Boston Insulated Wire & Cable Co.

264 NLRB No. 44 D--9299 Plymouth, MA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD BOSTON INSULATED WIRE & CABLE CO. and GENERAL TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF BROCKTON & VICINITY, LOCAL UNION NO. 653, a/w INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA Case 1--CA--19796 DECISION AND ORDER Upon a charge filed on April 28, 1982, by General Teamsters, Chauffeurs, Warehousemen & Helpers of Brockton & Vicinity, Local Union No. 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Boston Insulated Wire & Cable Co., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 1, issued a complaint on May 19, 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 264 NLRB No. 44 D--9299 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 proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 20, 1982, following a Board election in Case 1--RC--17136, 1 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; and that, commencing on or about February 8, 1982, 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 June 2, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 6, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 12, 1982, the Board issued an order transferring the proceeding 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 the Notice To Show Cause. 1 Official notice is taken of the record in the representation proceeding, Case 1--RC--17136, 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); Intertype 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. D--9299 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a threemember 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 its response to the Notice To Show Cause, Respondent attacks the validity of the Union's certification because of the alleged erroneous resolution of its objections to the conduct affecting the election in Case 1--RC--17136. Review of the record herein, as well as that of Case 1--RC-- 17136, reveals that, on February 26, 1981, an election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally of ballots showed that 69 votes were cast for, and 66 votes were cast against, the Union. Thereafter, Respondent filed timely objections to conduct affecting the election alleging that the Union had engaged in material misrepresentations and that union agents had engaged in impermissible electioneering during the election. On April 10, 1981, the Acting Regional Director issued a Report on Objections in which he recommended that Respondent's objections be overruled and the Union be certified. The Acting Regional Director found that the Union had not made material misrepresentations and that electioneering by union agents during the voting hours did not interfere with the free choice of voters in the election. D--9299 Thereafter, Respondent filed timely exceptions to the Acting Regional Director's report contending that the alleged objectionable conduct required that the election be set aside. 2 On January 20, 1982, the Board issued a Decision and Certification of Representative in which it adopted the Acting Regional Director's findings and recommendations and certified the Union. 3 On February 22, 1982, Respondent filed a motion for reconsideration of the Board's Decision, contending that its objection concerning alleged improper electioneering by union agents required setting aside the election or at least raised factual issues requiring a hearing. In support of its motion, Respondent submitted evidence, in the form of post-decision affidavits, which it asserted established that the electioneering interfered with the free choice of voters. On May 18, 1982, the Board denied Respondent's motion for reconsideration as containing nothing not previously considered. The Board specifically rejected the post-decision evidence submitted by Respondent, noting that such evidence had not been submitted during the original investigation of its objections and that Respondent had not alleged any unusual circumstances to justify its failure to do SO. As reflected in its answer to the complaint and its response to the Notice To Show Cause, Respondent defends against its refusal to bargain on the ground that the Board erred in overruling its objections or in failing to order a hearing 2 Respondent did not contend that a hearing on its objections was warranted. 3 259 NLRB No. 149 (1982). D--9299 thereon, and in rejecting the post-decision evidence submitted in support of its motion for reconsideration. However, these matters were fully considered in the underlying representation case and were resolved adversely to Respondent. It is well settled that, in the absence of newly discovered or previously unavailable evidence or special circumstances, a respondent in a proceeding alleging 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 To the extent that Respondent contests the validity of the Union's certification, the issues it raises could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered 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 issues which are properly litigable in this unfair labor practice proceeding. Respondent also contends that summary judgment should be denied on the grounds that Respondent has experienced substantial employee turnover in the period following the February 26, 1981, election. We find no merit in this contention. Such employee turnover is not a ''special circumstance'" warranting an attack 4 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). D--9299 on the conclusively presumed majority status a union enjoys during its certification year. 5 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 Respondent is engaged in the manufacture, sale, and distribution of insulated wire and related products at a facility located at Court Street, Plymouth, Massachusetts. Respondent admits that, annually, it ships insulated wire valued in excess of $50,000 directly from its Plymouth facility to points located outside the Commonwealth of Massachusetts. We find, on the basis of the foregoing, that Respondent 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 General Teamsters, Chauffeurs, Warehousemen & Helpers of Brockton & Vicinity, Local Union No. 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 6 is a labor organization within the meaning of Section 2(5) of the Act. 5 KFC National Management Company, 214 NLRB 232, 234 (1974) 6 In its answer to the complaint, Respondent states that it lacks information and belief with respect to the Union's status as a labor organization. In the underlying (continued) D--9299 III. The Unfair Labor Practices A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its Plymouth, Massachusetts location, excluding quality control employees, technical employees, office clerical employees, guards and supervisors as defined in the Act. 2. The certification On February 26, 1981, 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 1, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on January 20, 1982, 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 January 29, 1982, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining 6 representation case, Respondent stipulated to the Union's status as a labor organization, did not object to the election on the ground that the Union lacked such status, and did not raise the issue at any time during the representation proceeding. Thus, it cannot now raise the issue. Flair Molded Plastics, Inc., 250 NLRB 202 (1980). D--9299 representative of all the employees in the above-described unit. Commencing on or about February 8, 1982, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since February 8, 1982, and at all times thereafter, refused to bargain collectively 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 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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 D-9299 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate 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. Boston Insulated Wire & Cable Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters, Chauffeurs, Warehousemen & Helpers of Brockton & Vicinity, Local Union No. 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section (5) of the Act. 3. All production and maintenance employees employed by the Employer at its Plymouth, Massachusetts location, excluding D--9299 quality control employees, technical employees, office clerical employees, guards and supervisors as defined 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 January 20, 1982, 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 collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about February 8, 1982, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By the aforesaid refusal to bargain, Respondent 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 engaged 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 Relations Board hereby orders D--9299 that the Respondent, Boston Insulated Wire & Cable Co., Plymouth, Massachusetts, 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 General Teamsters, Chauffeurs, Warehousemen & Helpers of Brockton & Vicinity, Local Union No. 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Plymouth, Massachusetts location, excluding quality control employees, technical employees, office clerical employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 understanding in a signed agreement. 9299 (b) Post at its Plymouth, Massachusetts, facility copies of the attached notice marked ''Appendix. Copies of said notice, on forms provided by the Regional Director for Region 1, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. September 29, 1982 John H. Fanning, Member Howard Jenkins, Jr., Member Don A. Zimmerman, Member NATIONAL LABOR RELATIONS BOARD (SEAL) 7 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 PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. D--9299 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 General Teamsters, Chauffeurs, Warehousemen & Helpers of Brockton & Vicinity, Local Union No. 653, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive 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 employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the abovenamed Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by the Employer at its Plymouth, Massachusetts location, excluding quality control employees, technical employees, office clerical employees, guards and supervisors as defined in the Act. BOSTON INSULATED WIRE & CABLE CO. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Keystone Building, 12th Floor, 99 High Street, Boston, Massachusetts 02110, Telephone 617--223--4550.