Bell & Howell Co.

National Labor Relations Board - Board Decisions

Sep 29, 1975

220 N.L.R.B. 881 (N.L.R.B. 1975)

BELL & HOWELL COMPANY
Bell & Howell Company and Local 399 , International
Union of Operating Engineers, AFL-CIO. Case
13-CA-13680
September 29, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on October 23, 1974, by Local
399, International Union of Operating Engineers,
AFL-CIO, herein called the Union, and duly served
on Bell & Howell Company, 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 and notice of hearing
on November 22, 1974, against Respondent , alleging
that Respondent had 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 , complaint , and no-
tice 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 September 20,
1974, following a Board election in Case
13-RC-13022 the Union was duly certified as the
exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;1 and that, commencing on or about October 16,
1974, and at all times thereafter , Respondent has re-
fused , and continues to date to refuse , to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On December 20, 1974,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On January 14, 1975, counsel for the General
Counsel filed directly with the Board a motion to
transfer proceedings to the Board and motion for
summary judgment. On January 24, 1975, the Union
also filed a motion for summary judgment. Subse-
quently, on April 1, 1975, the Board issued an order
transferring the proceeding to the Board and a notice
to show cause why the General Counsel's and the
Official notice is taken of the record in the representation proceeding,
Case 13-RC- 13022 , 213 NLRB 407 (1974), 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 378 (1967), enfd 397 F.2d 91
(C.A. 7, 1968); Sec. 9(d) of the NLRA.
881
Union's motions for summary judgment should not
be granted. On May 6, 1975, Respondent filed a re-
sponse 'to notice to show cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary Judgment
In its answer to the complaint and response to the
notice to show cause, Respondent attacks certain of
the determinations made by the Board in the under-
lying representation proceeding, Case 13-RC-13022.
Our review of the record indicates that on January
15, 1974, the Regional Director issued his Decision
and Direction of Election in which he found, con-
trary to the Respondent, that a unit of stationary en-
gineers and stationary firemen was appropriate and
that Respondent was not prejudiced by certain rul-
ings made by the Hearing Officer and the Regional
Director as to the production of documents and the
eliciting of testimony at the hearing. Respondent
filed with the Board a timely request for review with
respect to these issues. However, by telegraphic order
dated February 12, 1974, the Board denied the re-
quest for review on the ground that it raised no sub-
stantial issues warranting review.
The Union received a majority of the votes cast at
an election held on February 15, 1974. Thereafter, on
February 20, 1974, the Respondent filed with the Re-
gional Director a motion to disqualify the Union as
collective-bargaining representative on the ground
that it discriminated on the basis of sex. On March 8,
1974, the Regional Director transferred this matter to
the Board for decision. On September 29, 1974, the
Board denied Respondent's motion and certified the
Union.2
It is the General Counsel's and the Union's basic
position that all issues in dispute were decided in the
representation proceeding and that they are entitled
to summary judgment as a matter of law. As reflect-
ed in its answer to the complaint and its response to
the notice to show cause, Respondent's basic defense
to the alleged 8(a)(5) and (1) violation is that the
Board erred in certifying the Union because the
Union allegedly discriminates on the basis of sex, be-
cause the certified unit is inappropriate, and because
evidentiary rulings made by the Hearing Officer and
by the Regional Director were erroneous. These mat-
ters raised here were fully considered by the Board in
the representation proceeding and resolved adversely
to the Respondent.
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
2 Bell & Howell Company, 213 NLRB 407 (1974).
220 NLRB No. 147
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 .4 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 motions for summary judgment.'
On the basis of the entire record, the Board makes
the following:
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 stationary engineers and stationary firemen
in department 2889 at the Employer's facility at
7100 N. McCormick Blvd., Lincolnwood, Illi-
nois, but excluding all office clerical employees,
plant clerical employees, guards and supervisors
as defined in the Act, and all other employees.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Bell & Howell Company, is a corpo-
ration duly organized under, and existing by virtue
of, the laws of the State of Illinois with offices and
places of business in Lincolnwood and Evanston, Il-
linois, where it has been at all times material herein
engaged in the manufacture and distribution of pho-
tographic and related miscellaneous products. Dur-
ing the past 12 months, Respondent, in the course
and conduct of its business operations, sold and dis-
tributed from its Illinois facilities products valued in
excess of $50,000 directly to points outside the State
of 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 assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 399 , International Union of Operating Engi-
neers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 1162 (1941);
Rules and Regulations of the Board, Secs . 102.67(f) and 102 .69(c).
Members Fanning and Penello , having certified the Union herein for
the reasons set forth in the dissenting opinion in Bekins Moving & Storage
Co. of Florida, Inc., 211 NLRB 138 (1974), concur in the result herein.
s Member Jenkins, while adhering to the views concerning sex discrimina-
don expressed in his dissent in the representation proceeding , agrees that
that proceeding was dispositive of the issue and thus joins in the judgment
herein.
2. The certification
On February 15, 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 13, 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 September 20, 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 October 3, 1974, 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 October 16, 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
collective bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since October 16, 1974, and at all times thereafter,
refused 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
BELL & HOWELL COMPANY 883
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. Bell & Howell Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 399, International Union of Operating
Engineers , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All stationary engineers and stationary firemen
in department 2889 at the Employer's facility at 7100
N. McCormick Blvd., Lincolnwood, Illinois, but ex-
cluding all office clerical employees, plant clerical
employees, guards and supervisors as defined in the
Act, and all other employees, constitute a unit appro-
priate for the purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act.
4. Since September 20, 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 October 16, 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-
lations Board hereby orders that Respondent, Bell &
Howell Company , Lincolnwood , Illinois , 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 Local 399, International
Union of Operating Engineers , AFL-CIO, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit:
All stationary engineers and stationary firemen
in department 2889 at the Employer 's facility at
7100 N. McCormick Blvd., Lincolnwood, Illi-
nois , but excluding all office clerical employees,
plant clerical employees, guards and supervisors
as defined in the Act , and all other employees.
(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 employement , and, if an under-
standing is reached , embody such understanding in a
signed agreement.
(b) Post at its Lincolnwood , Illinois, plant copies
of the attached notice Marked "Appendix."6 Copies
6 In the event that this Order is enforced by a Judgment of a United
Continued
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's authorized 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 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
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Local
399, International Union of Operating Engi-
neers, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit de-
scribed 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
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All stationary engineers and stationary fire-
men in department 2889 at the Employer's fa-
cility at 7100 . N. McCormick Blvd., Lin-
colnwood, Illinois, but excluding all office
clerical employees, plant clerical employees,
guards and supervisors as defined in the Act,
and all other employees.
BELL & HOWELL COMPANY