Beaird-Poulan Division

National Labor Relations Board - Board Decisions

May 25, 1977

229 N.L.R.B. 988 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beaird-Poulan Division, Emerson Electric Company
and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW. Case 15-CA-6315
May 25, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on December 13, 1976, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW, herein called the Union, and duly served on
Beaird-Poulan Division, Emerson Electric Company,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 15, issued a complaint
and notice of hearing on December 17, 1976, 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 November 23,
1976, following a Board election in Case 15-RC-
5892 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about May 26, 1976, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On December 30, 1976, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
Respondent admitted that it has refused to bargain
with the Union since May 26, 1976. Respondent
denied that a majority of its employees in the unit
found appropriate selected the Union as their
representative for the purposes of collective bargain-
ing with Respondent in the secret ballot election held
on April 30, 1976. Respondent further denied the
f Official notice is taken of the record in the representation proceeding,
Case 15-RC-5892, 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 (C.A. 4,
1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967);
Follerr Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
229 NLRB No. 143
conclusory 8(a)(5) and (1) allegations and asserted
that the Regional Director improperly certified the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit
since ex partre credibility resolutions were made
without a hearing and/or because the Regional
Director failed to uphold Respondent's meritorious
objections.
On January 5, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 26,
1977, 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 Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause.
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 its response to
the Notice To Show Cause, Respondent attacks the
Union's certification on the basis of preelection
conduct by the Union which Respondent alleges
improperly influenced the results of the election.
Review of the record herein reveals that in Case
15-RC-5892 the petition was filed by the Union on
March 2, 1976. On April 1, 1976, a Stipulation for
Certification Upon Consent Election was approved
by the Regional Director, and the election was
conducted on April 30, 1976. Respondent filed
objections to conduct affecting the results of the
election on May 6, 1976.2 The Regional Director
issued his report on the objections on July 23, 1976,
recommending that the objections be overruled and
the Union be certified. Thereafter, Respondent filed
timely exceptions to that report, reiterating its
objections, and asserting that there were substantial
and material issues of fact and law requiring a
hearing. On November 23, 1976, the Board issued a
Decision and Certification of Representative, certify-
ing the Union as the collective-bargaining represen-
tative of the employees in the appropriate unit (not
published in bound volumes of Board Decisions). In
2 In substance the objections alleged that the laboratory conditions were
destroyed by (1) a campaign of fear and intimidation conducted by the
Union's supporters, (2) and (3) union misrepresentations concerning the
compensation, stock options, or benefits of the officials of Respondent, and
the contractual rate the Union had obtained for "assemblers" at another
employer, and (4) impermissible electioneering by supporters of the Union
in the polling area.
988
EMERSON ELECTRIC COMPANY
so doing the Board necessarily found that there were
no substantial and material issues warranting a
hearing.3
Following a request by the Union on or about May
19, 1976, that Respondent bargain collectively in
good faith with respect to rates of pay, hours, and
other terms and conditions of employment, Respon-
dent refused to recognize and bargain in good faith
with the Union as the exclusive bargaining represen-
tative of its employees in the certified unit. Respon-
dent has refused to bargain with the Union since
May 26, 1976.
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings, but must present specific facts which
demonstrate that there are material facts at issue
which require a hearing. 4 Respondent in the instant
case presented no material facts not admitted or
previously determined.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.5
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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. We therefore
find that Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Missouri corporation engaged in
the manufacture and distribution of power chain
saws. During the past 12 months, which period is
representative of all times material herein, Respon-
dent shipped directly to points located outside the
State of Louisiana goods valued in excess of $50,000.
During the same 12 months, Respondent purchased
:' To be entitled to a hearing. Respondent must raise substantial or
material issues which would warrant setting aside the election. N.LRB. v.
Modine Manufacturing Co., 500 F.2d 914, 916 (C.A. 8, 1974). enfg. 203
NLRB 527 (1973). It is clear that, absent arbitrary action, this qualified right
to a hearing satisfies all statutory and constitutional requirements. Allied
Meat Company. 220 NLRB 27 (1975). Where, as here. Respondent failed to
goods valued in excess of $50,000, which were
shipped directly to it from points located outside the
State of Louisiana.
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
International Union, United Automobile, Aero-
space and Agricultural Implement Workers, UAW,
is a labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees at the
Employer's Shreveport, Louisiana, plant loca-
tions, on Flourney-Lucas and Greenwood Roads,
