Lake Shore, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1975

219 N.L.R.B. 1091 (N.L.R.B. 1975)

LAKE SHORE, INC. 1091
Lake Shore, Inc. and Operating Engineers, Local
Union No. 3. Case 27-CA-4467
August 13, 1975
DECISION AND ORDER
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:
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
PENELLO
Upon a charge filed on March 27, 1975, by Oper-
ating Engineers, Local Union No. 3, herein called the
Union, and duly served on Lake Shore, Inc., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 27, issued a complaint on April
24, 1975, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor 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. Cop-
ies 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 com-
plaint alleges in substance that on March 7, 1975,
following a Board election in Case 27-RC-4743 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 March 27, 1975, 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 May 7, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint and asserting affirmative
defenses.
On May 19, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 29, 1975, 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. Respondent thereafter filed a response to
Notice To Show Cause, entitled "Response to Mo-
tion for Summary Judgment."
'Official notice is taken of the record in the representation proceeding,
Case 27-RC-4743, as the term "record" is defined in Secs . 102.68 and
102.69(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);
Follett Corp., 164 NLRB 387 (1967), enfd . 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
Ruling on the Motion for Summary Judgment
In its answer to the complaint Respondent denies
the representative status and certification of the
Union on the basis that two challenged ballots
should have been sustained because the voters had
been lawfully terminated prior to the election. In its
response to the Motion for Summary Judgment, Re-
spondent also alleges a hearing should be held on the
material factual issues raised in its answers to the
complaint and that to grant summary judgment
would deny it due process and prejudice its lawful
right to avail itself of judicial review of the Board's
Decision concerning the eligibility of the voters
whose ballots were challenged.
Our review of the record herein reveals that an
election was held pursuant to a stipulation for certifi-
cation upon consent election in Case 27-RC-4743 on
May 9, 1974. The tally of ballots showed that seven
ballots were cast for the Union, eight against, and
two challenged. The Union filed timely objections
alleging that statements violative of Section 8(a)(1) of
the Act were made and that employees Stocker and
Smith, whose ballots were challenged, were dis-
charged because of their union activities and there-
fore were eligible to vote.
The Regional Director, on May 31, 1974, issued a
report on challenges and objections to election, order
directing hearing, order of consolidation and notice
of hearing and recommendations to the Board in
which he recommended overruling the Union's ob-
jection concerning employer statements and ordered
a hearing to consider the issues raised by the chal-
lenged ballots and the unfair labor practice charge in
Case 27-CA-4089 alleging the discharges of Stocker
and Smith were unlawful.'
After a full hearing in the consolidated cases and
after receiving briefs, the Administrative Law Judge
issued a Decision on October 11, 1974, in which he
found Stocker and Smith were discharged in viola-
tion of Section 8(a)(3) of the Act and recommended
that the challenges to their ballots be overruled and
their ballots counted. Respondent filed exceptions
and a brief alleging the evidence did not support the
8(a)(3) finding and that the two employees were laid
2 On June 19 , 1974, the Regional Director issued an amended report on
objections to election which, in the absence of exceptions, the Board adopt-
ed in its order amending order of July 12, 1974.
219 NLRB No. 167
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off for economic reasons.
On February 14, 1975, the Board issued a Deci-
sion, Order, and Direction I in which it , after consid-
ering the record and the Administrative Law Judge's
Decision in light of the exceptions and briefs, af-
firmed the rulings, findings , and conclusions of the
Administrative Law Judge and adopted his recom-
mendations as to the challenged ballots . The Board
also directed the Regional Director for Region 27 to
open and count the ballots of employees Stocker and
Smith, to prepare a revised tally of ballots and to
issue the appropriate certification. The revised tally
of ballots showed the final tally with nine votes cast
in favor of and eight votes cast against the Union.
On March 7, 1975, the Regional Director for Region
27 issued a Certification of Representative certifying
the Union as exclusive representative of the employ-
ees in the appropriate unit.
It thus appears that Respondent's answer raises is-
sues previously considered and decided in the under-
lying representation case, and no hearing is required
thereon.
