Dixon Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dixon Industries, Inc. and International Association of Machinists and Aerospace Workers, AFL- CIO. Case 17-CA-9631 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MFEMBERS JENKINS AND PENEI.I.O Upon a charge filed on May 1, 1980, by Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Dixon Industries, Inc., herein called Respondent or Dixon, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint on May 28, 1980, against Respondent, alleging that Re- spondent 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 February 28, 1980, following a Board election in Case 17-RC- 8749, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about April 11, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On or about June 3, 1980, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On or about June 19, 1980, counsel for the Gen- eral Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 1, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Official notice is taken of the record in the representation proceed- ing, Case 17-RC-8749, as the term "record" is defined in Secs. 102.68 and 102.6 9(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); Follelt Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA. as amended. 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 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, Respondent admits that it has declined to recognize the Union as the exclusive bargaining representative of its em- ployees. However, Respondent justifies its refusal to bargain by asserting that the Board incorrectly decided the underlying representation case. The General Counsel asserts that Respondent's admitted objective in refusing to bargain is to test the Board's Certification of Representative and that there are no matters warranting a rehearing be- cause all issues concerning the Union's certification were litigated and determined in the underlying representation case. We agree with the General Counsel. Our review of the record herein, including the record in Case 17-RC-8749, discloses that, pursu- ant to a Stipulation for Certification Upon Consent Election approved by the Regional Director, an election was conducted on June 14, 1979,2 and that the tally of ballots furnished to the parties after the election showed 30 votes for, and 25 votes against, the Union, with 5 challenged ballots. On June 21, Respondent filed objections to the election alleging that the Union made material misrepresentations to employees, including (1) a written unfair, mislead- ing, and untruthful comparison of wages paid Dixon employees and wages paid to employees of Parmac, Inc., a competitor of Dixon whose em- ployees are also represented by the Union, and (2) a handout distributed by the Union which stated that Parmac, Inc., employees were able to select their vacation dates whereas Dixon employees could not, although, in fact, the Parmac, Inc., em- ployees' contract provided that a request for vaca- tion dates had to be submitted for approval by management. By order dated June 22, the Regional Director directed a hearing on challenges and ob- jections. On July 2 and 3, a hearing was conducted concerning Respondent's objections and the five ballots which had been challenged by the Union. Thereafter, on July 25, the Hearing Officer issued his Report on Challenges and Objections to the Election with Findings and Recommendations in which he recommended that (I) the challenge to the ballots of Obie Estes, Steve Reedy, and John Burris be sustained on the ground that they are su- 2 All dates hereinafter are in 1979 unless otherwise indicated. 252 NLRB No. 98 698 DIXON INDUSTRIES, INC. pervisors; (2) the challenge to the ballots of Cal Harvey, Jr., and George McDuffee be overruled; (3) Respondent's objections be overruled in their entirety; and (4) a certification of representative issue. Thereafter, Respondent filed exceptions to the Hearing Officer's report alleging that (1) Estes, Reedy, and Burris were leadmen rather than super- visors and that the challenges to their ballots should be overruled and (2) the Hearing Officer erred in recommending that the objections be over- ruled. On February 28, 1980, the Board adopted the Hearing Officer's findings and recommenda- tions and certified the Union.3 Subsequently, by letter dated March 10, 1980, the Union requested that Respondent meet for purposes of collective bargaining. On April 11, 1980, Respondent, by letter, refused to bargain on grounds that the Deci- sion and Certification of Representative issued by the Board (reported at 247 NLRB No. 185), was in error. After a charge filed on May 1, 1980, by the Union, the Regional Director for Region 17, on May 28, 1980, issued a complaint alleging that Re- spondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the above-certified Union. The complaint alleged, inter alia, that Re- spondent's reason for refusing to bargain with the Union was to test the validity of the Board's Certi- fication of Representative in Case 17-RC-8749. On June 3, 1980, Respondent filed an answer to the complaint admitting the material factual allegations in the complaint, but alleging that its refusal to bar- gain was based solely on its good-faith doubt con- cerning the propriety of the Board's Certification of Representative. In his Motion To Transfer Proceeding to Board and for Summary Judgment the General Counsel alleges, essentially, that no factual issues litigable in this proceeding are raised by the pleadings, and that Respondent has admitted that it is refusing to bargain in order to test the validity of the Board's Certification of Representative. On July 1, 1980, the Board transferred the case to itself and ordered that Respondent show cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent has filed a response to the Motion To Transfer Proceeding to Board and for Summary Judgment in which it repeats the ar- guments that it asserted in the underlying represen- tation proceeding and, based on those arguments, requests a hearing before an administrative law judge. 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- a Dixon Industries. Inc., 247 NLRB No 185 (1980) 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. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.5 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, a Kansas corporation, is engaged in the manufacture of lawn mowing equipment at its facility at Coffeyville, Kansas. Respondent, in the course and conduct of its business operations within the State of Kansas, annually purchases goods and services valued in excess of $50,000 di- rectly from sources located outside the State of Kansas, and sells goods and services valued in excess of $50,000 directly to customers located out- side the State of Kansas. 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. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 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(0 and 102.6 9(c) 5 Chairman Fanning did not participate in the Board's Decision in the underlying representation proceeding, but agrees with his colleagues that Respondent has not offered to adduce at a hearing any newly discovered or previously unavailable evidence nor alleged any special circumstances requiring the Board to reexamine that Decision. Accordingly, he will not permit relitigation of issues raised in the representation proceeding 6 In its answer to the complaint Respondent, in addition to denying the commission of any unfair labor practices, denies that the L;nion is now and has been at all times since February 28, 1980, the representative of the employees in the stipulated appropriate unit. However, the Board, in its previoiusly referred to Decision and Certification of Representative, disposed of these issues and they therefore cannot be relitigated herein Teledyne. Landii Machine, 212 NLRB 73 (1974) 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II1. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time hourly-paid production and maintenance employees em- ployed by Respondent at its Coffeyville, Kansas, facility but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On June 14, 1979, 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 17, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on February 28, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 10, 1980, 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 April 11, 1980, and continu- ing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since April 11, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 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 insure 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). he Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Dixon Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time hourly paid production and maintenance employees employed by Respondent at its Coffeyville, Kansas, facility, but excluding all office clerical employees, profes- sional employees, guards, and supervisors as de- fined 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 February 28, 1980, 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 April 11, 1980, and at all times thereafter, to bargain collectively with the 700 DIXON INDUSTRIES, INC. 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 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, Dixon Industries, Inc., Coffeyville, Kansas, its offi- cers, 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 International Asso- ciation of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All full-time and regular part-time hourly-paid production and maintenance employees em- ployed by Respondent at its Coffeyville, Kansas, facility but excluding all office clerical employees, professional employees, 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 Coffeyville, Kansas, facility copies of the attached notice marked "Appendix. "7 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 Copies of said notice, on forms provided by the Regional Director for Region 17, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. Order of the National Labor 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 Association of Machinists and Aerospace Workers, AFL-CIO, as the ex- clusive 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 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 bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time hourly- paid production and maintenance employees employed by Dixon Industries, Inc., at its- Coffeyville, Kansas, facility but excluding all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. DIXON INDUSTRIES, INC. 701