W. R. Ames Co.

National Labor Relations Board - Board Decisions

May 18, 1970

182 N.L.R.B. 487 (N.L.R.B. 1970)

W. R. AMES CO.
W. R. Ames Company and International Association of
Machinists and Aerospace Workers, AFL-CIO, District
Lodge No. 87. Case 20-CA-5846
May 18, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN , AND JENKINS
Upon a charge filed by International Association of
Machinists and Aerospace Workers, AFL-CIO, District
Lodge No. 87, herein called the Union, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 20, issued a complaint
dated December 17, 1969, against the W. R. Ames
Company, herein called Respondent, alleging that
Respondent had engaged in and was engaging in unfair
labor practices 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, com-
plaint, and notice of hearing before a Trial Examiner
were duly served upon Respondent.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on October 13, 1969,
the Union was duly certified as the exclusive bargaining
representative of Respondent's employees in the unit
found appropriate by the Board and that, since on
or about November 14, 1969, and thereafter, Respondent
has refused and is refusing to recognize and bargain
with the Union as such exclusive bargaining representa-
tive, although the Union has requested and is requesting
it to do so. On about January 15, 1970, Respondent
filed its answer, which denied the commission of the
unfair labor practices alleged and raised the following
affirmative defenses:
1. "Respondent admits an election was held but
denies that an uncoerced or lawful majority of
the unit employees selected the Union as their
exclusive collective bargaining representative;"
2. "Respondent admits that the Union was certified
by the Board but denies that the certification was
lawful, proper or just and denies the Union is
the lawful, proper representative of [Respondent's]
unit employees;"
3. "Respondent asserts that the Acting Regional
Director's Report on Objections contains improper
conclusions of fact and law and improper recom-
mendations that the Company's objections in first
amended objections be overruled and the Union
be certified as the collective bargaining representa-
tive of the Company's unit employees;"
4. "Respondent contends further that the Union
was improperly certified in this matter and that
its objections in first amended objections should
be sustained because of the reasons and arguments
set forth in its exceptions to Regional Director's
Report on Objections and brief in support thereof;"
5. "Respondent contends that it has been denied
due process in not being allowed to have a hearing
487
regarding its objections in first amended objec-
tions. "
On February 18, 1970, the General Counsel filed with
the Board a Motion for Summary Judgment with attached
documents which were incorporated in the motion, sub-
mitting, in effect, that there are no issues of fact or
law requiring a hearing, and praying the issuance of
a Decision and Order finding the violations as alleged
in the complaint. Thereafter, on February 19, 1970,
the Board issued an order transferring case to the Board
and notice to show cause why the General Counsel's
Motion for Summary Judgment should not be granted.
Thereafter, Respondent filed an answer to notice to
show cause and request for oral argument.'
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
Upon the entire record in this case, the Board makes
the following:
Ruling on the Motion for Summary Judgment
The record before us establishes that on January
14, 1969, the Union filed a petition in Case 20-RC-8580,
seeking to represent certain employees of W. R. Ames
Company, herein called Respondent or Employer, at
its Fresno, California, location.
On February 10, 1969, the Regional Director for
Region 20, approved a stipulation for certification upon
consent election in the above case, providing for an
election in the following unit of employees:
All production and maintenance employees includ-
ing truckdrivers, and shipping and receiving clerks,
employed by the Employer at its Fresno, California,
location, excluding all other employees, guards,
and supervisors, as defined in the Act.
On May 23, 1969, an election by secret ballot 'in
the unit described above was conducted under the super-
vision of the Regional Director. The official tally of
ballots served upon the parties at the conclusion of
the election showed that of approximately 24 eligible
voters, 15 cast ballots for, and 7 cast ballots against
the Union. There were 2 challenged ballots, which were
insufficient to affect the results of the election. There-
after, about May 29, 1969, Respondent filed timely objec-
tions to the election, and on June 25, 1969, filed first
amended objections to conduct effecting results of the
election. On July 29, 1969, pursuant to an investigation
of the objections filed by Respondent , the Acting Region-
al Director issued a Report on Objections recommending
that the Board overrule the objections in their entirety
and issue an appropriate certification of representative.
