Basic Wire Products, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1974

210 N.L.R.B. 351 (N.L.R.B. 1974)

BASIC WIRE PRODUCTS, INC. 351
Basic Wire Products, Inc. and United Paperworkers
International Union, AFL-CIO. Case 9-CA-8098
April 29, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on October 25, 1973, by
United Paperworkers International Union,l AFL -
CIO, therein called the Union, and duly served on Basic
Wire Products, Inc., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 9,
issued a complaint and amended complaint on
November 16 and 27, 1973, respectively, against
Respondent, alleging that Respondent 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, 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 January 18,
1973, following a Board election in Case 9-RC-9635
the International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, AFL-CIO, herein called Sul-
phite Workers, was certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate, and that,
subsequently on August 23, 1973, this certification
was amended upon Sulphite Workers petition in
Case 9-AC-38 to designate the Union as the certified
representative.' Thereafter, commencing on or about
September 19, 1973, Respondent has refused, and
continues to refuse, to bargain collectively with the
Union, although the Union has requested it to do so.
On November 21, 1973, Respondent answered the
complaint admitting in part, and denying in part, the
allegations in the complaint and raising two affirma-
tive defenses.
On December 21, 1973, the General Counsel filed
directly with the Board a Motion for Summary
Judgment. Respondent's response, entitled "Opposi-
tion to Motion for Summary Judgment," was filed on
December 26, 1973. Subsequently, on January 9,
1974, the Board issued an order transferring the
proceeding to the Board together with a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to the Notice To
Show Cause by letter dated January 10, 1974,
electing to stand on its original response.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 and responses,
Respondent contends that by reason of its objections
to the election, alleging union acts and conduct prior
to, during, and following the election, the certifica-
tion of representative issued on the basis of the
election in Case 9-RC-9635 was invalid, or, at the
very least , it was entitled to a hearing on its
objections. We do not agree.
A review of the entire record, including those in
Cases 9-RC-9635 and 9-AC-38, reveals that in the
election conducted on July 28, 1972, pursuant to a
Stipulation for Certification Upon Consent Election,
a majority vote was cast in favor of the Sulphite
Workers. Respondent filed timely objections to
conduct affecting the results of an election, alleging
in substance that Sulphite Workers had created an
impression of immediate financial gain to employees
in return for a union vote, had actually paid an
employee in the vicinity of the polls, and by other
acts had unfairly affected the election results. After
an investigation, the Regional Director issued a
Report on Objections on September 21, 1972,
recommending that the objections be overruled and
the Sulphite Workers certified . In so doing, he found
that the payment to the employee observer after the
election was compensation for lost time and travel
expenses incurred while attending preelection confer-
ences, and acting as an observer. Respondent filed
exceptions with the Board, renewing its objections
and requesting hearing thereon. The Board, on
January 18, 1973, issued a Decision and Certification
of Representative, adopting the Regional Director's
findings , conclusions , and recommendations, and
certifying the Sulphite Workers.
Subsequently, upon the Sulphite Workers request,
and after an investigation in Case 9-AC-38, the
certification was amended by the Acting Regional
Director on August 23, 1973, to name the Union, in
place of the Sulphite Workers, as the certified
representative. The Respondent filed a timely request
' Official notice is taken of the record in the representation proceeding , Electrosystems, Inc, 166 NLRB 938, enfd . 388 F .2d 683 (C A. 4, 1968);
Case 9-RC-9635, and the amendment to the certification proceeding , Case Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1969);
9-AC-38, as the term "record" is defined in Secs . 102.68 and 102.69(f) of Intertype Co v. Penello, 269 F .Supp. 573 (D.C. Va., 1967); Follett Corp., 164
the Board's Rules and Regulations, Series 8 , as amended See LTV NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
210 NLRB No. 59
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for review which the Board denied on September 12,
1973, as raising no substantial issues warranting
review.
