G. F. Business Equipment, Inc.

262 B. F. BUSINESS EQUIPMENT, INC. G. F. Business Equipment, Inc. and United Rubber, Cork, Linoleum and Plastic Workers of Amer- ica, AFL-CIO. Case 11-CA-9547 June 1, 1981 DECISION AND ORDER Upon a charge filed on November 21, 1980, by United Rubber, Cork, Linoleum and Plastic Work- ers of America, AFL-CIO, herein called the Union, and duly served on G. F. Business Equip- ment, Inc., herein called Respondentor Employer, the General Counsel of the National Labor Rela- tions Board, by the Acting Regional Director for Region 11, issued a complaint and notice of hearing on December 5, 1980, against Respondent, alleging that Respondent had engaged in and was engaging 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 17, 1980, following a Board election in Case 11-RC- 4701, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about October 29, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On December 17, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On January 30, 1981, counsel for the General Counsel filed directly with the Board a motion to strike portions of Respondent's answer to the com- plaint and a Motion for Summary Judgment. Sub- sequently, on February 5, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's motion to strike portions of Respondent's answer to the complaint and the Motion for Sum- mary Judgment should not be granted. Respondent I Official notice is taken of the record in the representation proceed- ing, Case l-RC-4701, 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 (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. 256 NLRB No. 40 thereafter filed a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion To Strike Portions of Respondent's Answer to the Complaint and on the Motion for Summary Judgment In its answer Respondent admits all the allega- tions of the complaint except for the allegation that the Union timely filed objections to conduct affect- ing the results of the election, the allegation that the Union is the collective-bargaining representa- tive of its employees, and the allegation that its re- fusal to bargain with the Union violated the Act. With respect to the motion to strike portions of Respondent's answer, the General Counsel con- tends the denials in the answer constitute false and sham pleadings. While, for the reasons stated below, we find that Respondent's answer to the complaint, as supplemented by its reply to the Gen- eral Counsel's motions, does not present a meritori- ous defense to the allegations of the complaint, we do not believe that those denials should be stricken in that they could be viewed as an attempt by Re- spondent to preserve a position, albeit, in our view, an erroneous one. See, e.g., The Johnson & Hardin Company, 221 NLRB 379 (1975). Accordingly, we deny the General Counsel's motion to strike por- tions of Respondent's answer to the complaint. 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 to relitigate issues which were or could have been litigated in a prior representation proceeding. 2 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: 2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 262 B. F. BUSINESS EQUIPMENT, INC. G. F. BUSINESS EQUIPMENT, INC. 263 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times ma- terial herein, an Ohio corporation with a plant lo- cated in Forest City, North Carolina, where it is engaged in the manufacture of plastic and metal business equipment. During the past 12 months, a representative period, Respondent shipped from its Forest City, North Carolina, facility directly to points outside the State of North Carolina goods and materials valued in excess of $50,000. During that same period Respondent received at its Forest City, North Carolina, facility directly from points outside the State of North Carolina goods and raw materials valued in excess of $50,000. 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. II. THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organi- zation 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 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, and all plant clerical employees, employed by the Employer at the Forest City, North Caro- lina, plant; excluding all office clerical employ- ees, professional employees, guards and super- visors as defined in the Act. 2. The certification On June 21, 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 11, 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 October 17, 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 October 24, 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 October 29, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 29, 1980, 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, Respond- ent has engaged in and is engaging in unfair labor practices 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 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 U. F. BUSINESS EQUIPMENT, INC. 263 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. G. F. Business Equipment, Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees and all plant clerical employees employed by the Employer at the Forest City, North Carolina, plant; excluding all office clerical employees, pro- fessional employees, guards and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 17, 1980, 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 October 29, 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)(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 Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, G. F. Business Equipment, Inc., Forest City, North Carolina, its officers, agents, successors, and as- signs, 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 Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All production and maintenance employees, and all plant clerical employees employed by the Employer at the Forest City, North Caro- lina, plant; excluding all office clerical employ- ees, professional employees, guards and super- visors 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 Forest City, North Carolina, plant copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 11, 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 11, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 3 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.'" G. F. BUSINESS EQUIPMENT, INC. 265 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 Rubber, Cork, Linoleum and Plas- tic Workers of America, AFL-CIO, as the ex- clusive 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 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 production and maintenance employees, and all plant clerical employees employed by the Employer at the Forest City, North Carolina, plant; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. G. F. BUSINESS EQUIPMENT, INC.