Harvey Engineering & Mfg., Corp.

National Labor Relations Board - Board Decisions

Feb 12, 1979

240 N.L.R.B. 699 (N.L.R.B. 1979)

HARVEY ENGINEERING & MANUFACTURING CORPORATION 699
Harvey Engineering & Manufacturing Corporation
and Southern Council of Industrial Workers,
United Brotherhood of Carpenters and Joiners of
America AFL-CIO. Case 26 CA-7466
February 12. 1979
DECISION AND ORDER
By MEMBERS FANNIN;. P:N[I 10. ANI) TRtE S[)DAI.
Upon a charge filed on October 23, 1978. by
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO. herein called the Union, and duly served
on Harvey Engineering & Manufacturing Corpora-
tion, herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 26, issued a complaint on
October 25, 1978, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 no-
tice of hearing before an Administrative Law Judge
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on July 19, 1978, fol-
lowing a Board election in Case 26 RC-5740, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about October 4, 1978, and at all times
thereafter, Respondent has refused, and continues 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 October 27, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On November 13, 1978, counsel for the General
Official notice is taken of the record n the representatin proceeding.
Case 26 RC 5740. as the term "record" is defined in Sees 102.68 and 102
.69(g) of the Board's Rules and Regulations. Series 8. as amended. See L7E
Electrorrstems, Inc. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th (Ir.
1968): Golden Age Beverage (Co, 167 NlRB 151 (1967). enfd. 415 f.2d 26
(5th Cir. 1969): Intertrpe Co, v. Penelli. 269 F.Supp. 573 ().('Va.. 1967):
Follet (Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th ( ir. 1968): Sec.
9(d) of the NLRA, as amended.
Respondent's request that all statements taken during the nsesligation of
the election objections be made part of the record is herehb denied The
Board has held that such material is not part of the record In either an
unfair labor practice case or its underlyin representaltion case W"uthin the
meaning of Sections 102.68 and 102.45(bh of the Rules and Regulations of
the Board. nor are such documents Inmaterl;ls related Ito the representltion
casel encompassed within the requirements of Section 91d) of the A.c." Sce
1.7TI Elertrovstemrv Inc.. lupra t 938 fn. 2: (,)ohtetl .4r c 8 Cltrnie (.). uprc
240 NLRB No. 88
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently. on November 29,
1978. the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Thereafter. on De-
cember 13, 1978, Respondent filed a response to No-
tice To Show Cause.
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 and response to No-
tice To Show Cause. Respondent: (I) denies the va-
lidity of the election certification based on certain of
its election objections alleging failure of the Board's
agent to maintain secrecy during the balloting, and
alleging electioneering by one of the observers during
the polling period; (2) contends that the refusal of
the Regional Director to hold a hearing on its objec-
tions constituted a denial of due process, and (3) re-
quests that the Board consider all statements taken
during the investigation of its objections and make
them part of the record, or at least review those state-
ments which Respondent has attached to its re-
sponse.2 In its motion to transfer case to the Board
and for summary judgment. counsel for the General
Counsel alleges that Respondent seeks to relitigate
issues previously considered in the underlying repre-
sentation case, and that there are no issues of fact
warranting a hearing. We agree.
Review of the record. including that of the repre-
sentation proceeding in Case 26-RC-5740, shows
that, pursuant to the Regional Director's Decision
and Direction of Election, an election was held on
June 1. 1978. The tally of ballots disclosed 31 votes
for, and 14 against the Union. leaving determinative
the 19 challenged ballots. Thereafter, on June 6.
1978, Respondent filed timely objections to the elec-
tion alleging that: (I) the secrecy of the ballot was
not preserved because one could see into the voting
booth: (2) a list of voters to be challenged by the
Union was kept in full view of the voters b its ob-
server, thereby destroying the privacy of the election;
and (3) the Board agent displayed partiality toward
the Union in the manner in which employees chal-
lenged by the Union were instructed on the chal-
lenged ballot procedure. On July 6. 1978, Respon-
dent untimely submitted an additional objection
See n 1. mtprri
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled "Amendment to Objections to Conduct of
Election." This objection raised the issue of the con-
duct of one of the company's election observers in
carrying a "vote yes" sign through the plant during
the polling period. After an investigation, on July 19,
1978, the Regional Director issued his Supplemental
Decision and Certification of Representative. In his
supplemental decision, the Regional Director over-
ruled Respondent's objections in their entirety 3' and
sustained the challenges to 4 of the ballots; the re-
maining 15 challenges, then, were no longer determi-
native of the results of the election. Therefore, in
view of the fact that the Union received a majority of
the valid ballots cast, the Regional Director issued a
certification of representative. In his decision, he
found that (I) there was insufficient evidence to show
that there was a significant breach in the secrecy of
the balloting; (2) there was no evidence that the
union observer utilized his list for other than its legit-
imate purpose of checking to insure the accuracy of
his challenges; (3) no evidence was presented to sup-
port Respondent's allegation of disparity in the treat-
ment of the employees challenged by Respondent
and the Union; and (4) the unsupported assertion by
