Nichols-Homeshields, Inc.

National Labor Relations Board - Board DecisionsNov 6, 1974

214 N.L.R.B. 682 (N.L.R.B. 1974)

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nichols-Homeshield , Inc. and Miscellaneous Ware- housemen and Production Employees Union, Local 781, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 13-CA-13165 November 6, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on April 8, 1974, by Miscella- neous Warehousemen and Production Employees Union, Local 781, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Nichols-Homeshield, Inc., herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 13, issued a complaint on May 31, 1974, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional 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 com- plaint alleges in substance that on February 12, 1974, following a Board election in Case 13-RC-13011, 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 April 5, 1974, and at all times there- after, 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 June 10, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and asserting four af- firmative defenses. On or about July 8, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 12, 1974, the Board issued an order transferring the proceed- 'Official notice is taken of the record in the representation proceeding, Case 13-RC-13011, 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 Elecirosystems, 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 378 (1967), enfd 397 F 2d 91 (C A 7, 1968). Sec 9(d) of the NLRA ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent 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 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 in its response to General Counsel's Motion for Summary Judgment and Motion for Reconsideration of Denial of Re- quest for Review, Respondent moves the Board to reconsider its prior determination on review and reit- erates the arguments previously advanced in its ob- jections to the election, in its exceptions to the Hear- ing Officer's report, and in its request for review of the Regional Director's Supplemental Decision and Certification of Representative in the underlying rep- resentation proceeding. The General Counsel con- tends that Respondent is seeking to relitigate issues previously litigated and determined in the represen- tation proceeding and that it raises no issues litigable herein. We agree with the General Counsel. Our review of the record herein, including the re- cord in Case 13-RC-13011, discloses that, after a hearing, the Regional Director directed an election which resulted in a vote of 7 to 3 in favor of the Union. Respondent filed timely objections to the conduct of the election and a supporting brief. The objections alleged, in substance, that the Board agent who conducted the election did not adequately safe- guard the ballot box and that she permitted nonob- server employees to sit at the observers' table and to comment on the probable voting trend during the balloting. After investigation of the objections, the Regional Director ordered a hearing which was con- ducted on September 12, 1973, before a Hearing Of- ficer for Region 13. On January 11, 1974, the Hear- ing Officer issued his Report on Objections in which he recommended that the objections be overruled in their entirety. Respondent filed timely exceptions to the Hearing Officer's report, arguing that the case should be transferred to the Board since it involved allegations of improper handling of the election by a Board agent under the supervision of the Regional Director. On February 12, 1974, the Regional Director issued a Supplemental Decision and Certification of Repre- sentative in which he, with some modifications, adopted the findings, conclusions, and recommenda- 214 NLRB No. 85 NICHOLS-HOMESHIELD, INC tions of the Hearing Officer as modified, and certi- fied the Union. Respondent thereafter filed a request for review of the Regional Director's decision in which it reiterated its objections to the election and arguments previously urged upon the Regional Di- rector. On March 7, 1974, the Board denied the re- quest for review on the ground that it raised no sub- stantial issues warranting review. In its answer to the complaint herein, Respondent questions the participation of a quorum of the Board in the denial of its request for review of the Regional Director's Supplemental Decision and Certification of Representative in Case 13-RC-13011 and con- tends on information and belief that the absence of a quorum invalidated the Union's certification. We find no merit in the Respondent's contention as the Board panel herein did participate in Respondent's request for review. Respondent further contends that the union certi- fication should be set aside since only 4 of the 15 eligible voters employed at the time of election are presently employed. Respondent's obligation to bar- gain extends for 1 year from the date of the Union's certification,' thus we find no merit in this conten- tion.' 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? 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. We shall, accordingly, grant the Motion for Summary Judgment.' z Ray Brooks v NLRB, 348 U S 96, 103 (1954) 3In light of our determination herein , Respondent 's Motion for Recon- sideration of Denial of Request for Review in Case 13-RC-13011 is denied 4 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 5 In its answer to the complaint , Respondent denies refusing to bargain upon request by the Union However , attached to the Motion for Summary Judgment are an affidavit by a business representative for the Union and a letter from the Respondent 's counsel to the Regional Office The affidavit essentially states that the business agent requested on numerous occasions to commence bargaining and was refused The letter from Respondent's counsel states that the Respondent was refusing to bargain , and intended to continue to do so, in order to test the Board's certification There being nothing to contradict the import of this evidence , we deem the allegations of 683 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation engaged in the manufacture and distribution of aluminum prod- ucts, operates a warehouse and office facility in West Chicago, Illinois. During the calendar year 1973, Re- spondent purchased and shipped goods valued in ex- cess of $50,000 directly from points outside of Illinois to its warehouse in Illinois. 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 assertjuris- diction herein. It. THE LABOR ORGANIZATION INVOLVED Miscellaneous Warehousemen and Production Employees Union, Local 781, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 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 warehouse employees employed by the Employer at its West Chicago, Illinois ware- house, but excluding office clerical employees, warehouse clerical employees, and all profes- sional employees, guards and supervisors as de- fined in the Act. 2. The certification On June 22, 1973, 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 13 designated the Union as their representative for the purpose of collective bargain- the complaint that Respondent refused to bargain to be true Teledyne, Lan- dis Machine, 212 NLRB No 11, fn 4 (1974), and cases cited therein 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on February 12, 1974, 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 February 19, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about April 5, 1974, 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 collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since April 5, 1974, 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- 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 (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. Nichols-Homeshield, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Miscellaneous Warehousemen and Production Employees Union, Local 781, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees employed by the Em- ployer at its West Chicago, Illinois, warehouse, but excluding office clerical employees, warehouse cleri- cal employees, and all professional employees, guards and supervisors as defined in the Act consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 12, 1974, the above-named la- bor 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 April 5, 1974, 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 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 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- NICHOLS-HOMESHIELD, INC. lations Board hereby orders that Respondent, Ni- chols-Homeshield, Inc., West Chicago, Illinois, its of- ficers, 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 Miscellaneous Ware- housemen and Production Employees Union, Local 781, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All warehouse employees employed by the Employer at its West Chicago, Illinois ware- house, but excluding office clerical employees, warehouse clerical employees, and all profes- sional employees, guards and supervisors as de- fined 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 office and warehouse in West Chi- cago, Illinois, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms pro- vided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 13, in 685 writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 Mis- cellaneous Warehousemen and Production Em- ployees Union, Local 781, International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive representative of the employees in the bargain- ing 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, wag- es, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All warehouse employees employed by the Employer at its West Chicago, Illinois ware- house, but excluding office clerical employees, warehouse clerical employees, and all profes- sional employees, guards and supervisors as defined in the Act. NICHOLS-HOMESHIELD, INC.