Ulbrich of Illinois, Inc.

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ulbrich of Illinois, Inc. and United Steelworkers of America, AFL-CIO. Case 13-CA-20458 March 27, 1981 DECISION AND ORDER Upon a charge filed on October 8, 1980, by United Steelworkers of America, AFL-CIO, herein called the Union, and duly served on UI- brich of Illinois, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 13, issued a complaint on October 17, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. On November 3, 1980, the Acting Regional Director amended the complaint to allege that Respondent's conduct vio- lated Section 8(a)(5) as well as Section 8(a)(l). Copies of the charge and the 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 complaint alleges in substance that on July 8, 1980, following a Board election in Case 13-RC-15022, the Union was duly certified as the exclusive col- lective-bargaining representative of Respondent's employees in the unit found appropriate;1 and that, commencing on or about August 13, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On October 29, 1980, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint.2 On December 30, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 8, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent I Official notice is taken of the record in the representation proceed- ing, Case 13-RC-15022, as the term "record" is defined in Secs. 102.68 and 102.6 9(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosysems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 2 Respondent did not specifically deny the November 13, 1979. amend- ed complaint. However, since the amended complaint merely added the legal conclusion that Respondent's conduct violated Sec. 8(a)(5), we deem Respondent's denial of the allegations in the original complaint suf- ficient to constitute a denial of the 8(a)(5) allegation. 255 NLRB No. 48 thereafter filed a statement in opposition to the motion for summary judgment. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Respondent contends that the General Counsel's Motion for Summary Judgment should be denied on the ground that the Board erred in overruling certain of its objections to conduct affecting the election in Case 13-RC-15022. The General Coun- sel contends that Respondent is attempting to reliti- gate issues which were or could have been litigated in the underlying representation case. We agree with the General Counsel. The record herein, as well as that in Case 13- RC-15022, reveals that, in an election conducted pursuant to a Stipulation for Certification Upon Consent Election, of approximately 29 eligible voters, 15 cast ballots for, and 13 cast ballots against, the Union. Thereafter, Respondent filed timely objections to conduct affecting the election and the Regional Director ordered a hearing there- on. On March 12, 1980, the Hearing Officer issued a Hearing Officer's Report on Objections with Findings and Recommendations, recommending that Respondent's objections be overruled in their entirety. Thereafter, Respondent file exceptions to the Hearing Officer's report alleging, inter alia, that the Hearing Officer erroneously overruled certain ob- jections alleging that the Union interfered with election by distributing checks to union committee- men in front of other employees and by engaging in material misrepresentations in regard to an offer to debate Respondent's officials. On July 8, 1980, the Board issued a Decision and Certification of Representative in which it adopted the Hearing Of- ficer's findings and recommendations. On July 28, 1980, Respondent filed a motion for reconsider- ation which the Board denied on August 28, 1980. In both its answer to the complaint and its oppo- sition to the Motion for Summary Judgment, Re- spondent alleges that the Union interfered with the election by distributing checks to committeemen and by engaging in material misrepresentations. However, these matters were raised and fully con- sidered by the Board in the underlying representa- tion proceeding and were resolved adversely to Respondent. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled ULBRICH OF ILLINOIS, INC. 367 to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent, a Connecticut corporation, main- tains its office and principal place of business at 12340 South Laramie, Alsip, Illinois, and is en- gaged in the distribution of stainless steel products. During the last calendar year, or fiscal year, a rep- resentative period, Respondent, in the course and conduct of its business, shipped goods valued in excess of $50,000 from its Alsip, Illinois, facility to points outside the State of Illinois. We find, on the basis of the foregoing, that Re- spondent 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. 1I. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111I. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees, including drafts- men, plant clerical employees, and group lead- ers working at the Employer's facility at 12340 3 See Pittsburgh Plate Glass Co. v. V.L.R.B., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Sees. 102.67(f) and 102.6 9 (c) S. Laramie, Alsip, Illinois, but excluding all office clerical employees, management em- ployees, professional employees, guards and supervisors, as defined in the Act. 2. The certification On May 18, 1979, 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 bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on July 8, 1980, 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 August 11, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about August 13, 1980, and continu- ing at all times thereafter to date, 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 Respondent has, since August 13, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate 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 Respondent set forth in section 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 ob- structing commerce and the free flow of com- merce. 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 ULRICH OF ILLNOIS, INC. 367 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Ulbrich of Illinois, Inc., Alsip, Illinois, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including draftsmen, plant clerical employees, and group leaders work- ing at the Employer's facility at 12340 S. Laramie, Alsip, Illinois, but excluding all office clerical em- ployees, management employees, professional em- ployees, guards and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since July 8, 1980, 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 August 13, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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 Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Ulbrich of Illinois, 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 United Steelwork- ers of America, AFL-CIO, as the exclusive bar- gaining representative of its employees in the fol- lowing appropriate unit: All full-time and regular part-time production and maintenance employees, including drafts- men, plant clerical employees, and group lead- ers working at the Employer's facility at 12340 S. Laramie, Alsip, Illinois, but excluding all office clerical employees, management em- ployees, 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 ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Alsip, Illinois, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Di- rector for Region 13, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, 4 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." -------- ULBRICH OF ILLINOIS, INC. 369 in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 here- with. 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 United Steelworkers of America, AFL- CIO, as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time produc- tion and maintenance employees, including draftsmen, plant clerical employees, and group leaders working at the Employer's fa- cility at 12340 S. Laramie, Alsip, Illinois, but excluding all office clerical employees, man- agement employees, professional employees, guards and supervisors, as defined in the Act. ULBRICH OF ILLINOIS, INC. ULBRICH OF ILLINOIS INC. 369