Oxequip Health Industries, Inc.

OXEQUIP HEALTH INDUSTRIES, INC. 677 Oxequip Health Industries, Inc. andLocal 73, General Service Employees Union, S.E.I.U., AFL-CIO. Case 13-CA-15589 December 30, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on June 30,1976, by Local 73, General Service Employees Union, S.E.I.U., AFL- CIO, herein called the Union, and duly served on Oxequip Health Industries, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 13, issued a complaint and notice of hearing on July 30, 1976, 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 June 9, 1976, following a Board election in Case 13-RC-13981, 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 June 16, 1976, 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 August 9, 197.6, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 17, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and on September 27, 1976, the Respondent "filed an opposition to said motion. Subsequently, on September 30, 1976, 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 entitled "Motion in Opposi- tion to and Showing Cause why General Counsel's 1 Official notice is taken of the record in the representation proceeding, Case 13-RC-13981, 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 LTV Electrosystems, 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); 227 NLRB No. 110 Motion for Summary Judgment should not be Granted." 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, the Respondent attacks the validity of the Union's certification because the Union's alleged objectionable conduct precluded the holding of a fair election. Counsel for the General Counsel contends that the Respondent is attempting to relitigate issues which were raised and determined in the underlying representation case and this it may not do. We agree with the General Counsel. Review of the record herein, including that in Case 13-RC-13981, shows that, in_the election conducted pursuant to a Stipulation for Certification Upon Consent Election,2 there were approximately 45 eligible voters of whom 23 voted for the Union, none voted for the Intervenor, and 20 voted against the participating labor organizations. There were no challenged ballots. The Respondent filed timely objections alleging, in substance, that (1) one or more of the participating unions had circulated an exact copy of the official Board ballot with an "X" inserted in the union's box for the purpose of giving the , impression that the Board desired the employees to cast their votes for one of the participating labor organizations; and (2) by this and other conduct, the unions had interfered with the election. After investi- gation, the Regional Director issued, on May 13, 1976, his report on objections in which he recom- mended that the Respondent's objections be over- ruled and the Union certified. As to Objection 1, the Regional Director found that, since the sample ballot was marked in the Intervenor's box and was distrib- uted by the Intervenor, and not by the successful Union, this distribution by the Intervenor did' not interfere with the election under the precedent of Vernon Convalescent Center Company, 194 NLRB 439 (1971), where the Board distinguished its decision in Allied Electric Products, Inc., 109 NLRB 1270 (1954), on which the Respondent relied. As to Objection 2, the Respondent submitted no evidence in support thereof. The Respondent failed to file exceptions to Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7,1968); Sec. 9(d) of the NLRA, as amended. 2 Oil, Chemical and Atomic Workers International Union, AFL-CIO- CLC, herein called the Intervenor, also executed the stipulation and appeared on the ballot. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director's report. Accordingly, the Board on June 9, 1976, issued its Decision and Certification of Representative in which it overruled the Respondent's objections and certified the Union (not reported in volumes of Board decisions). 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.3 All issues raised by the Respondent in this proceed- ing 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 III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees including plant clerical employees, but excluding all office clerical employees, professional employ- ees, technical employees, managerial employees, guards, and supervisors as defined in the Act. 2. The certification On April 15, 1976, 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 13, 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 June 9, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. Respondent, an Illinois corporation, has main- tained an office and place of business at 12601 South Springfield, Alsip, Illinois, where it is engaged in the manufacture of health industry supplies. During the past - calendar or fiscal year, Respondent, from its facility, shipped goods valued in excess of $50,000 directly to enterprises located outside the State of Illinois. During that same period, Respondent, at its facility, received goods valued in excess of $50,000 directly from enterprises Jocated outside the State of Illinois. 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 Local 73, General Service Employees Union, S.E.I.U., AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 See Pittsburgh Plate Glass Co v. N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4 Respondent's answer to the complaint admits that the Union has claimed and does claim to represent the unit employees but is not certain of B. The Request To Bargain and Respondent's Refusal -Commencing on or about June 16, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees - in the above-described unit .4 Com- mencing on or about June 16, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 16, 1976, 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. the date. As the Respondent's answer also admits that it refused to bargain on or about June 16, 1976, we find the request to bargain to have been made on or about June 16, 1976. OXEQUIP HEALTH INDUSTRIES, INC. 679 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 commerce. 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 (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. Oxequip Health Industries, Inc., is an employer engaged in commerce within 'the meaning of Section 2(6) and (7) of the Act. 2. Local 73, General Service Employees Union, S.E.I.U., AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees including plant clerical employees, but excluding all office clerical employees, professional employees, technical employees, managerial employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since June 9, 1976, 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 June 16, 1976, 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, 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 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 the Respondent, Oxequip Health Industries, Inc., Alsip, Illinois, 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 Local 73, General Service Employees Union, S.E.I.U., AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees including plant clerical employees, but excluding all office clerical employees, professional employ- ees, technical employees, managerial 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. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its Alsip, Illinois, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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." 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 Local 73, General Service Employees Union, S.E.I.U., 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 representative 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 agreement. The bar- gaining unit is: All production and maintenance employ- ees including plant clerical employees, but excluding all office clerical employees, pro- fessional employees, technical employees, managerial employees, guards, and supervi- sors as defined in the Act. OXEQUIP HEALTH INDUSTRIES, INC.