Broyhill Co.

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Broyhill Company and District Lodge No. 162, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO. Case 17-CA-6108 December 6, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on June 12, 1974, by District Lodge No. 162, International Association of Machi- nists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Broyhill Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint on July 17, 1974, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 Administra- tive 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 17, 1974, fol- lowing a Board election in Case 17-RC-7166, the Un- ion was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about May 28, 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 30, 1974, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the allega- tions in the complaint. On September 16, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 23, 1974, 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 thereafter filed a response to Notice To Show Cause. I Official notice is taken of the record in the representation proceeding, Case 17-RC-7166, 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., 1957); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 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 response to the Notice To Show Cause, Respondent raises three con- tentions in opposition to the Motion for Summary Judgment. Respondent argues that the Regional Direc- tor, with Board approval, erred in allowing the election in the underlying representation proceeding to be con- ducted during Respondent's slack season, even though he had found Respondent's business to be seasonal in nature and had included seasonal employees in the unit. In this regard, Respondent also asserts that it is incumbent on the Board to explain its basis for con- cluding that the Regional Director did not err in his scheduling of the election during the slack season. Sec- ondly, Respondent argues that it was denied due proc- ess by the Union being allowed to relitigate the status of an employee at the consolidated representation and unfair labor practice hearing, when the Union had not submitted evidence on this issue at the representation hearing. Lastly, Respondent argues that it was denied due process and contends that the Regional Director abused his discretion by commingling challenged bal- lots, opened by direction of the Board after the hearing, while the Board's decision holding that two employees were discriminatorily discharged and thus eligible to vote, was pending review in the United States court of appeals. With regard to Respondent's first and second con- tentions, our review of the representation case record, and of the unfair labor practice proceeding con- solidated therewith, indicates that these issues were fully litigated therein. Respondent raised and litigated these contentions either before the Regional Director in the representation proceeding, or in its exceptions to the Board of the Regional Director's order clarifying and amending the decision and direction of election, and before the Administrative Law Judge, and there- after to the Board.' Respondent offers no newly dis- covered or previously unavailable evidence in support of these contentions in this proceeding, but rather dis- putes the Board's determinations thereon by alluding to preexisting evidence which was before the Board in the previous proceedings. In its decision the Board in- dicated that there was no factual basis for Respondent's contentions that the election scheduling was inappro- priate. Accordingly, under well settled rules prohibit- 2 Broyhill Company, 210 NLRB 288 (1974). 215 NLRB No. 69 BROYHILL COMPANY ing relitigation of issues in an unfair labor practice proceeding which were considered in a preceding re- presentation proceeding, Respondent may not reliti- gage these issues herein.' With regard to Respondent's contention that the Re- gional Director abused his discretion and denied Re- spondent due process by commingling the challenged ballots even though the Board's decision concerning two employees whose ballots were challenged was pending appellate court review, we find no merit in this contention. In our opinion there was no abuse of discre- tion. In any case as the revised tally of ballots shows the Union prevailing in the election by a vote of 25 to 22, the reduction of the Union's margin of victory by the two ballots, even should Respondent's appeal be suc- cessful, nevertheless leaves the Union prevailing in the election. Accordingly, we shall grant the General Counsel's Motion for Summary Judgment." On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Broyhill Company, Respondent herein, a Nebraska corporation, is engaged in the manufacture and distri- bution of agricultural, industrial, and turf equipment at its facility in Dakota City, Nebraska. In the course and conduct of its business, Respondent annually purchases materials valued in excess of $50,000 directly from sources outside the State of Nebraska. 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 District Lodge No. 162, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 See Pittsburgh Plate Glass Co. v NL.R.B., 313 U S 146, 162 (1941), Rules and Regulations of the Board, Sec 102 67(1) and 102 69(c) 4 In view of our determination herein, we find it unnecessary to rule on the General Counsel's motion to strike III THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 373 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 full-time and regular part-time production and maintenance employees of the Broyhill Com- pany at its Dakota City, Nebraska, plant including shipping and receiving employees, parts em- ployees, plant clericals, draftsmen, printing de- partment employees, seasonal employees, truck- drivers, and leadmen, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On August 16, 1973, 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 17, designated the Union as their represent- ative 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 17, 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 28, 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 May 28, 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 May 28, 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. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Broyhill Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge No. 162, International Association of Machinists and Aerospace Workers, AFL-CIO, 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 the Broyhill Company at its Dakota City, Nebraska, plant including shipping and receiving employees, parts employees , plant clericals, draftsmen, printing department employees, seasonal employees, truckdrivers, and leadmen , but excluding office clerical employees, 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 May 17, 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 May 28, 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 Broyhill Com- pany, Dakota City, Nebraska, 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 District Lodge No. 162, Interna- tional Association of Machinists and Aerospace Work- ers, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees of the Broyhill Com- pany at its Dakota City, Nebraska , plant including shipping and receiving employees, parts em- ployees, plant clericals , draftsmen, printing de- partment employees, seasonal employees, truck- drivers, and leadmen, but excluding officer office employees, professional 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: BROYHILL COMPANY 375 (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 conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its Dakota City, Nebraska, plant copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 17, 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 conspicuous 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 al- tered, 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. 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 District Lodge No . 162, International Association of Ma- chinists and Aerospace Workers , 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 full-time and regular part-time production and maintenance employees of the Broyhill Company at its Dakota City, Nebraska, plant including shipping and receiving employees, parts employees, plant clericals, draftsmen, printing department employees, seasonal em- ployees, truckdrivers, and leadmen, but exclud- ing office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. BROYHILL COMPANY