Cassidy, L. C., & Son, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1983

267 N.L.R.B. 578 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. C. Cassidy & Son, Inc. and Chauffeurs, Team-
sters, Warehousemen and Helpers Local Union
No. 135, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 25-CA-15367
26 August 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a charge filed on 16 March 1983 by Chauf-
feurs, Teamsters, Warehousemen and Helpers
Local No. 135, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, and duly
served on L. C. Cassidy & Son, Inc., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 25, issued a complaint on 23 March
1983, 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 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 3 February
1983, following a Board election in Case 25-RC-
7839, 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 4 March 1983, 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 I April 1983 Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint.
On 27 April 1983 counsel for the General Coun-
sel filed directly with the Board a "Motion to
Strike Portions of Respondent's Answer and
Motion for Summary Judgment." Subsequently, on
5 May 1983, the Board issued an order transferring
the proceeding to the Board and a Notice To
Show Cause why the General Counsel's motions
Official notice is taken of the record in the representation proceed-
ing, Case 25-RC-7839, as the term "record" is defined in Sees. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems, 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 NLRA, as amended.
267 NLRB No. 98
should not be granted. Respondent filed a response
to the Notice To Show Cause, and a Motion for
Summary Judgment on its own behalf.2
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 To Strike Portions of
Respondent's Answer
Paragraph 1 of the complaint alleges that the
original charge was filed by the Union on 16
March 1983, and served on Respondent by certi-
fied mail on or about 16 March 1983. In its answer,
Respondent contends that it is "without knowl-
edge" as to the allegations contained in paragraph
1 of the complaint, and therefore denies them. Inas-
much as the date of the filing appears on the
charge form and proof of service shows that the
charge was served on its filing date, 16 March
1983, we grant General Counsel's motion to strike
Respondent's answer to paragraph 1 of the com-
plaint.
Paragraph 5(b) of the complaint alleges that the
Union was certified by the Board as the exclusive
collective-bargaining representative of employees
in the appropriate unit described in paragraph 5(a);
in its answer, Respondent admits the Union's certi-
fication, but contends it was invalid based upon
Respondent's objections to the election. Paragraph
5(c) alleges that the Union has been and is now the
exclusive representative for the purposes of collec-
tive bargaining of employees in the unit described
in paragraph 5(a); Respondent's answer denies this
allegation of the complaint. Paragraph 5(d) alleges
that the Union, by letter, requested Respondent to
recognize and negotiate with it as the exclusive
bargaining representative of Respondent's employ-
ees; Respondent's answer admits the request for
bargaining, but denies that the Union is the duly
designated exclusive collective-bargaining repre-
sentative of Respondent's employees. The General
Counsel contends that Respondent's answers to the
allegations contained in paragraphs 5(b), (c), and
(d) should be struck. While, for the reasons stated
herein, we find that Respondent's answers to these
paragraphs do not present a meritorious defense to
the allegations of the complaint, we do not believe
they should be struck as they could be viewed as
an endeavor by Respondent to preserve its posi-
2 We have duly considered Respondent's Motion for Summary Judg-
ment. Inasmuch as, for reasons stated herein, we grant the General Coun-
sel's Motion for Summary Judgment, we hereby deny Respondent's
motion.
578
L. C. CASSIDY & SON, INC.
tion. See Rod-Ric Corp., 171 NLRB 922 (1968).
Accordingly, the General Counsel's motion to
strike paragraph 5(c) and portions of paragraphs
5(b) and (d) is denied.
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to
the Notice To Show Cause, Respondent admits its
refusal to bargain with the Union, but in substance
attacks the validity of the Union's certification on
the basis of its objections to the election in the un-
derlying representation proceeding. The General
Counsel argues that all material issues have been
previously decided. We agree with the General
Counsel.
A review of the record herein, including the
record in Case 25-RC-7839, reveals that, pursuant
to a Stipulation for Certification Upon Consent
Election, an election was held among the employ-
ees in the stipulated unit. The tally of ballots
showed that, of approximately 19 eligible voters,
11 cast valid ballots in favor of, and 6 against, the
Union; there were 2 challenged ballots, an insuffi-
cient number to affect the results. Thereafter, Re-
spondent filed timely objections to the election, al-
leging, in essence, that the Union's observer, wear-
ing an official observer's badge, was permitted to
leave the polls while the polls were open; that the
Union's observer talked to one or more eligible
voters outside the polling area prior to their having
voted; and that the Board agent conducting the
election, in the company of Respondent's observer,
left the polling area with the ballot box while the
polls were open. Following an investigation, the
Regional Director, on 13 October 1982, issued a
report in which he recommended that Respond-
ent's objections be overruled and the Union be cer-
tified. Thereafter, Respondent timely filed excep-
tions to the Regional Director's report. On 3 Feb-
ruary 1983 the Board issued a Decision and Certifi-
cation of Representative which adopted the Re-
gional Director's report (not included in volumes
of Board Decisions).
