Honeywell, Inc.

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Honeywell, Inc. and Highway Truck Drivers and Helpers Local 107, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4-CA-I 1001 August 21, 1980 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELI.O Upon a charge filed on April 9, 1980, by High- way Truck Drivers and Helpers Local 107, affili- ated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Honeywell, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 4, issued a complaint and notice of hearing on April 29, 1980, against Respondent, alleging that Respon- dent 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 January 21, 1980, following a Board election in Case 4-RC- 13662, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate,' and that, commencing on or about January 25, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On May 9, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the matters alleged therein and stating certain affirmative de- fenses. On June 2, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 5, 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 Summary Judg- ment should not be granted. Respondent thereafter Official notice is taken of the record in the representation proceed- ing, Case 4-RC-3662, as the term "record" is defined in Sees. 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. 415 251 NLRB No. 60 filed a response to Notice To Show Cause and a memorandum in opposition to the General Coun- sel's Motion for Summary Judgment. In addition, Respondent moved that the complaint be dismissed or, in the alternative, that it be remanded for hear- ing. 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, response to the Notice To Show Cause, and memorandum in oppo- sition to the Motion for Summary Judgment, Re- spondent, in substance, agrees that the Union is the certified bargaining representative and that it has refused the Union's demand for bargaining, but it attacks the validity of the Union's certification on the grounds that the Board improperly overruled its objections to the election in the underlying rep- resentation proceeding. Review of the record herein, including that in the representation proceeding, Case 4-RC-13662, establishes that, pursuant to a Stipulation for Certi- fication Upon Consent Election, an election was conducted among certain of Respondent's employ- ees on June 8, 1979, which the Union won by a vote of five to three; there were no challenged bal- lots. Respondent filed timely objections to conduct affecting the results of the election, alleging that certain preelection conduct by union adherents in- terfered with the employees' exercise of a free choice of bargaining representative. The Regional Director ordered a hearing on these objections, which was held on June 29, 1979. On September 19, 1979, the Hearing Officer issued her Report on Objections in which she con- cluded that Respondent's objections were without sufficient merit to warrant setting aside the elec- tion. Thereafter, Respondent filed timely excep- tions and a supporting brief. On January 21, 1980, the Board, after reviewing the record in light of Respondent's exceptions and brief, found that the exceptions raised no material or substantial issues of law or fact that would warrant a reversal of the Hearing Officer's recommendations, adopted the Hearing Officer's findings and recommendations, F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. HONEYWELL, INC 383 and certified the Union as the exclusive collective- bargaining representative of Respondent's employ- ees. 2 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- 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. 3 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. Accordingly, we grant the Motion for Summary Judgment, and deny Re- spondent's motion for dismissal of the complaint or, in the alternative, for a hearing. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, is licensed to do business in the Commonwealth of Pennsylva- nia, where it maintains a warehouse for the receipt and distribution of equipment. During the past year, which is a representative period, Respondent received at its Levittown, Pennsylvania, facility goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania, and shipped goods valued in excess of $50,000 from its Levittown, Pennsylvania, facility to points di- rectly outside the Commonwealth of Pennsylvania. 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 Highway Truck Drivers and Helpers Local 107, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ' The Board's Decision and Certification of Representative is not re- ported in volumes of Board Decisions. See Pfnsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c). of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. 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: All leadmen warehousemen, warehousemen, and drivers working at Respondent's facility now located at 1991 Hartell Street, Levittown, Pennsylvania, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees. 2. The certification On June 8, 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 4, designated the said Union as their representative for the purpose of collective bargaining with Respondent. The Union was certi- fied as the collective-bargaining representative of the employees in said unit on January 21, 1980, and the Union continues to be such exclusive represen- tative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 23, 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 January 25, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 25, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. HONEYWELL. INC. 383 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Honeywell, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Highway Truck Drivers and Helpers Local 107, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All leadmen warehousemen, warehousemen, and drivers working at Respondent's facility now located at 1991 Hartell Street, Levittown, Pennsyl- vania, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees, consti- tute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since January 21, 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 January 25, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive 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, Respon- dent 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, Honeywell, Inc., Levittown, Pennsylvania, 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 Highway Truck Drivers and Helpers Local 107, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All leadmen warehousemen, warehousemen, and drivers working at Respondent's facility now located at 1991 Hartell Street, Levittown, Pennsylvania, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees. (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: HONEYWELL. INC. .385 (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 Levittown, Pennsylvania, plant copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 4, 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. he sords in the notice reading "Posted h, Order of the National Labor Relations iBoard"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 Highway Truck Drivers and Helpers Local 107, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, 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 represen- tative 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 agreement. The bargaining unit is: All leadmen warehousemen, warehousemen, and drivers working at our facility now lo- cated at 1991 Hartell Street, Levittown, Pennsylvania, but excluding all office cleri- cal employees, professional employees, guards and supervisors as defined in the Act, and all other employees. HONEYWELL, INC. HONEYELL, INC. 385