EDS-IDAB, Inc.

EDS-IDAB. INC. 19 EDS-IDAB, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 12-CA-9147 August 11, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on April 25, 1980, by Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on EDS-IDAB, Inc., herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint on May 6, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 26, 1980, following a Board election in Case 12-RC- 5725, 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 8, 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 May 19, 1980, Respond- ent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 4, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 10, 1980, the Board issued an order transferring the proceed- ing 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. I Official notice is taken of the record in the representation proceed- ing. Case 12-RC-5725, as the term "record" is defined in Secs. 10268 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Eherroystrem. Inc., h16 NLRB 938 (1967), enfd 388 F 2d 683 (4th Cir. 1968); Golden .4gc Beverage Co., 167 NLRB 151 (1t67), enfd 415 F.2d 26 (5th Cir 1969) Inlerwpc Co. '. Penl/), 269 F.Supp 573 (D.C Va 1967); I/Fltel Corp. 164 NLRB 378 (1967), enfd 397 F 2d 91 (7th Cir 1968) Sec 9(d) o the NLRA. a, amended 251 NLRB No. 5 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 refused to bargain with the Union and, in effect, attacks the validity of the Board's certification by denying that a majority of the em- ployees selected the Union in a free and uncoerced choice and by denying that it violated Section 8(a)(5) and (1) of the Act. In its response to the Notice To Show Cause, Respondent contends that objectionable conduct during the critical period prior to the election had a material effect on the election outcome, the election results do not repre- sent the employees' free choice, and, therefore, the election should be set aside or a hearing held on its objections. The General Counsel contends that Re- spondent is raising issues which were or could have been raised in the representation proceeding and is precluded from relitigating them herein. We agree with the General Counsel. Our review of the record herein, including the record in Case 12-RC-5725, reveals that, pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on November 1, 1979. The tally of ballots indicated that, of ap- proximately 86 eligible voters, 44 cast ballots for, and 37 against, the Union; there were 2 challenged ballots, an insufficient number to affect the results of the election. On November 8, 1979, Respondent filed objections to conduct affecting the results of the election. On December 18, 1979, the Regional Director for Region 12 issued his Report on Objections to the Election in which he recommended that the Board overrule Respondent's objections in their en- tirety, the request for hearing be denied, and the Union be certified as the exclusive representative of all employees in the bargaining unit set forth in the election agreement. On January 7, 1980, Respond- ent filed exceptions to the Regional Director's report and essentially reiterated its objections and argued that the election should be set aside or, al- ternatively, that a hearing be held on the objec- tions. Thereafter, on March 26, 1980, the Board issued a Decision and Certification of Representa- tive in which it adopted the Regional Director's findings and recommendations. 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- EDS-IDA3, INC. 19 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 2 All issues raised by Respondent in this proceed- ing were or could have 1teen 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. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. TiHE. BUSINESS OF RESPONDENT At all times material herein, Respondent, a Flor- ida corporation, with its principal place of business in Hialeah Gardens, Florida, has been engaged in the manufacture of newspaper machinery. During the 12 months preceding the issuance of the instant complaint, a representative period, Respondent, in the course and conduct of its business, received at its Florida plant goods and materials valued in excess of $50,000 directly from points located out- side the State of Florida. 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. THF I ABOR ORGANIZATION INVOI.VED International Association of Machinists and Aerospace Woikers, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE UNFAIR I.ABOR 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: 2 See Pthurgh Plate (lua (Co, v X 1. R B. 3 1 IS 14h, Ih2 ( I'41}: Rules and Regulatonls of the loard. Ses 1()2.h7(1) and 102 bh(c). All regular full-time and part-time production and maintenance employees, including me- chanics, welders, machinists, electricians and electronic technicians, stock clerks, spare parts expediter, quality control personnel, produc- tion control coordinator, and plant clerical em- ployees; excluding all office clerical employ- ees, professional employees, guards, watchmen and supervisors as defined in the Act. 2. The certification On November 1, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 12, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on March 26, 1980, and the Union continues to be such exclu- sive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's R, fusal Commencing on or about March 31, 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 8, 1980, and continuing at all times thereafter to date, Respondent has re- fused, 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 8, 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 I.ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, 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. EDS-IDAB, INC. 21 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. EDS-IDAB, 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 regular full-time and part-time production and maintenance employees, including mechanics, welders, machinists, electricians and electronic technicians, stock clerks, spare parts expediter, quality control personnel, production control coor- dinator, and plant clerical employees; excluding all office clerical employees, professional employees, guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since March 26, 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 8, 1980, 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 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)(l) 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. EDS-IDAB, Inc., Hialeah Gardens, Florida, its of- ficers, 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 regular full-time and part-time production and maintenance employees, including me- chanics, welders, machinists, electricians and electronic technicians, stock clerks, spare parts expediter, quality control personnel, produc- tion control coordinator, and plant clerical em- ployees: excluding all office clerical employ- ees, professional employees, guards, watchmen 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 facility in Hialeah Gardens, Flor- ida, copies of the attached notice marked "Appen- EDS-DAB, INC. 21 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dix." 3 Copies of said notice, on forms provided by the Regional Director for Region 12, 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 12, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. : In the evenl that this Order is enforced h) 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National 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 regular full-time and part-time produc- tion and maintenance employees, including mechanics, welders, machinists, electricians and electronic technicians, stock clerks, spare parts expediter, quality control person- nel, production control coordinator, and plant clerical employees; excluding all office clerical employees, professional employees, guards, watchmen and supervisors as de- fined in the Act. EDS-IDAB, INC.