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.4
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
In its response to the Motion for Summary Judg-
ment , Respondent urges that a full hearing should be
held on material factual issues raised in its answer to
the complaint and that to grant summary judgment
would deny it due process and prejudice its right to
judicial review of the Board's Decision , Order, and
Direction in the underlying consolidated representa-
tion and unfair labor practice cases. Respondent's
allegations in its answers are substantially a repeti-
a 216 NLRB No. 105.
4See 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 106 .69(c).
3 In its answer Respondent denies the request and refusal -to-bargain alle-
gations of the complaint but admits two union letters requesting bargaining
and alleges no further requests to bargain by the Union have been made.
The letter of March 24 , 1975, from the Union appended to Respondent's
answer, while making a request to bargain , also notes that unfair labor
tion of its arguments made to the Administrative
Law Judge and the Board in the consolidated cases
below in which, after a full hearing, the material fac-
tual issues raised by the Respondent had been de-
termined. Therefore, Respondent having raised no
other issues, no hearing is necessary . Respondent has
had an opportunity to assert its contentions and
there is no denial of due process, where , as here,
there are no issues upon which another hearing
should be held.6 As the consolidated proceeding and
the granting of counsel for the General Counsel's
Motion for Summary Judgment do not impair
Respondent's access or right to judicial review,
Respondent's contention that it is hereby prejudiced
is lacking in merit.
Accordingly, the Motion for Summary Judgment
is granted.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Lake Shore , Inc., is a Michigan corporation and at
all times material herein has maintained an office
and place of business at Salt Lake City, Utah, where
it has been engaged at its plant there in the service
and distribution of heavy equipment . In the course
and conduct of its business operations in Salt Lake
City, Utah, Lake Shore, Inc., annually purchases and
receives goods and materials valued in excess of
$50,000, directly from points outside the State of
Utah.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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.
11. THE LABOR ORGANIZATION INVOLVED
Operating Engineers, Local Union No. 3, is a labor
organization within the meaning of Section 2(5) of
the Act.
practice charges would be filed , but makes the assurance that such charges
would be withdrawn upon compliance with the Board Order and
Respondent's commencement of bargaining. This is a clear continuing re-
quest to bargain . Respondent admits its letter of March 31, 1975, in which
it refuses to bargain . We therefore find the allegations of the request and
refusal to bargain to be true.
6 Wells Fargo Alarm Services, A Division of Baker Industries, Inc., 218
NLRB No. 25 (1975); Crest Leather Manufacturing Corporation, 167 NLRB
1085 (1%7); Lyman Printing and Finishing Company, a Division of M. Lowen-
stein iS Sons, 183 NLRB 1048 (1970).
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
LAKE SHORE, INC. 1093
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.
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All mechanics , apprentice mechanics, and
mechanics ' helpers employed by the Employer
at its Salt Lake City location ; but excluding of-
fice clerical employees , professional employees,
guards, and supervisors as defined in the Act.
2. The certification
On May 9, 1974, 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 27, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 7, 1975, 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 March 10, 1975, and at
all times thereafter, the Union has requested the 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 March 27, 1975, 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 March 27, 1975, 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, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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-
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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett 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. Lake Shore, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Operating Engineers, Local Union No. 3, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All mechanics, apprentice mechanics, and me-
chanics' helpers employed by the Employer at its Salt
Lake City location; but excluding office clerical em-
ployees, professional employees, guards, and supervi-
sors as defined in the Act constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since March 7, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 27, 1975, and at
all times thereafter, to bargain collectively with the
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing 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
rector for Region 27, 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 27, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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."
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Lake
Shore, Inc., Salt Lake City, Utah, 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 con-
ditions of employment with Operating Engineers,
Local Union No. 3, as the exclusive bargaining repre-
sentative of its employees in the following appropri-
ate unit:
All mechanics , apprentice mechanics, and
mechanics ' helpers employed by the Employer
at its Salt Lake City location, but excluding of-
fice clerical employees , professional 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 Salt Lake City, Utah , plant copies of
the attached notice marked "Appendix."' Copies of
said notice , on forms provided by the Regional Di-
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 Oper-
ating Engineers, Local Union No. 3, 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 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,
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 mechanics, apprentice mechanics, and
mechanics' helpers employed by the Employ-
er at its Salt Lake City location, but excluding
office clerical employees, professional em-
ployees, guards, and supervisors as defined in
the Act.
LAKE SHORE, INC.