B. D. Holt Co.

B. D. HOLT COMPANY B. D. Holt Company and International Union of Op- erating Engineers, Local 450, AFL-CIO. Case 23-CA-5168 December 5, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY AND PENELLO Upon a charge filed on July 2, 1974, by International Union of Operating Engineers, Local 450, AFL-CIO, herein called the Union, and duly served on B. D. Holt Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on July 17, 1974, against Respondent, al- leging that Respondent had engaged in and was engag- ing 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 com- plaint alleges in substance that on May 29, 1974, fol- lowing a Board election in Case 23-RC-4037 the Union was duly certified as the exclusive col- lective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about July 2, 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 July 29, 1974, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the allega- tions in the complaint. On August 9, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and an amendment thereto on August 27, 1974. Subsequently, on September 6, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the r'veneral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled "Respondent's Oppo- sition to the General Counsel's Motion to the Board for Official notice is taken of the record in the representation proceeding, Case 23-RC-4037, 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 (CA. 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va, 1957), Follett Corp., 164 NLRB 378 (1967), enfd 397 F2d 91 (CA 7, 1968), Sec 9(d) of the NLRA 311 Summary Judgment and a Motion to Include Addi- tional Evidence in the Record." 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 its opposition to the General Counsel's Motion for Summary Judgment, Respondent contends that it has not refused to bargain in violation of Section 8(a)(5) and (1) because the Board's certification was invalid and because it did not unequivocally refuse to bargain. The General Counsel contends that Respondent has either admitted the alle- gations of the complaint or raised issues which it previ- ously presented in its objections to the election. We agree with the General Counsel. Our review of the record herein, including the record in Case 23-RC-4037, discloses that in an election con- ducted on January 9, 1974, pursuant to a Stipulation for Certification Upon Consent Election, the Union won by a vote of 47 to 29, with 5 ballots challenged. Respondent filed timely objections to conduct affecting the results of the election in which it alleged, in sub- stance, that the Union misled unit employees with as- surances that, in the event of a union victory, they would be assigned to a sublocal of the petitioning local in which the dues and initiation fee would be substan- tially lower than those of the parent local and that the Union threatened employees in order to secure authori- zation cards. After an investigation, the Regional Di- rector, on March 12, 1974, issued a Report and Recom- mendations on Election in which he recommended that the objections be overruled in their entirety and that the Union be certified. Respondent filed timely exceptions to the Regional Director's report, together with a sup- porting brief, in which it substantially reiterated its election objections and requested an adversary hearing on its objections. On May 29, 1974, the Board issued a Decision and Certification of Representative in which it adopted the findings, conclusions, and recommendations of the Re- gional Director, overruled Respondent's objections to the election, and certified the Union as the exclusive bargaining representative of the employees in the stipu- lated appropriate unit.' 2 On September 23, 1974, Respondent, for the sake of accuracy, moved the Board to augment the record by directing the General Counsel to make available to us the original affidavits of employees which were submitted to the Regional Director in connection with his investigation of Respondent's objections in the underlying representation proceeding Absent any dispute by the Regional Director as to the accuracy of these affidavits, copies of 215 NLRB No. 49 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' . All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior re- presentation 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 prop- erly 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: 111. 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 pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding shipping, receiving and warehouse em- ployees, parts countermen, draftsmen and janitors employed at the Employer's Corpus Christi, Texas and. Aransas Pass, Texas facilities excluding all other employees, including office clerical em- ployees, professional employees, salesmen, guards, 'watchmen, and supervisors as defined in the Act. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT . Respondent, a Texas corporation with its principal office and place of business in Corpus Christi, Texas, where it is engaged in the business of selling and servic- ing Caterpillar products, sold, during the preceding 12 months, products and services valued in excess of $50,000 directly to customers located outside the State of Texas. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 450, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. which were attached to the Respondent's motion papers and are a part of the record before us, the motion is denied. 3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4 The Respondent denies that it has refused to bargain, asserting that it has met with the Union and has suggested another meeting at which the charter of Local Union No. 450B should be produced prior to bargaining. We agree with the General Counsel that the Respondent cannot avoid its bargaining obligation by the interposition, as a precondition to bargaining, of a requirement that the charter of Local No. 450B be produced, especially since the issue concerning the existence of Local No. 450B had been raised and determined in the underlying representation case. See Canton Sign Co., 174 NLRB 906, 909 (1969). Accordingly, we find that the Respondent's denial of a refusal to bargain raises no issue litigable herein. 2. The certification On January 9, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 23 designated the Union as their representa- tive for the purpose of collective bargaining with the Respondent. The Union was certified as the collective- bargaining representative of the employees in said unit on May 29, 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 June 6, 1974, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about July 2, 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 all employees in said unit. Accordingly, we find that the Respondent has, since July 2, 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, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. B. D. HOLT COMPANY 313 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 operations de- scribed 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, bar- gain collectively with the Union as the exclusive re- presentative of all employees in the appropriate unit, and, if an understanding is reached, embody such un- derstanding in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com- merce 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 Com- pany, 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. B. D. Holt Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Lo- cal 450, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding shipping, receiving, and warehouse employees, parts countermen, draftsmen, and janitors employed at the Employer's Corpus Christi, Texas, and Aransas Pass, Texas, facilities, excluding all other employees, including office clerical employees, professional em- ployees, salesmen, guards, watchmen, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since May 29, 1974, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 2, 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, Respondent has interfered with, restrained, and coerced, and is in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, B. D. Holt Company, Corpus Christi and Aransas Pass, Texas, 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 International Union of Operating Engineers, Local 450, AFL-CIO, as the exclusive bar- gaining representative of its employees in the following appropriate unit: All production and maintenance employees, in- cluding shipping, receiving and warehouse em- ployees, parts countermen, draftsmen and janitors employed at the Employer's Corpus Christi, Texas and Aransas Pass, Texas facilities excluding ail other employees, including office clerical em- ployees, professional employees, salesmen, guards, watchmen, 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its facilities at Corpus Christi and Aransas Pass, Texas, copies of the attached notice marked "Appendix."' Copies of said notice, on forms prov- ided by the Regional Director for Region 23, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Operating Engineers, Local 450, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere 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 under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees, including shipping, receiving and warehouse employees, parts countermen, draftsmen, and janitors employed at the Employer's Corpus Christi, Texas and Aransas Pass, Texas facilities excluding all other employees, including office clerical employees, professional employees, salesmen, guards, watchmen, and supervisors as defined in the Act. B. D. HOLT COMPANY