On about August 15, 1969, the Respondent filed with
the Board its exceptions to the Acting Regional Director's
Report on Objections, and a brief in support of Employ-
er's exceptions to Acting Regional Director's Report
on Objections. On October 13, 1969, the Board issued
' In our opinion the record, the exceptions, and answer to our notice
to show cause adequately present the issues and positions of the parties
We therefore deny the motion
182 NLRB No. 69
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Decision and Certification of Representative adopting
the Acting Regional Director's findings and recommenda-
tions and certifying the Union as the exclusive represent-
ative of all employees in the above-described unit for
purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment. .
About November 6, 1969, the Union requested that
Respondent bargain collectively with it as the representa-
tive of the employees in the certified unit, but Respondent
refused. On November 19, 1969,'the Union filed the
charge upon which these proceedings are predicated.
In its answer to the Board's notice to show cause,
Respondent attacks the validity of the certification, con-
tending that its objections to the election held on May
23, 1969, should not have been overruled and that in
any event it should have been 'afforded a hearing ,on
its objections. The Respondent 'opposes the General
Counsel's Motion for Summary Judgment and submits
that said motion should be denied in its entirety; that
the complaint in this matter should be dismissed; and
that a hearing should be directed with regard to the
Company's objections to the election.
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein , a California corporation with a plant at Fresno,
California , and is engaged in the manufacture, sale,
wholesale , and installation of sprinkler irrigation sys-
tems. During the part year , the corporation purchased
and received at its Fresno , California , location, goods
valued in excess of $50 ,000 directly from suppliers locat-
ed outside the State of California.
Respondent admits, and we find , that Respondent
is, and at all times material herein has been , an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and
(7).
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 87, is a labor
organization within the meaning of Section 2 (5) of the
Act. ,
It is thus clear that Respondent's answer to the notice
to show cause questions the validity of the Board's
Decision and Certification of Representative on the same
ground heretofore presented to, the Board in its excep-
tions to the Acting Regional Director's Report on Objec-
tions. Respondent neither asserts that it has any newly
discovered evidence, nor sets out any special circum-
stances warranting reexamination by the Board of the
determination made in the representation proceedings
in Case 20-RC-8580.2 In essence, therefore, Respond-
ent's answer to notice to show cause attempts to relitigate
issues which were ipvolved in the prior representation
case and which have already been considered and reject-
ed by the Board. Accordingly, and as Respondent con-
cedes, its refusal to bargain, we find that Respondent
has not raised any issue which is properly triable in
the instant unfair labor practice proceeding.'
As all material issues have been previously decided
by the Board or are admitted by Respondent's answer
to this complaint, there are no matters requiring a hearing
before a Trial Examiner. Accordingly, the General Coun-
sel's Motion for Summary Judgment is granted. On
the basis of the record before us, the Board makes
the following: ,
2 In its unpublished Decision, the Board adopted,. pro forma, the
Acting Regional Director's recommendation that Objections 1, 3, 4,
and 8 be overruled in the absence of exceptions thereto Moreover,
the Board found that even if all of the facts alleged in the attachments
to the Employer's exceptions were true, such facts would not warrant
setting aside the election The Board therefore found that the Employer's
exceptions to the Acting Regional Director's recommendations that
Objections 2, 5, 6, and 7 be overruled do not warrant reversal of
the Acting Regional Director with respect thereto, or a hearing
',Pittsburgh Plate Glass Company v N L R B , 331 U S 146, Banco
Credito y Ahorro Ponceno, 167 NLRB 397
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees constitute a unit appropriate
for collective-bargaining purposes within the meaning
of Section 9(b) of the Act:
All production and maintenance employees includ-
ing truckdrivers, and shipping and receiving clerks,
employed by the Employer at its Fresno, California,
location, excluding all other employees, guards and
supervisors as defined in the Act.
2. The certification
On May 23, 1969, a majority of the employees of
Respondent in the appropriate unit, in a secret-ballot
election conducted under the supervision of the Regional
Director for Region 20, designated the Union as their
representative for the purposes of collective bargaining
with the Respondent, and on October 13, 1969, the
Union was certified as the collective-bargaining repre-
sentative of the employees in the said unit and continues
to be such representative.
