Commercial Testing & Engineering Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commercial Testing & Engineering Co. and Team- sters Local Union No. 175, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 9-CA-16459 July 28, 1981 DECISION AND ORDER Upon a charge filed on February 19, 1981, by Teamsters Local Union No. 175, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Com- mercial Testing & Engineering Co., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on March 5, 1981, 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 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 October 21, 1980, following a Board election in Case 9-RC- 13104, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about January 9, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On March 13, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On March 30, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 3, 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 thereafter filed a response to the Notice To Show Cause. 'Official notice is taken of the record in the representation proceeding, Case 9-RC-13104, 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 Electrosyslems. 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); Iniertype 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. 257 NLRB No. 60 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, Respondent admits the Union's request, and its refusal to recog- nize or bargain with the Union, but denies that the Union is the exclusive collective-bargaining repre- sentative of the employees in the unit described below. Review of the record herein, including the record in Case 9-RC-13104, reveals that on No- vember 20, 1979, the Regional Director issued a Decision and Direction of Election. Thereafter, Respondent filed a timely request for review of the Regional Director's decision on the grounds that the petitioned-for unit was inappropriate because it excludes mine laboratory employees and laboratory employees and includes Hicks and Surface who, the Regional Director found, were not supervisors within the meaning of the Act. In its Decision on Review and Order issued on March 26, 1980, the Board included the laboratory employees and mine laboratory employees and excluded, as statutory su- pervisors, Hicks and Surface. Thereafter, an elec- tion by secret ballot was conducted on May 2, 1980, among Respondent's employees in the fol- lowing appropriate unit: All preparation department and laboratory de- partment employees of Respondent employed at its Charleston, West Virginia plant, and all related mine laboratory employees, but exclud- ing all office clerical employees, professional employees, guards, and supervisors as defined in the Act. The tally was eight for, and five against, the Union with four challenged ballots cast, a number suffi- cient to affect the results. Thereafter, Respondent filed timely objections to conduct affecting the re- sults of the election and, on June 19, 1980, the Re- gional Director issued a Supplemental Decision, Order Directing Hearing and Notice of Hearing. On September 30, 1980, the Hearing Officer issued his report which recommended that three of the challenges be sustained and that those ballots not be opened or counted, and that the fourth chal- lenged ballot cast by White, and the objections, be overruled. On September 12, 1980, Respondent filed limited exceptions to the report and on Octo- ber 7, 1980, the Acting Regional Director issued his Second Supplemental Decision and Order adopting the Hearing Officer's recommendation. On October 17, 1980, Respondent filed timely re- quest for review of the Second Supplemental Deci- sion, which was denied. On October 21, 1980, the 300 COMMERCIAL TESTING & ENGINEERING CO. Regional Director issued and served on the parties an "Amended Second Supplemental Decision and Certification of Representative" wherein he certi- fied the Union as the exclusive bargaining repre- sentative in the unit found appropriate. 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: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, an Illi- nois corporation, with its principal place of busi- ness in Charleston, West Virginia, has been en- gaged in the collection, preparation, and testing of coal samples. During the 12 months preceding the issuance of the complaint, Respondent, in the course and conduct of its business operations, pur- chased and received at its Charleston, West Virgin- ia, facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of West Virginia. 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 Teamsters Local Union No. 175, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 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). 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 preparation department and laboratory de- partment employees of Respondent employed at its Charleston, West Virginia plant, and all related mine laboratory employees, but exclud- ing all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On May 2, 1980, 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 9, 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 21, 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 December 16, 1980, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about January 9, 1981, 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 January 9, 1981, 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. 301 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 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 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. Commercial Testing & Engineering Co. is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 175, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3. All preparation department and laboratory de- partment employees of Respondent employed at its Charleston, West Virginia, plant, and all related mine laboratory employees, but excluding all office clerical employees, professional 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 October 21, 1981, 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 January 9, 1981, 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, Commercial Testing & Engineering Co., Charles- ton, West Virginia, 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 Teamsters Local Union No. 175, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bar- gaining representative of its employees in the fol- lowing appropriate unit: All preparation department and laboratory de- partment employees of Respondent employed at its Charleston, West Virginia plant, and all related mine laboratory employees, but exclud- ing all office clerical 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 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: 302 COMMERCIAL TESTING & ENGINEERING CO. (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 Charleston, West Virginia, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 9, 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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." 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 Teamsters Local Union No. 175, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre- sentative 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 preparation department and laboratory department employees of the Employer em- ployed at its Charleston, West Virginia plant, and all related mine laboratory em- ployees, but excluding all office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. COMMERCIAL TESTING & ENGINEER- ING Co. 303