Season-All Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1284 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Season-All Industries, Inc. and District Lodge No.
63, International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 6-CA-
13393
August 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on April 29, 1980, by Dis-
trict Lodge No. 63, International Association of
Machinists and Aerospace Workers, AFL-CIO,
herein called the Union, and duly served on
Season-All Industries, Inc., herein called Respond-
ent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 6, issued a complaint and notice of hearing
on May 12, 1980, against Respondent, alleging that
Respondent has 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on April 3,
1980, following a Board election in Case b-RC-
8450, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about April 24, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On or about May 22, 1980,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On June 6, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 12, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
Official notice is taken of the record in the representation proceed-
ing, Case 6-RC-8450, 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 Elecrrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Inlertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
250 NLRB No. 159
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 the response
to the Notice To Show Cause, Respondent essen-
tially contests the validity of the Union's certifica-
tion. Although Respondent admits its refusal to
bargain, Respondent denies that it thereby violated
Section 8(a)(5) and (1) of the Act. Specifically, Re-
spondent contends that the Union should not have
been certified as the collective-bargaining repre-
sentative of its employees because the Regional Di-
rector directed an election in an inappropriate unit.
Respondent also contends that the Union should
not have been certified because it engaged in objec-
tionable conduct which affected the results of the
June 29, 1980, election, and contends that newly
discovered evidence that the employee engaged in
the allegedly objectionable conduct was an agent
of the Union creates an issue of fact requiring a
hearing. Finally, Respondent claims that it was
denied due process in that the Regional Director
did not conduct a complete investigation of its ob-
jection.
In the Motion for Summary Judgment, the Gen-
eral Counsel argues that there are no issues requir-
ing a hearing, and that Respondent is attempting to
relitigate issues which were raised and determined
by the Board in the underlying representation case.
We agree with the General Counsel. Review o. the
record, including the record in Case 6-RC-8450,
shows that on May 16, 1979, after a hearing and
the submission of a brief by Respondent, the Re-
gional Director issued a Decision and Direction of
Election. On May 30, 1979, Respondent filed with
the Regional Director a motion for reconsideration
of the Decision and Direction of Election, which
was denied by the Regional Director on June 1,
1979. On June 5, 1979, Respondent filed with the
Board a request for review of the Decision and Di-
rection of Election wherein it contended that the
unit was inappropriate. On June 28, 1979, the
Board denied the request for review.
On June 29, 1979, pursuant to the Decision and
Direction of Election, an election by secret ballot
was conducted. The tally of ballots shows that of
approximately 79 eligible voters 75 cast ballots, of
which 36 were cast for the Union, 9 were cast for
the Intervenor, International Union of Electrical,
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SEASON-ALL INDUSTRIES, INC
Radio and Machine Workers, AFL-CIO-CLC,
and 25 were cast for neither labor organization.
There were five challenged ballots, sufficient in
number to affect the results of the election.
On July 5, 1979, Respondent filed timely objec-
tions to conduct affecting the results of the elec-
tion. The objections alleged, inter alia, that, during
a substantial part of the period designated for
voting, Roy Sadler, an alleged agent of the Union,
engaged in electioneering in a corridor within a
few feet of the door to the conference room in
which voting was taking place. On September 25,
1979, the Regional Director issued a Supplemental
Decision on Objections and Challenges and Order
Directing Hearing on Certain Challenges in which
he found Respondent's objections without merit.
On September 28, 1979, Respondent moved for re-
consideration of its objections, which was denied
by the Regional Director on October 1, 1979. On
October 10, 1979, Respondent filed a request for
review of the Regional Director's Supplemental
Decision on Objections and Challenges and Order
Directing Hearing on Certain Challenges, which
was denied by the Board on November 13, 1979.
Pursuant to the aforementioned Order Directing
Hearing on Certain Challenges, a hearing was held
on December 4 and 5, 1979. On January 4, 1980,
the Hearing Officer issued and served on the par-
ties her Hearing Officer's Report on Challenged
Ballots in which she recommended that the chal-
lenges to the ballots of two employees be opened
and counted. On March 3, 1980, the two chal-
lenged ballots were counted and, thereafter, on
April 3, 1980, the Regional Director certified the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit.
