S. B. Foot Tanning Co.

1192 S. B. FOOT TANNING CO. S. B. Foot Tanning Company and International Union of Operating Engineers, Local 340, AFL- CIO. Case 16-CA-13190 May 31, 1988 DECISION AND ORDER • BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union June 22, 1987, the General Counsel of the National Labor Rela- tions Board issued a complaint against S. B. Foot Tanning Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on May 4, 1987, fol- lowing a Board election in Case 16-RC-8920, the Union was certified as the exclusive collective-bar- gaining representative of the Respondent's employ- ees 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); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since June 7, 1987, the Respondent has refused to bargain with the Union. On August 3, 1987, the Respondent filed its answer admitting in part and denying in part the allegations in the com- plaint. On August 17, 1987, the General Counsel filed a Motion for Summary Judgment. On August 25, 1987, 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 Respondent 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 In its answer the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis that the Regional Director improperly permitted certain individuals to vote in the election who the Respondent had contended before the Re- gional Director and in its request for review to the Board were statutory supervisors. 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 Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Sections 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore fmd that the Re- spondent has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, a Minnesota corporation, oper- ates a tannery at its facility in Cactus, Texas, where It annually purchases and receives goods and serv- ices from suppliers located outside the State of Texas in excess of $50,000 and ships products valued in excess of $50,000 from its Cactus, Texas plant directly to points outside the State of Texas. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held March 31, 1987, the Union was certified as the collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees at the Cactus, Texas facility, including fleshers, wing, wringers, splitters, shipping/receiving, quality control, clean up, forklift floorhands, tanning floor operators, tanyard (tank farm), ecobar system, blue sort, beamhouse control, electric/electronics, maintenance mechanics, special maintenance, maintenance clerk, safety clerk, laboratory or laboratory techicians, technical crew chiefs and maintenance crew chiefs; excluding all truck drivers, supervisors, Member Babson notes that in the underlying representation proceed- ing his colleagues denied the Employer's request for review of the Re- gional Director's inclusion in the unit of the Employer's techmcal crew chiefs and that he indicated he would permit these individuals to vote subject to challenge in the election In view of the rule against relitiga- tion, however, Member Babson joins his colleagues in granting the Motion for Summary Judgment. 288 NLRB No. 134 S. B. FOOT TANNING CO. 1193 , office clericals and guards as defined in the Act as amended. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since May 19, 1987, the Union has requested the Respondent to bargain, and since June 7, 1987, the Respondent 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 June 7, 1987, to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Respondent 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.2 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, S. B. Foot Tanning Company, Cactus, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Union of Operating Engineers, Local 340, 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- 2 The General counsel's request for a visitatonal clause is denied as =necessary based on the facts and circumstances of this case. Cherokee Marine Ternuna4 287 NLRB 1080 (1988) 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 production and maintenance employees at the Cactus, Texas facility, including fleshers, wing, wringers, splitters, shipping/receiving, quality control, clean up, forklift floorhands, tanning floor operators, tanyard (tank farm), ecobar system, blue sort, beamhouse control, electric/electronics, maintenance mechanics, special maintenance, maintenance clerk, safety clerk, laboratory or laboratory techicians, technical crew chiefs and maintenance crew chiefs; excluding all truck drivers, supervisors, office clericals and guards as defined in the Act as amended. (b) Post at its facility in Cactus, Texas, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent'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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 3 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 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 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. WE WILL NOT refuse to bargain with Internation- al Union of Operating Engineers, Local 340, AFL- 1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 production and maintenance employees at the Cactus, Texas facility, including fleshers, wing, wringers, splitters, shipping/receiving, quality control, clean up, forklift floorhands, tanning floor operators, tanyard (tank farm), ecobar system, blue sort, beamhouse control, electric/electronics, maintenance mechanics, special maintenance, maintenance clerk, safety clerk, laboratory or laboratory techicians, technical crew chiefs and maintenance crew chiefs; excluding all truck drivers, supervisors, office clericals and guards as defined in the Act as amended. S. B. FOOT TANNING COMPANY