Peerless of America, Inc.

PEERLESS OF AMERICA, INC. Peerless of America, Inc. and Local 1031, Internation- al Brotherhood of Electrical Workers, AFL-CIO. Case 13-CA-15876 April 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on October 12, 1976, by Local 1031, International Brotherhood of Electrical Work- ers, AFL-CIO, herein called the Union, and duly served on Peerless of America, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint and notice of hearing on October 21, 1976, 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, 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 July 20, 1976, following a Board election in Case 13-RC-13997, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about October 7, 1976, 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 November 1, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admit- ted that it has refused upon request to bargain with the Union since October 7, 1976. Respondent denied that a majority of its employees in the unit found appropriate selected the Union as their representa- tive for the purposes of collective bargaining with Respondent in the secret ballot election held on May 27, 1976. Respondent denied that on October 7, 1976, when it refused to bargain collectively with the Union, and continuously thereafter, the Union was, and continues to be, the duly designated exclusive collective-bargaining representative of the employees in the unit found appropriate. Respondent further ' Official notice is taken of the record in the representation proceeding, Case 13-RC-13997, 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 (C.A. 4, 229 NLRB No. 30 denied the conclusory 8(aX5) and (1) allegations and asserted that the Regional Director improperly certified the Union as the exclusive collective-bar- gaining representative of the employees in the unit found appropriate since the Regional Director failed to uphold Respondent's meritorious objections to the election and/or failed to hold a hearing on the objections. On November 11, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 18, 1976, 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. Respon- dent thereafter filed a response to the Notice To Show Cause, entitled "Opposition to the General Counsel's Motion for Summary Judgment." 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 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 its response to the Nc:;ce To Show Cause, Respondent attacks the Union's certification on the basis of preelection conduct by the Union, which Respondent alleges improperly influenced the results of the election. Review of the record herein reveals that, pursuant to a Decision and Direction of Election in Case 13- RC-13997, an election was held on May 27, 1976, and was won by the Union. On June 3, 1976, Respondent filed timely objections to conduct affecting the results of the election. Following an investigation, the Regional Director issued a Supple- mental Decision on Objections and Certification of Representative on July 20, 1976, certifying the Union as the collective-bargaining representative of Re- spondent's employees in the unit found appropriate. Respondent filed a request for review of the Supplemental Decision on Objections and Certifica- tion of Representative with the Board, which subsequently issued an Order on October 1, 1976, denying Respondent's Request for Review. Following a request by the Union on or about October 5, 1976, that Respondent bargain collective- ly in good faith with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, Respondent refused to recog- 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967): Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 183 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the certified bargaining unit. Respondent has refused to bargain with the Union since October 7, 1976. In response to a Motion for Summary Judgment, an adverse party may not rest upon denials in its pleadings, but must present specific facts which demonstrate that there are material facts in issue which require a hearing.2 Respondent in the instant case presented no material issues or facts not admitted or previously determined. 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.3 All issues raised by Respondent in this proceeding were or 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.4 We there- fore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, 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 an Illinois corporation engaged in the manufacture of heat transfer products. Respon- dent's employees in the appropriate unit are located in Respondent's Chicago, Illinois, facility, which is comprised of three buildings on the same lot, one located directly behind the other. During the last calendar or fiscal year, a representative period, Respondent, in the course and conduct of its business operations, purchased and received at its Chicago, Illinois, location goods and materials valued in excess of $50,000, which goods and materials were shipped directly to Respondent's Illinois facility from points located outside the State of Illinois. We find, on the basis of the foregoing, the Respondent is, and has been at all times material 2 Western Electric Company, 198 NLRB 623 (1972). 3 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). 4 Respondent's contention that there exists newly discovered evidence is 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 Local 1031, International Brotherhood of Electri- cal Workers, AFL-CIO, is a labor organization 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 constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees of Respondent at its facility located at 5800 North Pulaski Road, Chicago, Illinois, including the truckdriver, quality control employees, janitorial employees, plant clerical employees, and the metallurgist; excluding office clerical employees, manufacturers' representatives, technical repre- sentatives, technical employees, and all guards, professional employees and supervisors as defined in the Act. 2. The certification On May 27, 1976, 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 13, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on July 20, 1976, 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 5, 1976, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about October 7, 1976, and continuing at all times thereafter to date, Respondent has refused, and without merit. All the evidence referred to in Respondent's opposition to the General Counsel's Motion for Summary Judgment had been raised in the request for review and was duly considered by the Board. 184 PEERLESS OF AMERICA, INC. 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 October 7, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and by such refusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Peerless of America, Inc., 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 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 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 certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Peerless of America, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent at its facility -located at 5800 North Pulaski Road, Chicago, Illinois, including the truck- driver, quality control employees, janitorial employ- ees, plant clerical employees, and the metallurgist, excluding office clerical employees, manufacturers' representatives, technical representatives, technical employees, and all guards, professional employees 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 July 20, 1976, 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 7, 1976, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 mean- ing 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 that the Respondent, Peerless of America, Inc., 5800 North Pulaski Road, Chicago, Illinois, 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 Local 1031, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of Respondent at its facility located at 5800 North 185 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pulaski Road, Chicago, Illinois, including the truckdriver, quality control employees, janitorial employees, plant clerical employees, and the metallurgist, excluding office clerical employees, manufacturers' representatives, technical repre- sentatives, technical employees, and all guards, professional employees 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at 5800 North Pulaski Road, Chicago, Illinois, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Regional 13, after being duly signed by Respondent's representa- tive, 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 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. s 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." 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 Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representa- tive 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 above-named Union, as the exclusive representa- tive 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 agree- ment. The bargaining unit is: All production and maintenance employ- ees of Respondent at its facility located at 5800 North Pulaski Road, Chicago, Illinois, including the truckdriver, quality control employees, janitorial employees, plant cleri- cal employees, and the metallurgist, exclud- ing office clerical employees, manufacturers' representatives, technical representatives, technical employees and all guards, profes- sional employees and supervisors as defined in the Act. PEERLESS OF AMERICA, INC. 186