Iowa Electric Light & Power Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iowa Electric Light & Power Company and Interna- tional Brotherhood of Electrical Workers, Local Union 204, AFL-CIO. Case 18-CA-7594 September 27, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on February 19, 1982, and amended on March 2, 1982, by International Broth- erhood of Electrical Workers, Local Union 204, AFL-CIO, herein called the Union, and duly served on Iowa Electric Light & Power Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 18, issued a complaint on March 29, 1982, 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 12, 1979, following a Board election in Case 18-RC- 12199, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the residual voting group found appropriate;' and that, commencing on or about August 19, 1981, 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 April 9, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. In 1972, in Case 18-RC-9311, as amended in 1973 by Case 18-AC-29, the Union was certified as the collective-bargaining agent for a unit of Re- spondent's production and maintenance employees. The Acting Regional Director in the instant case determined that the residual group involved herein is eligible for inclusion in the existing production i Official notice is taken of the record in the representation proceed- ing. Case 18-RC 12199, as the term "record" is defined in Sees. 102.68 and 102 69 (g) of the Board's Rules and Regulations, Series 8, as amended See LII Eleerrnsivtr ns. Inc ., 166 NLRKI 938 (1967), enfd. 388 F-.2d 683 (4th Cir 1968); Golden .4ge Bevrage Co.. 167 NLRB 151 (1967), enfd. 415 F 2d 26 (5th Cir. 1969); Intertvpe Co. v Penello, 269 F Supp 573 (D.C.Va 1967):, olleu Corp.. 164 NLRH 378 (1967), enfd. 397 :.2d 91 (7th Cir 1968): Sec 9(d) of the N RA, as amended 264 NLRB No. 21 and maintenance unit already represented by the Union. On May 18, 1982, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on May 28, 1982, the Board issued an order transferring the proceed- ing 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, and the Union filed a joinder to the General Counsel's motion. 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 threc-miilber 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 denies the validity of the Union's certification based on its contention that the Board erred in including Re- spondent's quality department inspectors in an ap- propriate residual voting group eligible for inclu- sion in the existing production and maintenance unit already represented by the Union. 2 Counsel fc6fihe General Counsel asserts int her Motion for Summary Judgment that Respondent is attempting to relitigate issues which were fully litigated in the underlying representation proceeding. We agree. Our review of the record herein, including the record in Case 18-RC 12199. reveals that on March 23, 1979, the Acting Regional Director for Region 18 issued a Decision and Direction of Elec- tion directing that an election be held among Re- spondent's quality department inspectors at its Duane Arnold Energy Center facility to determine whether those employees desired to be represented by the Union, which was already certified to repre- sent the production and maintenance employees at the facility.3 On March 30, 1979, Respondent filed a request for review contending, inter alia, that the Acting Regional Director erred by concluding that the quality department inspectors were not supervi- sors or managerial employees xwithin the meaning 2 Respondent staled ill its Iel l Io the liOt d'Is111It g liht' U1nlions1'. re- questl l bargain with Rc'sponllcrl thIa, '"se illrrld it. hiixe thc Certifica- tion rev iewed hby the If S ('sutt of' App. als [or the Mth ('ircuit Therefore, [we] ill not bargain with 'i u inwl '' a Respondent and Ihe Uniol signed a c hillelhte hargaining agreermennt covering the prodluctiotl and mlllllllciar lc uliplo'i , Jcclitellr Scptebrlher I. 1979, through September I. I981. hle partie s stiplltaed ihJl. if lithe quality department inspectors .crc folllnd It he ail apprpprl;ll unit, that unit 'Arould he added to the proiuclu on all d nr lal, il i·iit Uni ill il the e ent tile quality department ilnpt ctors slccslted thi I lii,1 il, their collectise- bargaining represctalltise 144 IOWA ELECTRIC LIGHT & POWER COMPANY of the Act, and that therefore they were eligible to vote in the election. The Board, Members Jenkins and Murphy dissenting, affirmed the Acting Re- gional Director's decision by telegraphic decision dated July 17, 1979. Pursuant to that direction, an election was held on August 8, 1979. Respondent challenged the ballots of all three eligible voters on the ground that they were supervisors. The Re- gional Director overruled those challenges in a Supplemental Decision and Order issued August 20, 1979. The Board, Member Murphy dissenting, by telegraphic decision of October 2, 1979, denied Respondent's request for review of the Supplemen- tal Decision and Order. After opening and count- ing the challenged ballots, the revised tally of bal- lots shows three votes for, and no votes against, the Union. The Regional Director on October 12, 1979, certified the Union as the exclusive bargain- ing representative of the quality department inspec- tors. 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.4 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. 5 4 See Pittsburgh Plate Glass Co. %. .L, RB.. 313 U.S. 146, 162 (1941). Rules and Regulations of the Board. Sees 102 67(f) and 102.6 9(c). · Respondent in its answer and in its response to Notice To Show Cause maintains that: the October 12. 1979. certification, even if original- ly valid, has expired; the charge was not filed within 6 months after Re- spondent was alleged to have refused to bargain; and the Union has waived its claim that Respondent refused to bargain. We note that, based on long-established Board principles, none of these defenses has merit here. Thus, as to the first, a certified union is irrebuttably presumed to have majority status for I year after certification and after that year is presumed to continue to have majority status unless and until the em- ployer demonstrates either that the Union no longer in fact has majority status or that its refusal to bargain was predicated on a good-faith doubt based on objective considerations. lerrell /achine Compny,. 173 NLRB 1480. 1480-81 (1969); Pioneer Inn Asrsocates. d/h/a Pioneer Inn and Pio- neer Inn Casino. 228 NLRB 1263. 1265 (1977). Respondent failed to prove or even allege such a good-falth doubt or in fact lack of majority status As to Respondent's second claim, although the charge in this case was filed February 19, 1982. more than 6 months after the Union's Octo- ber 9. 1979, request for bargaining and Respondent's October 17. 1979. refusal, the Board treats a request for bargaining as continuing and has held that the failure to respond affirmatively to such a continuing request gives rise to a continuing violation of Sec. 8(a)(5) and (1) Dardanell En- terprises. Inc., 250 NLRB 377. 