By letter dated April 24, 1980, Respondent ex-
pressly stated to the Union that it does not recog-
nize the Union as the certified representative of its
office and technical employees, because it believes
that the certification issued by the Regional Direc-
tor is invalid. As note above, Respondent refused,
and continues to refuse, to recognize and bargain
with the Union, and to provide requested informa-
tion to the Union, because of its belief that the Re-
gional Director directed an election in an inappro-
priate unit and failed adequately to consider its ob-
jections to the June 29, 1979, election. It thus ap-
pears that Respondent is attempting to raise,
herein, issues which were raised and determined in
the underlying representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and 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
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. Accordingly, we 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 Delaware corporation, with an
office and place of business located in Indiana,
Pennsylvania, where it is engaged in the manufac-
ture and nonretail sale and distribution of doors
and windows. During the 12-month period ending
April 30, 1980, which period is representative of all
times material herein, Respondent sold and shipped
from its Indiana, Pennsylvania, facility products,
goods, and materials valued in excess of $50,000 di-
rectly to points outside the Commonwealth of
Pennsylvania. Additionally, during the same 12-
month period, Respondent purchased and received
at its Indiana, Pennsylvania, facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the Commonwealth of
Pennsylvania.
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 jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 63, International Association
of Machinists and Aerospace Workers, AFL-CIO,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2 See Pirtsburgh Plare Glass Co. v N.L.R.B., 313 U.S 146, 162 11941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c)
1285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All office clerical and technical employees, in-
cluding all data processing employees, em-
ployed at Respondent's Indiana, Pennsylvania,
facility; excluding all production and mainte-
nance employees, watchmen, transportation
department employees, confidential employees
and guards, professional employees and super-
visors as defined in the Act.
2. The certification
On June 29, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 6, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on April 3, 1980, 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 April 7, 1980, and at
all times thereafter, the Union has requested Re-
spondent to provide certain relevant and necessary
information for the purpose of collective bargain-
ing3 and to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 24, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to provide the re-
quested information, and 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
April 24, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
I The Union seeks information relating to the following subjects:
names, addresses, seniority dates, current job classifications, and rates of
pay of all unit employees; job descriptions; Respondent's merit rating
program; and existing practices and policies relating to fringe benefits.
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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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, provide the Union with the requested
relevant and necessary information for the purpose
of collective bargaining and bargain collectively
with the Union as the exclusive representative of
all employees in the appropriate unit, and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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;
Burnett 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
1. Season-All Industries, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District Lodge No. 63, International Associ-
ation of Machinists and Aerospace Workers, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All office clerical and technical employes, in-
cluding all data processing employees, employed at
Respondent's Indiana, Pennsylvania, facility, ex-
cluding all production and maintenance employees,
watchmen, transportation department employees,
confidential employees and guards, professional
1286
SEASON-ALL INDUSTRIES, INC
employees 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 April 3, 1980, 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 April 24, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By refusing on or about April 24, 1980, and at
all times thereafter, to furnish the above-named
labor organization with certain relevant and neces-
sary information, Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
7. By the aforesaid refusal to bargain and refusal
to provide relevant and necessary information, Re-
spondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and there-
by has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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,
Season-All Industries, Inc., Indiana, Pennsylvania,
its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with District Lodge No.
63, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All office clerical and technical employees, in-
cluding all data processing employees, em-
ployed at Respondent's Indiana, Pennsylvania,
facility; excluding all production and mainte-
nance employees, watchmen, transportation
department employees, confidential employees
and guards, professional employees and super-
visors as defined in the Act.
(b) Refusing to furnish the above-named labor
organization with the relevant and necessary infor-
mation requested by it for the purpose of collective
bargaining.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Upon request, provide the above-named labor
organziation with the relevant and necessary infor-
mation requested by it for the purpose of collective
bargaining.
(c) Post at its Indiana, Pennsylvania, facility
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 6, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a ULnitd
Statcs Court of Appeals. the words in the noticc reading "Posted b)
Order of the National Labor Relations Board" shall read "Po(tcd Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor 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
1287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with District Lodge No. 63, International As-
sociation of Machinists and Aerospace Work-
ers, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit de-
scribed below.
WE WILL NOT refuse to provide information
requested by the Union which is relevant to
and necessary for the purpose of collective
bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All office clerical and technical employees,
including all data processing employees, em-
ployed by us at our Indiana, Pennsylvania,
facility; excluding all production and mainte-
nance employees, watchmen, transportation
department employees, confidential employ-
ees and guards, professional employees and
supervisors as defined in the Act.
WE WILL, upon request, provide the above-
named Union with information requested by it
for the purpose of collective bargaining.
SEASON-ALL INDUSTRIES, INC.
1288