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
s 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).
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. 4
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, an Indiana corporation maintaining its prin-
cipal office and place of business in Indianapolis,
Indiana, engaged in the business of sale and instal-
lation of residential and apartment building insula-
tion. Respondent, during the 12 months preceding
issuance of the complaint, a representative period,
in the course and conduct of its operations, derived
gross revenues in excess of $500,000, and received
at its Indianapolis, Indiana, facility products, goods,
and materials valued in excess of $50,000 directly
from points outside the State of Indiana.
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
Chauffeurs, Teamsters, Warehousemen and Help-
ers Local Union No. 135, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
4 With respect to Respondent's contention that, in certifying the
Union, the Board failed to review all of the evidence submitted to the
Regional Director, we note the Board has addressed this issue of the
completeness of the record in representation cases in Frontier Hotel, 265
NLRB 343 (1982), in which it cited its newly revised regulation, Sec.
102.69(gXlXii) of the Board's Rules and Regulations, providing,
mhe record in objections cases where no hearing is held consists of
the objections which were filed, the regional director's report or de-
cision, all documentary evidence, except statements of witnesses,
relied upon by the regional director in his report or decision, any
briefs . .. and any other motions, rulings, or orders of the regional
director.
It is clear, therefore, that failure to transmit statements of wit-
nesses to the Board with the record in the representation case does
not mean that the record before the Board was incomplete and does
not invalidate the subsequent certification. Accordingly, we find
without merit this contention of Respondent.
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. 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 full-time and regular part-time installers
and helpers, mechanics and semi-drivers em-
ployed by Respondent at its 1918 South High
School Road, Indianapolis, Indiana facility;
BUT EXCLUDING all office clerical employ-
ees, all professional employees, all sales em-
ployees, all supervisors and guards as defined
in the Act, and all other employees.
2. The certification
On 3 September 1982 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 25, 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 3 February 1983, 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 3 March 1983, 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 4 March 1983, and continuing
at all times thereafter to date, Respondent has re-
fused, 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
4 March 1983, 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(aX5) 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, 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 ensure 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 Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817; Burnett Construction Co., 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. L. C. Cassidy & Son, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Chauffeurs, Teamsters, Warehousemen and
Helpers Local Union No. 135, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time installers
and helpers, mechanics and semi-drivers employed
by Respondent at its 1918 South High School
Road, Indianapolis, Indiana, facility; BUT EX-
CLUDING all office clerical employees, all profes-
sional employees, all sales employees, all supervi-
sors and guards as defined in the Act, and all other
employees, constitute a unit appropriate for the
580
L. C. CASSIDY & SON, INC.
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since 3 February 1983 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 4 March 1983, 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) and (1)
of the Act.
6. 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,
L. C. Cassidy & Son, Inc., Indianapolis, Indiana, 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 Chauffeurs, Team-
sters, Warehousemen and Helpers Local Union No.
135, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All full-time and regular part-time installers
and helpers, mechanics and semi-drivers em-
ployed by Respondent at its 1918 South High
School Road, Indianapolis, Indiana facility;
BUT EXCLUDING all office clerical employ-
ees, all professional employees, all sales em-
ployees, all supervisors and guards as defined
in the Act, and all other employees.
(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 1918 South High School Road, In-
dianapolis, Indiana, facility copies of the attached
notice marked "Appendix." 5 Copies of said notice,
on forms provided by the Regional Director for
Region 25, 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 conspic-
uous 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 25,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
a 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 Pursu-
ant 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 Chauffeurs, Teamsters, Warehousemen
and Helpers Local Union No. 135, a/w Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive representative of the employ-
ees in the bargaining unit described below.
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 full-time and regular part-time installers
and helpers, mechanics and semi-drivers em-
ployed by us at our 1918 South High School
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Road, Indianapolis, Indiana facility; BUT
EXCLUDING all office clerical employees,
all professional employees, all sales employ-
ees, all supervisors and guards as defined in
the Act, and all other employees.
L. C. CASSIDY & SON, INC.
582