- ployees, technical employees, technicians, pro- fessional employees, guards and supervisors as defined in the Act. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The certification On September 25, 1975, a majority of-the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 9, 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 April 6, 1976, 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 April 14, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about April 27, 1976, 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 April 27, 1976, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 the Respondent, set forth in sec- tion III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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); Bur- nett 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. Robbins & Myers, Inc., 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- CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Employer at its Bob McCormick Road, Gallipolis, Ohio, location who were employed during the payroll period ending January 20, 1974, but excluding all office clerical employees, technical employees, technicians, professional employees, guards and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 6, 1976, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 27, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair ROBBINS & MYERS, INC. 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 Re- lations Board hereby orders that Respondent, Rob- bins & Myers, Inc., Gallipolis, 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 con- ditions of employment with United Steelworkers of America, AFL-CIO-CLC, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by the Employer at its Bob McCormick Road, Gallipolis, Ohio, location who were em- ployed during the payroll period ending January 20, 1974, but excluding all office clerical em- ployees, technical employees, technicians, pro- fessional 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 Bob McCormick Road, Gallipolis, Ohio, location, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms pro- vided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily 547 posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, 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. 3In 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 " 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 Unit- ed Steelworkers of America, 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by the Employer at its Bob McCor- mick Road, Gallipolis, Ohio, location who were employed during the payroll period end- ing January 20, 1974, but excluding all office clerical employees, technical employees, tech- nicians, professional employees, guards and supervisors as defined in the Act. ROBBINS & MYERS, INC.