In the instant proceeding Respondent has renewed
his representation case objections and request for a
hearing thereon. It is well settled that in the absence
of newly discovered or previously unavailable evi-
dence or special circumstances a respondent in an
8(a)(5) proceeding is not entitled to relitigate issues
which were or could have been litigated in a prior
representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered 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.3
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
In its response, the Respondent also raises affirma-
tive defenses of Section 10(b) of the Act and res
judicata. We find no merit therein. As to the 10(b)
contention, it appears that the charge herein was
timely filed on October 25, 1973, within 6 months of
the Union's bargaining demand on September 19,
1973, and the refusal thereof by the Respondent on
September 27, 1973. As to the resjudicata issue, the
Respondent contends that the order dismissing the
refusal-to-bargain charge in Case 9-CA-7606, filed
on February 22, 1973, and complaint therein,
constituted litigation thereof so as to bar the instant
proceeding. That charge and complaint was with-
drawn at the request of the Sulphite Workers without
any hearing or adjudication on the merits. Thus,
there was no final judgment upon which to base the
doctrine of res judicata. See The Cavern Supply
Company, Inc., 203 NLRB No. 97, fn. 1.
As there is no merit in Respondent's defenses, and
as it has not raised any issues properly litigable in
this proceeding, we shall grant the General Counsel's
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
2 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102.69(c).
3 Respondent, in his response to the Motion for Summary Judgment,
contends that NLRB v Savair Manufacturing Co, 414 U.S. 270 (1973),
requires reconsideration of the objections set forth in the representation
case, particularly with respect to the payment of the employee observer,
Respondent directs our attention to fn . 6 in Savair, specifically Collins and
Aikman Corp. v. NLRB., 383 F.2d 722 (CA. 4, 1967). As in the instant
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Delaware corporation , is engaged in
the manufacture of wire products in its plant located
at Canal Winchester, Ohio. During the past 12
months, a representative period, Respondent had
direct inflow of goods and materials valued in excess
of $50,000, which it purchased and caused to be
shipped in interstate commerce to its plant located in
Canal Winchester, Ohio, from points directly outside
the State of Ohio.
We find, on the basis of the foregoing, that
Respondent 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
United Paperworkers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective -bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees em-
ployed by Respondent at its plant located at 59
N. Gender Road, Canal Winchester, Ohio, but
excluding all office clerical employees , guards,
and supervisors as defined in the Act.
2. The certification
On July 28, 1972, 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 9 designated the Sulphite
Workers as their representative for the purpose of
collective bargaining with the Respondent. The
Sulphite Workers was certified as the collective-
case, Collins dealt with payment to an employee to act as an election
observer, which , under the circumstances, the Court found to be
unreasonable and excessive . The payment herein , however, was found to be
compensation for lost time and travel expenses incurred while attending
preelection conferences and acting as an observer. Accordingly, the
decisions in Collins, and the Supreme Court in Savair, which dealt with
waiver of initiation fees prior to an election, are distinguishable and do not
mandate reconsideration of this objection.
BASIC WIRE PRODUCTS, INC. 353
bargaining representative of the employees in said
unit on January 18, 1973, which certification was
thereafter amended to name the Union as certified
representative and the Union continues to be such
exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about September 19, 1973, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above -described unit. Com-
mencing on or about September 27, 1973, and
continuing at all times thereafter to date, the
Respondent has refused , and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly , we find that the Respondent has,
since September 27, 1973, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate 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.
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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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 wits- *n 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
ec to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A.
5, 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421, enfd.
350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Basic Wire Products, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Paperworkers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its plant located at 59 N.
Gender Road, Canal Winchester, Ohio, but exclud-
ing all office clerical employees, guards, and supervi-
sors as defined 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 August 23, 1973, 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 September 27, 1973,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices 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, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged 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 mean-
ing 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
Relations Board hereby orders that Respondent,
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Basic Wire Products, Inc., Canal Winchester, Ohio,
its officers , 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 United Paperwork-
ers International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its plant located at 59
N. Gender Road, Canal Winchester, Ohio, but
excluding all office clerical employees, guards,
and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Canal Winchester, Ohio, plant copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 9, 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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 9, 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, the words in the notice reading "Posted ay Order
of the National 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with United
Paperworkers International Union, AFL-CIO, as
the exclusive 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 employees
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 representa-
tive 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 agree-
ment . The bargaining unit is:
All production and maintenance employees
employed by Respondent at its plant located
at 59 N. Gender Road, Canal Winchester,
Ohio, but excluding all office clerical em-
ployees, guards, and supervisors as defined
in the Act.
BASIC WIRE PRODUCTS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 3003,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.