one of Respondent's supervisors that its own ob-
server engaged in campaigning for the Union was
insufficient to set aside the election or to direct a
hearing.
Subsequently, on August 3, 1978, Respondent filed
a request for review with the Board as to the Region-
al Director's overruling those two of its election ob-
jections dealing with the Board agent's failure to pro-
vide a secret election and the campaign activity of
the Company's election observer. The Board, by tele-
graphic order dated September 1, 1978, denied the
request for review as it raised no substantial issues
warranting review.
In this proceeding, Respondent contends that it
was denied due process by the Regional Director's
refusal to hold a hearing on its objections. We find
no merit in this contention. It is well established that
a party is not entitled to a hearing on objections ab-
sent a showing of substantial and material issues.4
Here the Board found, in denying Respondent's re-
quest for review, that Respondent failed to make
such a showing. Further, the Board has held, with
3The Regional Director did not accept Respondent's amendment to ob-
jections to conduct of election as a timely filed objection. The same issue
raised therein, however, was discovered during the investigation and was
fully considered in his decision. For the reasons set forth in his dissent in
Dayton Tire & Rubber Co., 234 NLRB 504 (1978), Member Penello would
not have considered the objectionable conduct raised by this "objection" as
it was not timely submitted, and in his view should not have been pursued
when discovered by the Regional Director in his investigation.
4National Beryllia Corporation. 222 NLRB 1289 (1976), and cases cited
therein.
judicial approval, that evidentiary hearings are not
required in unfair labor practice cases and a sum-
mary judgment is appropriate where, as here, there
are no substantial or material facts to be de-
termined. 5 It thus appears that Respondent is at-
tempting to relitigate herein issues raised and re-
solved in the underlying representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.6
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding. Respondent does not offer to
adduce at a hearing any newly discovered or previ-
ously unavailable evidence nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is proper-
ly 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. THE BUSINESS OF RESPONDENT
Respondent, an Arkansas corporation with a place
of business in Hot Springs, Arkansas, is engaged in
the manufacture of sawmill equipment. During the
past 12 months, a representative period, the Em-
ployer purchased and received goods and materials
valued in excess of $50,000 directly from points lo-
cated outside the State of Arkansas. During the same
representative period, the Employer also sold and
shipped goods and materials valued in excess of
$50,000 directly to points located outside the State of
Arkansas.
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 juris-
diction herein.
Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976), and cases cited
therein.
6 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(f) and 102.69(c).
HARVEY ENGINEERING & MANUFACTURING CORPORATION 701
11. THE LABOR ORGANIZATION INVOLVED
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding draftsmen, but excluding office clerical,
professionals, over-the-road truckdrivers, guards
and supervisors as defined in the Act.
2. The certification
On June 1, 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 26, 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 July 19, 1978, and the Union contin-
ues 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 26. 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about October 4, 1978, 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 collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
October 4, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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
111, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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 600
(5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett 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
I. Harvey Engineering & Manufacturing Corpora-
tion is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding draftsmen, but excluding office clerical, pro-
fessionals, over-the-road truckdrivers, 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 July 19, 1978, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said appropriate unit for the purpose of collective
barg aining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about October 4, 1978, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 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 Re-
lations Board hereby orders that the Respondent,
Harvey Engineering & Manufacturing Corporation,
Hot Springs, Arkansas, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Southern Council of In-
dustrial Workers, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees, in-
cluding draftsmen, but excluding office clerical,
professionals, over-the-road truckdrivers, 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 Hot Springs, Arkansas, facility cop-
ies of the attached notice marked "Appendix." 7 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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 26, 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 ajudgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations BHoard" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
No-rlcE To EMPLOYEES
POSI ED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WI.l. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 production and maintenance employees,
including draftsmen, but excluding office cler-
ical, professionals, over-the-road truckdrivers,
guards and supervisors as defined in the Act.
HARVEY ENGINEERING & MANUFACTURING
CORPORATION