B. The Request to Bargain and Respondent's Refusal
Commencing on or' about November 6, 1969, and
continuing to date, the Union has requested and is
requesting Respondent to bargain collectively with the
Union as the exclusive collective-bargaining representa-
tive of all the employees in the above-described unit.
Since November 14, 1969, and continuing, to date,
Respondent has refused, and continues to refuse, to
W. R. AMES CO.
bargain collectively with the Union as exclusive collec-
tive-bargaining representative of all employees in said
unit.
Accordingly, we find that that Union was duly certified
by the Board as the collective-bargaining representative
of the employees of the Respondent in the appropriate
unit described above in the Board's certification, and
that the Union at all times since October 13, 1969,
has been and now is the exclusive bargaining representa-
tive of all the employees in the aforesaid, unit, within
the meaning of section 9(a) of the Act. We further
find that Respondent has, since November 14, 1969,
refused to bargain collectively with the Union 'as the
exclusive bargaining representative of its employees in
the appropriate unit, and that by, such refusal, the
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 PRACTICE UPON
COMMERCE
The acts of Respondent set forth in section III, above,
occurring in connection with its operations as described
in section I, above, have a close, intimate, and substantial
relation 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 com-
merce.
THE REMEDY
Having found that Respondent has engaged 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 ; upon request, bargain collectively with
the Union as the exclusive representative of all employ-
ees in the appropriate unit ; and, if an understanding
is reached , embody such understanding in a signed agree-
ment.
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial year of certification as beginning
on the date the Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See: Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce Com-
pany dl bl a Lamar Hotel, 140 NLRB 226, 229, enfd.
328 F. 2d 600 (C.A. 5), cert. denied 379 U. S. 817; Burnett
Construction Company, 149 NLRB 1419, 1421, enfd.
350 F.2d 57 (C.A. 10).
, CONCLUSIONS OF LAW
1. The W. R. Ames Company , Fresno, California,
is an Employer engaged in commerce within the,meaning
of Section 2(6) and (7) of the Act.
2. International Association of Machinists and
Aerospace Workers , AFL-CIO, District Lodge No. 87,
489
is a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees
employed by the Employer at its Fresno, California,
location including truckdrivers, and shipping and receiv-
ing clerks, but excluding all other employees, 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 October 13, 1969, the above-named labor
organization has been the exclusive representative of
all employees in the aforesaid 'appropriate unit for the
purposes 'of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about November 44, 1969, and
it all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bargain-
ing representative of all the employees in the appropriate
unit , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the aforementioned refusal to bargain, Respond-
ent has interfered with, restrained, and coerced, and
is interfering with, restraining , and coercing employees
in the exercise of the rights guaranteed them in Section
7 of the Act, and, has thereby 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 meaning of Sec-
tion 2(6) and (7) of the Act.'
ORDER
Pursuant to Section' 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that Respondent, W. R. Ames
Company, Fresno, California, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages,
hours, and other terms and conditions of employment,
with International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No. 87,
as the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees includ-
ing truckdrivers, and shipping and receiving clerks,
employed by the Employer at its Fresno, California,
location, excluding all other employees, guards,
and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaran-
teed them by 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
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment, and, if an understanding
is reached, embody said understanding in a signed agree-
ment
(b) Post at its principle office at Fresno, California,
copies of the attached notice marked Appendix"
Copies of said notice, on forms provided by the Regional
Director for Region 20, shall, after being duly signed
by Respondent' s representative , be posted by Respond-
ent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in-e^nspicuous
places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced or covered by any other material
(c) Notify said Regional Director for Region 20, in
writing, within 10 days from the date of this Decision
and Order, what steps Respondent has taken to comply
herewith
' In the event this Order is enforced by a Judgment of the 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
Aerospace Workers, AFL-CIO District Lodge No
87, as the exclusive 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 representative of
all employees in the bargaining unit described
below, with respect to wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such understand-
ing in a signed agreement
The bargaining unit is
All production and maintenance employees
including truckdrivers, and shipping and
receiving clerks, employed by the Employer
at its Fresno, California, location, excluding
all other employees, guards, and supervisors
as defined in the Act
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 with
International Association of Machinists and
Dated By
W R AMES COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any questions concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 13050 Federal
Building , 450 Golden Gate Avenue, San Francisco, Cali-
fornia 94102, Telephone 415-556-3197