379 (1980); Sewanee Coal Operators' 4ssoci- otion, Inc. 167 NLRB 172. fn 3 11967) In addition. the Board holds that an explicit refusal to bargain-made in order to test the certification--is considered a continuing refusal to bargain Dordanell, 250 NLRB at 379. fn. 7; Williams Energy Compoany, 218 NL RB 1080. fn 4 (1975). Moreover. the Union on January 18. 1982. sent Respondent a letter demanding bar- 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. 6 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, an Iowa corporation and has engaged in the generation, transmission, distribution, and sale of electricity and gas, and has maintained a facility in Linn County, Iowa, known as the Duane Arnold Energy Center. During the calendar year ending December 31, 1981, Respondent in the course and conduct of its business operations derived gross revenues in excess of $250,000, sold and shipped from Iowa goods and materials valued in excess of $50,000 directly to points outside Iowa, and pur- chased and received at its Duane Arnold facility goods and materials valued in excess of $50,000 di- rectly from points outside the State of Iowa. 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. gaining. Respondent's refusal of this demand constitutes grounds for yet another cause of action concerning Respondent's alleged refusal to bar- gain in violation of the Act, and thus the February 19. 1982. charge is. in any event. timely filed as to Respondent's refusal to bargain after January 18, 1982. Respondent's waiver defense is also meritless. Following Re- spondent's October 17. 1979. refusal to bargain, the Union filed a griev- ance pursuant to the colle ctive-bargaining agreement v hich provided that the contract covered all employees within the unit defined by the NLRB. Resxondent denied the grievance, and the Union filed suit under Sec. 301 of the Labor Management Relations Act of 1947 (29 U S C § 185). claiming that the quality department inspectors were part of the unit. due to the NLRB certification, and that Respondent's refusal to bar- gain violated the contract After a 1980 Federal dislrict court ruling in favor of the Union (Local 204 v lowa Electric Light do Patoer. 490 F Supp. 873 (N.D. la. 1980)). the Eighth Circuit Court of Appeals on January 8, 1982, issued an opinion (668 F.2d 413) in which it found that the Union's suit was essentially an attempt to obtain review of an NLRB factual find- ing in a representation case and therefore reversed, holding that the dis- trict court had no jurisdiction. The Union then sent its January 18. 1982. letter, noted above, demanding that Respondent bargain Under these cir- cumstances. it is clear that the Union has not waived its claim and in fact the the Union has repeatedly and persistently adhered to its claim that Respondent has refused to bargain. As previously noted. Member Jenkins dissented with respect to the Board's denial of Respondent's request for resiew concerning the inclu- sion of quality department inspectors However, as that issue was fully litigated in the representation proceeding. Member Jenkins. for institu- tional reasons, joins in the decision to grant the Motion for Summary Judgment 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local Union 204, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. TIHE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute an appropriate residual group, eligible for in- clusion in the existing production and maintenance unit currently represented by the Union, for collec- tive-bargaining purposes within the meaning of Section 9(b) of the Act: All quality department inspectors employed by the Employer at its Duane Arnold Energy Center facility; excluding all other employees, office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. 2. The certification On August 8, 1979, a majority of the employees of Respondent in said residual group, in a secret- ballot election conducted under the supervision of the Regional Director for Region 18, designated that the Union may bargain for the employees in said residual group as part of the existing produc- tion and maintenance unit it already represented. The Union was certified on October 12, 1979, as the collective-bargaining representative of the em- ployees in said residual group as part of the unit it already represented 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 9, 1979, 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 17, 1979, 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 August 19, 1981, the date 6 months prior to the filing date of the charge in Case 18-CA-7594, 7 and 7 See Dardanell, 250 NLRB at 380. at all times thereafter, refused to bargain collective- ly 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 en- gaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR I ABOR 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 ensure 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. Iowa Electric Light & Power Company is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local Union 204, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All quality department inspectors employed by the Employer at its Duane Arnold Energy fa- cility, excluding all other employees, office clerical employees, professional employees, guards and su- 146 IOWA ELECTRIC LIGHT & POWER COMPANY pervisors as defined in the Act, constitute an ap- propriate residual group eligible for inclusion in the existing production and maintenance unit currently represented by the Union for the purpose of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since October 12, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid residual group for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 19, 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, Iowa Electric Light & Power Company, Linn County, Iowa, 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 International Brotherhood of Electrical Workers, Local Union 204, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appro- priate residual group who are eligible for inclusion in the existing production and maintenance unit: All quality department inspectors employed by the Employer at its Duane Arnold Energy Center facility; excluding all other employees, office clerical employees, professional employ- ees, 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 Duane Arnold Energy Center fa- cility copies of the attached notice marked "Ap- pendix."8 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. " 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 L ibor 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 International Brotherhood of Electrical Workers, Local Union 204, AFL-CIO, as the exclusive representative of the employees in the appropriate unit, including the residual group 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 appropriate 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit, including the residual group described below, with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The residual group, eligible for inclusion in the existing production and maintenance unit, is: All quality department inspectors employed by the Employer at its Duane Arnold Energy Center facility; excluding all other employees, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. IOWA ELECTRIC LIGHT & POWER COMPANY 148