Burd Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1164 (N.L.R.B. 1982)

DECISIONS OF NATIONAl LABOR RELATIONS BOARD
Burd Manufacturing Co., Inc. and General Team-
sters, Chauffeurs, Warehousemen and Helpers,
Building Materials, Heavy and Highway Con-
struction Employees Local Union 404, a/w In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 1-CA- 19307
May 28, 1982
DECISION AND ORDER
BY MEMBFHRS FANNING, JENKINS, ANI)
ZIMM RMAN
Upon a charge filed on December 1, 1981, by
General Teamsters, Chauffeurs, Warehousemen and
Helpers, Building Materials, Heavy and Highway
Construction Employees Local Union 404, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on Burd Manu-
facturing Co., Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
I, issued a complaint on December 21, 1981,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September 4,
1981, following a Board election in Case I-RC-
17142,' the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about October 9, 1981,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On December 30,
1981, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On February 1, 1981, counsel for the General
Counsel filed directly with the Board a Motion to
Transfer Case to the Board and for Summary Judg-
J Official notice is taken of the record in the representation proceed-
ing, Case I RC 17142, 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 LIV Electrosystem.s, 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); Intertype Co. v Penello, 269 F Supp 573
(D.C Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91
(7th Cir. 1968); Sec 9(d) of the NL RA, as amended
261 NLRB No. 173
ment. Subsequently, on February 4, 1982, 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 Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause and
a Cross-Motion for Summary Judgment.
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 its response to
the Notice To Show Cause, Respondent contests
the validity of the Union's certification. Respond-
ent admits its refusal to bargain, but denies that it
has thereby violated Section 8(a)(5) and (1) of the
Act. Specifically, Respondent contends that it has
no duty to bargain since the Union has at no time
represented an uncoerced majority of employees.
Respondent further alleges that the Board erred in
refusing to set aside the election in Case l-RC-
17142, requests that the General Counsel's Motion
for Summary Judgment be denied, and that its
Cross-Motion for Summary Judgment be granted.
In its Motion for Summary Judgment, the General
Counsel argues that there are no issues requiring a
hearing, and that Respondent is attempting to reliti-
gate issues which were raised and determined by
the Board in the underlying representation case.
We agree with the General Counsel.
Our review of the record, including the record
in Case 1-RC-17142, discloses that, after a hearing,
the Acting Regional Director for Region I issued
his Decision and Direction of Election on Febru-
ary 2, 1981. On February 26, 1981, the Regional
Director conducted a secret-ballot election, the re-
sults of which showed that a majority of valid
votes were cast for the Union. On March 2, 1981,
Respondent filed timely objections to conduct af-
fecting the results of the election, alleging in sub-
stance that the Union and its agents created an at-
mosphere of fear and coercion by making state-
ments that the Union would shut down Respond-
ent's operation, that the Union was connected with
and influenced by organized crime, and that the
Union threatened employees who refused to sup-
port it with violence and retaliation. After an in-
vestigation, on April 2, 1981, the Regional Director
issued a Supplemental Decision and Certification of
Representative in which he overruled Respondent's
objections in their entirety and certified the Union
as the exclusive representative of the employees in
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BURD MANUFACTURING CO., INC.
the appropriate unit. Subsequently, Respondent
filed a timely request for review of the Supplemen-
tal Decision and Certification of Representative.
On April 30, 1981, the Board issued a ruling in
which it granted Respondent's request for review
and ordered a hearing with respect to issues raised
in Respondent's Objections I and 2 which allege in
substance that the Union engaged in threats of vio-
lence and retaliation to employees who refused to
support the Union and that the Union created an
atmosphere of fear and coercion by stating that it
was connected to organized crime. The Board also
stayed the Regional Director's Certification of
Representative, and denied Respondent's request
for review in all other respects.
Pursuant to the Board's ruling, a hearing was
conducted on May 19, 1981, before a duly desig-
nated hearing officer. On June 15, 1981, the Hear-
ing Officer issued her report and recommendations
on objections which found that the alleged state-
ments were made by an employee who was not an
agent of the Union, that the statements were not at-
tributable to the Union, and that the third party
conduct did not warrant setting aside the election.
