Systems Engineering Associates Corp.

SYSTEMS ENGINEERING CORP. Systems Engineering Associates Corp. and Local 387, International Union of Operating Engi- neers, AFL-CIO. Case 5-CA-18206 18 March 1987 DECISION AND ORDER BY CHAIRMAN DOSTSON AND MEMBERS BABSON AND STEPHENS Upon a charge filed by the Union 10 July 1986, the General Counsel of the National Labor Rela- tions Board issued a complaint 13 August 1986 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 5 June 1986, fol- lowing a Board election in Case 5-RC-12568, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs.' 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since on or about 23 June 1986 the Com- pany has refused to bargain with the Union. On 20 August 1986 the Company filed its answer admit- ting in part and denying in part the allegations in the complaint. On 2'4 November 1986 the General Counsel filed a Motion for Summary Judgment. On 4 December 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer admits its refusal to bar- gain with the Union, but denies the validity of the certification based' on its objections to the election in the representation proceeding. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. The record, including the record in Case 5-RC- 12568, reveals that an election was held 28 March 1986, pursuant to the Regional Director's Decision and Direction of Election issued on 29 January 1980 The tally of ballots reflects that of approxi- i On 26 February 1986 the Board denied the Company's request for review of the Regional Director's Decision and Direction of Election 263 mately 196 eligible voters, 89 cast valid ballots for and 77 against the Union; 3 ballots were chal- lenged, but constituted an insufficient number to affect election results. -After considering the Com- pany's objections, the Regional Director issued a Supplemental Decision and Certification of Repre- sentative, overruling all objections raised. By letter dated 10 June 1986, the Union request- ed that the Company bargain with it regarding all matters relating to rates of pay, wages, hours, and other terms and, conditions of employment for the employees in the appropriate bargaining unit. On 18 June 1986 the Company filed' a request for review of the Regional Director's Supplemental Decision and Certification of Representative. By letter dated 23 June 1986, counsel for the Company acknowledged receipt of the Union's bargaining demand and indicated that the Company did not intend to bargain during the pendency of its re- quest for review.2 It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass - Co. v. NLRB, 313 U.S. 146, 162 (1941); Sees. 102.67(f) °and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company has failed to establish the existence of newly discovered, and previously un- available evidence or special circumstances suffi- cient to require the Board's reexamination of its de- cision in the representation proceeding.3 We there- fore find that the Company has not raised any issue that is properly litigable in this unfair labor prac- tice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing 2 On 14 October 1986 the Board denied the Company's request for review of the Regional Director's Supplemental Decision and Certifica- tion of Representative. Thereafter, on 2 December 1986 , the Board denied the Company's motion for reconsideration of the 14 October denial of its request for review It is undisputed that the Company contin- ues to refuse to bargain with the Union. 3 In the underlying representation proceeding, the Company alleged, inter alia, that its predecessor was in collusion with the Union. The Com- pany raised various issues , pertaining to that allegation which, in essence, it now raises again in its memorandum in opposition to the Motion for Summary Judgment In this regard, the Company asserts that it has newly discovered and previously unavailable evidence to the effect that other Federal agencies have initiated investigations concerning the al- leged collusion, and that therefore, circumstances exist here which war- rant reexamination of the representation proceeding In our view , howev- er, the Company's assertions do not constitute sufficient evidence to war- rant a hearing in this proceeding. 283 NLRB No. 39 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION The Company, a New Jersey corporation, pro- vides technical and warehousing services to the United States Department of the Navy under the contractual Intra-Fleet Supply Support Operations Program at' naval facilities in Portsmouth, Norfolk, and Newport News, Virginia, where it annually purchases products, goods, and materials valued in excess of $50,000 directly from points located out- side the State of Virginia. We find that the Compa- ny is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 28 March 1986, the Union was certified as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time employees employed by the Employer at all of the loca- tions at which it performs • work for the United States Department of the Navy in the vicinity of Portsmouth, Norfolk and Newport News, Virginia, including employees sent from this area on temporary assignment to other areas, material handlers or coordinators, forklift op- erators, validators, researchers, work leaders, and plant clerical employees, but excluding office clerical employees, CRT operators, guards and supervisors within the meaning of the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 10 June 1986 the Union has requested the Company to bargain, and since 23 June 1986 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 23 June 1986 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Systems Engineering Associates Corp., Portsmouth, Norfolk, and Newport News, Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Local 387, Interna- tional Union of Operating Engineers, AFL-CIO as the exclusive bargaining representative of the em- ployees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time employees employed by the Employer at all of the loca- tions at-which it performs work for the United States Department of the Navy in the vicinity of Portsmouth, Norfolk and Newport News, Virginia, including employees sent from this area on temporary assignment to other areas, material handlers or coordinators, forklift op- erators,, validators, researchers, work leaders, and plant clerical employees, but excluding office clerical employees, CRT operators, guards and supervisors within the meaning of the Act. (b) Post at its facilities in Portsmouth, Norfolk, and Newport News, Virginia, copies of the at- SYSTEMS ENGINEERING CORP. tached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Direc- tor for Region 5, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. I would deny the General Counsel's Motion for Summary Judgment and have a hearing on the Em- ployer's Objections 5 and 7. 4 If 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 Nation- al Labot 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 265 WE WILL NOT refuse to bargain with Local 387, International Union of Operating Engineers, AFL- CIO as the exclusive representative of the employ- ees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time employees employed by the Employer at all of the loca- tions at which it performs work for the United States Department of the Navy in the vicinity of Portsmouth, Norfolk and Newport News, Virginia, including employees sent from this area on temporary assignment to other areas, material handlers or coordinators, forklift op- erators, validators, researchers, work leaders, and plant clerical employees, but excluding office clerical employees, CRT operators, guards and supervisors within the meaning of the Act. SYSTEMS ENGINEERING ASSOCIATES CORP. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.