Kansas City Terminal Elevator Company

KANSAS CITY TERMINAL ELEVATOR COMPANY Kansas City Terminal Elevator Company and Ameri- can Federation of Grain Millers, AFL-CIO, Local Union No. 16. Case 17-CA-10693 March 3, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMI:RMAN Upon a charge filed on November 2, 1981, by American Federation of Grain Millers, AFL-CIO, Local Union No. 16, herein called the Union, and duly served on Kansas City Terminal Elevator Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a com- plaint on November 18, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (I) 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 ad- ministrative 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 September 15, 1981, following a Board election in Case 17- RC-9283,' the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; and that, commencing on or about October 30, 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 November 24, 1981, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On December 10, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 18, 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. On Decem- ber 18, 1981, Respondent filed a motion to include an exhibit and a response in opposition to the Gen- Official notice is taken of the record in the representation proceed- ing, Case 17-RC-9283, 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 L TV Electrovsvems. Inc., 166 NL.RB 938 (1967), enfd 388 F2d 683 (4th Cir 1968); Golden .4ge Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir 1969); lntertpe Co. v Penello, 269 F.Supp 573 (D.C Va 1967); IFllenr Corp. 164 NLRB 378 (1967), enfd 197 F 2d 91 (7th Cir. 1968); Sec 9(d) of the NL.RA, as amended 260 NLRB No. 80 eral Counsel's Motion for Summary Judgment. On January 18, 1982, Respondent filed a response to the Notice To Show Cause. 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 admits the refusal to recognize and to bargain with the Union, but asserts that the Union's certification was im- properly issued in Case 17-RC-9283 because the unit certified in that case is not appropriate. Respondent reiterates this contention in its re- sponse in opposition to the General Counsel's Motion for Summary Judgment and further con- tends in its motion to include an exhibit that the Board should take administrative notice of the tran- script of the underlying representation proceed- ing. 2 The General Counsel argues that, since Re- spondent admits the material allegations of the complaint, it is merely attempting to relitigate issues that were or could have been disposed of in the underlying representation case. We agree with the General Counsel. Our review of the record, including the record of the underlying representation case (Case 17- RC-9283), reveals that the Regional Director for Region 17 issued a Decision and Direction of Elec- tion on August 7, 1981, in which he found appro- priate a unit of all full-time and regular part-time production and maintenance employees and the leadman employed by Respondent at its Kansas City Terminal Elevator No. 1, located at 5801 Bir- mingham Road, Kansas City, Missouri, but exclud- ing office clerical employees, temporary employ- ees, professional employees, guards and supervisors as defined in the Act. In so doing, the Regional Di- rector rejected Respondent's contention that the only appropriate unit should also include the full- time and regular part-time employees employed at its Elevator No. 2. Thereafter, Respondent filed a timely request for review of the Regional Direc- tor's decision contending that the unit should in- clude certain employees at its Elevator Nos. I and 2 because, contrary to the Regional Director's find- ings, there is a high degree of interchange between the employees of the two facilities, the employees 2 Respondent's motiorn is herehb denied inasmuch as the transcript of that proceeding has already been made a part of the record as defined in Sees 102 68 and 10)2 6 9(g) of the Act as noted in fn I of this Decision 611 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of both facilities have common supervision, and the two facilities, which are I mile apart, form a cohe- sive, functionally integrated and highly interdepen- dent operation. On September 2, 1981, by telegram, the Board denied Respondent's request for review. Pursuant to the Regional Director's direction, an election was conducted on September 4, 1981, in the unit found appropriate. The tally of ballots in- dicated eight votes for, and six votes against, the Union and there were no challenged ballots. On September 15, 1981, the Regional Director for Region 17 issued a Certification of Representative. On or about September 29, 1981, the Union, by letter, requested Respondent to recognize the Union and to bargain collectively with it as the ex- clusive representative of its employees in the ap- propriate unit. In its answer to the complaint and in its response to the Notice To Show Cause, Re- spondent admits that it refused and continues to refuse to recognize and to bargain with the Union. Further, Respondent concedes in its response to the Notice To Show Cause that it does not seek to submit further evidence in support of its position. 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.: 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 FAC I I. I THE BUSINESS OF RESPONDI)NT Respondent is a Missouri corporation engaged in the operation of grain elevators at two facilities lo- cated in Kansas City, Missouri, including a facility located at 5801 Birmingham Road, Kansas City, Missouri. Respondent in the course and conduct of its business operations within the State of Missouri annually purchases goods and services valued in : Sec Prtshurgh Plat, Glauss Co v. N L. RB.. .313 U S 146, Ih2 (1941). Rules and Regulalions of the Board. Sees. 102 67(f) and 102 6 9 (c) excess of $50,000 directly from sources located out- side the State of Missouri. 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 I.ABOR ORGANIZATION INVOLVED American Federation of Grain Millers, AFL- CIO, Local Union No. 16, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UN1FAIR 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 and leadmen em- ployed by Respondent at its Kansas City Ter- minal Elevator No. 1, located at 5801 Birming- ham Road, Kansas City, Missouri, excluding office clerical employees, temporary employ- ees, professional employees, guards and super- visors as defined in the Act. 2. The certification On September 4, 1981, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 17, designated the Union as their representative for the purposes of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on September 15, 1981, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 29, 1981, 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 October 30, 1981, 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- 612 KANSAS CITY TERMINAI. El.EVAT()R COMPANY sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 30, 1981, 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. TIHE }FI-Ft.CT OF THIi UNFAIR L.AHOR PRACTICI S UPON COMMlIRCE 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. FHI Ri-Ni I)\ 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); Cornmerce 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: CONC LUSIONS o0 LAW i. Kansas City Terminal Elevator Company is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. American Federation of Grain Millers, AFL- CIO, Local Union No. 16, 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 and leadmen employed by Respondent at its Kansas City Terminal Eleva- tor No. 1, located at 5801 Birmingham Road, Kansas City, Missouri, excluding office clerical em- ployees, temporary 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 September 15. 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 October 30. 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, Kansas City Terminal Elevator Company. Kansas City, Missouri, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with American Feder- ation of Grain Millers, AFL-CIO, Local Union No. 16, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees and leadmen em- ployed by Respondent at its Kansas City Ter- minal Elevator No. 1, located at 5801 Birming- ham Road, Kansas City, Missouri, excluding office clerical employees, temporary employ- DECISIONS OF NATIONAl. IABOR RELATIONS BOARD 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 Respondent's Elevator No. 1 facility located at 5801 Birmingham Road copies of the at- tached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Direc- tor for Region 17, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent 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. 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 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORD)R OF THE NATIONAL LABOR RELA TIONS BOARD An Agency of the United States Government WE Wl l. NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with American Federation of Grain Millers, AFL-CIO, Local Union No. 16, as the exclu- sive representative of the employees in the bargaining unit described below. WE Wlt l 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 WIl.I, 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 and lead- men employed by the Employer at its Kansas City Terminal Elevator No. 1, locat- ed at 5801 Birmingham Road, Kansas City, Missouri, excluding office clerical employ- ees, temporary employees, professional em- ployees, guards and supervisors as defined in the Act. KANSAS CrTY TERMINAL ELEVATOR COMPANY 614