Keydata Systems

National Labor Relations Board - Board Decisions

Feb 8, 1994

313 N.L.R.B. 636 (N.L.R.B. 1994)

636
313 NLRB No. 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 By Order dated June 1, 1993, the Board (Member Devaney dis-
senting) denied the Respondent’s request for review of the Regional
Director’s Decision and Direction of Election. Subsequently, on No-
vember 22, 1993, the Respondent filed a motion to reopen the rep-
resentation case record to receive newly discovered and previously
unavailable evidence on the jurisdictional issue. Having duly consid-
ered the Respondent’s motion, we find it without merit. The only
new evidence cited by the Respondent consists of certain actions by
the Respondent’s principal client, the Internal Revenue Service
(IRS), during a strike which occurred between September 10 and
October 29, 1993, following the Union’s June 10, 1993 certification.
Such actions allegedly included: (1) insisting that the Respondent
timely complete all work during the strike, and that it do so without
transferring any work from the subject Beckley, West Virginia facil-
ity to any other facility; (2) subsequently issuing a ‘‘stop work’’
order when violence allegedly erupted against the temporary replace-
ments hired by the Respondent; and (3) thereafter lifting the stop
work order and ordering the Respondent to complete work by a stat-
ed time subject to cancellation of the contract. In agreement with the
Union, we find that, even if proven, none of these alleged events
would warrant reconsideration of the Board’s finding of jurisdiction
in the representation proceeding. As indicated by the Union, the fact
that the IRS imposed extensive security and other operational re-
quirements and restrictions on the Respondent and could cancel its
contract with the Respondent if any backlog occurred during a con-
certed refusal to work was fully considered by the Board in that pro-
ceeding. Thus, while it is true that the alleged events outlined above
occurred after the Board’s certification of the Union, they in fact
raise no issue which was not, in principle, considered by the Board
in the representation proceeding. Accordingly, the Respondent’s mo-
tion to reopen the representation proceeding is denied.
Keydata Systems, Inc. and United Mine Workers of
America. Case 9–CA–30895
February 8, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On August 13 and November 24, 1993, the Acting
General Counsel of the National Labor Relations
Board issued a complaint and amended complaint, re-
spectively, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by refusing the Union’s request to bargain follow-
ing the Union’s certification in Case 9–RC–16189.
(Official notice is taken of the ‘‘record’’ in the rep-
resentation proceeding as defined in the Board’s Rules
and Regulations, Secs. 102.68 and 102.69(g); Frontier
Hotel, 265 NLRB 343 (1982).) The Respondent filed
answers admitting in part and denying in part the alle-
gations in the complaint and amended complaint.
On December 8, 1993, the Acting General Counsel
filed a Motion for Summary Judgment. On December
14, 1993, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respond-
ent filed a response.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
recognize and bargain with the Union as the exclusive
collective-bargaining representative, but attacks the va-
lidity of the certification on the grounds that the Board
inappropriately asserted jurisdiction over the Respond-
ent and issued the certification in an inappropriate unit.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.1 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). Accordingly, we grant the Motion for
Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in providing data entry services to
other enterprises and governmental agencies from its
Beckley, West Virginia facility. During the 12-month
period ending May 31, 1993, the Respondent, in con-
ducting its operations, performed services valued in ex-
cess of $50,000 for the Internal Revenue Service, an
agency of the United States Government.
During this same period of time, the Respondent
purchased goods and materials valued in excess of
$10,000 from firms located outside the State of West
Virginia which were shipped directly to its West Vir-
ginia facility. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Union is
a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held June 1, 1993, the Union
was certified on June 10, 1993, as the collective-bar-
gaining representative of the employees in the follow-
ing appropriate unit:
All full-time and regular part-time data entry op-
erators and document control clerks, including
lead operators, employed by the Employer at its
Beckley, West Virginia facility, but excluding the
administrative assistant, quality control specialist,
computer operator, and all professional employ-
ees, guards and supervisors as defined in the Act.
637KEYDATA SYSTEMS
2 If 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.’’
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since June 24, 1993, the Union has requested the
Respondent to bargain, and, since June 28, 1993, the
Respondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after June 28, 1993, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Keydata Systems, Inc., Beckley, West
Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers
of America as the exclusive bargaining representative
of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time data entry op-
erators and document control clerks, including
lead operators, employed by the Employer at its
Beckley, West Virginia facility, but excluding the
administrative assistant, quality control specialist,
computer operator, and all professional employ-
ees, guards and supervisors as defined in the Act.
(b) Post at its facility in Beckley, West Virginia,
copies of the attached notice marked ‘‘Appendix.’’2
Copies of the notice, on forms provided by the Re-
gional Director for Region 9 after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, dissenting.
In the underlying representation proceeding, I dis-
sented from the Board’s denial of the Employer’s re-
quest for review of the Regional Director’s decision
asserting jurisdiction over the Employer. I therefore
dissent from my colleagues’ finding here that the Em-
ployer has violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United Mine
Workers of America as the exclusive representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time data entry op-
erators and document control clerks, including
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lead operators, employed by us at our Beckley,
West Virginia facility, but excluding the adminis-
trative assistant, quality control specialist, com-
puter operator, and all professional employees,
guards and supervisors as defined in the Act.
KEYDATA SYSTEMS, INC.