including shipping and receiving employees,
warehousemen, utility men, machine operators,
set up men, buffers, deburrers, material handlers,
forklift operators, cleanup men, chrome platers,
heat treaters, tool-and-die makers, grinders, weld-
ers, material dispatchers, tool crib attendants,
assembly men, spray painters, assembly special
mechanics, inspectors, mechanics, electricians,
building maintenance men, service employees,
print shop employees, model shop employees,
timekeepers, layout men, service parts shipping
employees, plant clerical employees, and lead-
men; excluding office clerical employees, profes-
sional employees, salesmen, draftsmen and clerk
in the Engineering Division, buyers, order clerks,
freight clerks, L.V.N. nurses, guards, and supervi-
sors as defined in the Act.
2. The certification
On April 30, 1976, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
raise substantial or material issues in the underlying representation case, it
has not been denied due process by the Board's failure to grant a hearing on
those issues. CSC Oil Company, 220 NLRB 19 (1975).
Western Electric Compyanr Hawthorne Works, 198 NLRB 623 (1972).
See Pittsburgh Plate Glass Co. v. N.LR B. 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69tc).
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 15, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on November 23, 1976, 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 May 19, 1976, and all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about May 26, 1976, and continuing at all times
thereafter to date, 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 Respondent has, since
May 26, 1976, 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, Respondent 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 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
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-
es 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 (1962), enfd. 328 F.2d
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), 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. Beaird-Poulan Division, Emerson Electric
Company, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees at
the Employer's Shreveport, Louisiana, plant loca-
tions, on Flourney-Lucas and Greenwood Roads,
including shipping and receiving employees, ware-
housemen, utility men, machine operators, set up
men, buffers, deburrers, material handlers, forklift
operators, cleanup men, chrome platers, heat treat-
ers, tool-and-die makers, grinders, welders, material
dispatchers, tool crib attendants, assembly men,
spray painters, assembly special mechanics, inspec-
tors, mechanics, electricians, building maintenance
men, service employees, print shop employees, model
shop employees, timekeepers, layout men, service
parts shipping employees, plant clerical employees,
and leadmen; excluding office clerical employees,
professional employees, salesmen, draftsmen and
clerk in the Engineering Division, buyers, order
clerks, freight clerks, L.V.N. nurses, guards, and
supervisors 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 November 23, 1976, 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 May 26, 1976, 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 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
990
EMERSON ELECTRIC COMPANY
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,
Beaird-Poulan Division, Emerson Electric Company,
Shreveport, Louisiana, 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 International Union
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All production and maintenance employees at the
Employer's Shreveport, Louisiana, plant loca-
tions, on Flourney-Lucas and Greenwood Roads,
including shipping and receiving employees,
warehousemen, utility men, machine operators,
set up men, buffers, deburrers, material handlers,
forklift operators, cleanup men, chrome platers,
heat treaters, tool-and-die makers, grinders, weld-
ers, material dispatchers, tool crib attendants,
assembly men, spray painters, assembly special
mechanics, inspectors, mechanics, electricians,
building maintenance men, service employees,
print shop employees, model shop employees,
timekeepers, layout men, service parts shipping
employees, plant clerical employees, and lead-
men; excluding office clerical employees, profes-
sional employees, salesmen, draftsmen and clerk
in the Engineering Division, buyers, order clerks,
freight clerks, L.V.N. nurses, guards, and supervi-
sors 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 plants at Flourney-Lucas and
Greenwood Roads in Shreveport, Louisiana, copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 15, 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 thereaf-
ter, 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 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
, 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 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 Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW, 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
at the Employer's Shreveport, Louisiana,
plant locations, on Flourney-Lucas and
Greenwood Roads, including shipping and
receiving employees, warehousemen, utility
men, machine operators, set up men, buffers,
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deburrers, material handlers, forklift opera-
tors, cleanup men, chrome platers, heat
treaters, tool-and-die makers, grinders, weld-
ers, material dispatchers, tool crib atten-
dants, assembly men, spray painters, assem-
bly special mechanics, inspectors, mechan-
ics, electricians, building maintenance men,
service employees, print shop employees,
model shop employees, timekeepers, layout
men, service parts shipping employees, plant
clerical employees, and leadmen; excluding
office clerical employees, professional em-
ployees, salesmen, draftsmen and clerk in
the Engineering Division, buyers, order
clerks, freight clerks, L.V.N. nurses, guards,
and supervisors as defined in the Act.
BEAIRD-POULAN
DIVISION, EMERSON
ELECTRIC COMPANY
992