The Hearing Officer therefore recommended that
Respondent's objections be overruled in their en-
tirety and that a Certification of Representative
issue. On June 25, 1981, Respondent timely filed
exceptions to the Hearing Officer's report. On Sep-
tember 4, 1981, the Board issued a Decision and
Certification of Representative 2 in which it adopt-
ed the recommendations of the Hearing Officer and
certified the Union as the exclusive representative
of the employees in the appropriate unit.
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. 3
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
General Counsel's Motion for Summary Judgment
2 Not reported in volumes of Board Decisions.
a See Pittsburgh Plate Glass Co. v. VL.R.B., 313 U S 146, 162 (1941).1:
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
and deny Respondent's Cross-Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THF. BUSINESS OF RESPONDFtNT
Respondent is a Massachusetts corporation, with
its office and principal place of business located in
East Longmeadow, Massachusetts, and is engaged
in the manufacture and nonretail sale and distribu-
tion of screw machine products. Annually, Re-
spondent, in the course and conduct of its business
operations, purchases and receives at its East
Longmeadow, Massachusetts, facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the Commonwealth of
Massachusetts.
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 i ABOR ORGANIZATION INVOI.VED
General Teamsters, Chauffeurs, Warehousemen
and Helpers, Building Materials, Heavy and High-
way Construction Employees Local Union 404,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
I11. THIF UNFAIR I.ABOR PRACTIC S
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 regular full-time and part-time production
employees, including machine operators, expe-
ditors, quality control personnel, utility per-
sonnel, shipping and receiving personnel, and
set-up personnel employed by the Employer at
its 105 Industrial Drive, East Longmeadow,
Massachusetts location but excluding office
clerical employees, guards, foremen, and all
other supervisors as defined in the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On February 26, 1981, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 1, 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 September 4, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent '
Refusal
Commencing on or about October 2, 1981, and
at all times thereafter, the Union has requested Re-
spondent 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 October 9, 1981, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
October 9, 1981, 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-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. TIHI: I FF CT 01F 'HE UNFAIR ILABOR
PRACTICES UPON COMMERCI:
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, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding 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:
CONCI.USIONS OF LAW
1. Burd Manufacturing Co., Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. General Teamsters, Chauffeurs, Warehouse-
men and Helpers, Building Materials, Heavy and
Highway Construction Employees Local Union
404, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All regular full-time and part-time production
employees, including machine operators, expedi-
tors, quality control personnel, utility personnel,
shipping and receiving personnel, and set-up per-
sonnel employed by the Employer at its 105 Indus-
trial Drive, East Longmeadow, Massachusetts loca-
tion but excluding office clerical employees,
guards, foremen, and all other supervisors as de-
fined 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 September 4, 1981, the above-named
labor 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 9, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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 the aforesaid 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
1166
BURD MANUFACTURING CO., INC.
them in Section 7 of the Act, and thereby has en-
gaged 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 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,
Burd Manufacturing Co., Inc., East Longmeadow,
Massachusetts, 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
conditions of employment with General Teamsters,
Chauffeurs, Warehousemen and Helpers, Building
Materials, Heavy and Highway Construction Em-
ployees Local Union 404, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All regular full-time and part-time production
employees, including machine operators, expe-
ditors, quality control personnel, utility per-
sonnel, shipping and receiving personnel, and
set-up personnel employed by the Employer at
its 105 Industrial Drive, East Longmeadow,
Massachusetts location but excluding office
clerical employees, guards, foremen, and all
other supervisors as defined in the Act.
(b) 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) Post at its East Longmeadow, Massachusetts,
place of business copies of the attached notice
marked "Appendix." 4 Copies of said notice, on
I 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 Boardl" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals linforcing an
Order of the National Labor Relations Board "
forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICI- To EMPI.OYI IS
POSTErD BY ORDIR OF THE
NATIONAI LABOR RE A IONS BOARD
An Agency of the United States Government
WI: wiilI. NOr refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with General Teamsters, Chauffeurs, Ware-
housemen and Helpers, Building Materials,
Heavy and Highway Construction Employees
Local Union 404, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WF. WILI. 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 regular full-time and part-time produc-
tion employees, including machine opera-
tors, expeditors, quality control personnel,
utility personnel, shipping and receiving per-
sonnel, and set-up personnel employed by
the Employer at its 105 Industrial Drive,
East Longmeadow, Massachusetts location
but excluding office clerical employees,
guards, foremen, and all other supervisors as
defined in the Act.
BURD MANUFACTURING Co., INC.
1167