Dixon Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 698 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dixon Industries, Inc. and International Association
of Machinists and Aerospace Workers, AFL-
CIO. Case 17-CA-9631
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MFEMBERS
JENKINS AND PENEI.I.O
Upon a charge filed on May 1, 1980, by Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, and
duly served on Dixon Industries, Inc., herein called
Respondent or Dixon, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 17, issued a complaint on May
28, 1980, against Respondent, alleging that Re-
spondent 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 28,
1980, following a Board election in Case 17-RC-
8749, 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 11, 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 June 3, 1980,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On or about June 19, 1980, counsel for the Gen-
eral Counsel filed directly with the Board a Motion
for Summary Judgment. Subsequently, on July 1,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Official notice is taken of the record in the representation proceed-
ing, Case 17-RC-8749, as the term "record" is defined in Secs. 102.68
and 102 .6 9(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
(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); Follelt Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir 1968); Sec. 9(d) of the NLRA. as amended.
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, Respondent
admits that it has declined to recognize the Union
as the exclusive bargaining representative of its em-
ployees. However, Respondent justifies its refusal
to bargain by asserting that the Board incorrectly
decided the underlying representation case. The
General Counsel asserts that Respondent's admitted
objective in refusing to bargain is to test the
Board's Certification of Representative and that
there are no matters warranting a rehearing be-
cause all issues concerning the Union's certification
were litigated and determined in the underlying
representation case. We agree with the General
Counsel.
Our review of the record herein, including the
record in Case 17-RC-8749, discloses that, pursu-
ant to a Stipulation for Certification Upon Consent
Election approved by the Regional Director, an
election was conducted on June 14, 1979,2 and that
the tally of ballots furnished to the parties after the
election showed 30 votes for, and 25 votes against,
the Union, with 5 challenged ballots. On June 21,
Respondent filed objections to the election alleging
that the Union made material misrepresentations to
employees, including (1) a written unfair, mislead-
ing, and untruthful comparison of wages paid
Dixon employees and wages paid to employees of
Parmac, Inc., a competitor of Dixon whose em-
ployees are also represented by the Union, and (2)
a handout distributed by the Union which stated
that Parmac, Inc., employees were able to select
their vacation dates whereas Dixon employees
could not, although, in fact, the Parmac, Inc., em-
ployees' contract provided that a request for vaca-
tion dates had to be submitted for approval by
management. By order dated June 22, the Regional
Director directed a hearing on challenges and ob-
jections. On July 2 and 3, a hearing was conducted
concerning Respondent's objections and the five
ballots which had been challenged by the Union.
Thereafter, on July 25, the Hearing Officer issued
his Report on Challenges and Objections to the
Election with Findings and Recommendations in
which he recommended that (I) the challenge to
the ballots of Obie Estes, Steve Reedy, and John
Burris be sustained on the ground that they are su-
2 All dates hereinafter are in 1979 unless otherwise indicated.
252 NLRB No. 98
698
DIXON INDUSTRIES, INC.
pervisors; (2) the challenge to the ballots of Cal
Harvey, Jr., and George McDuffee be overruled;
(3) Respondent's objections be overruled in their
entirety; and (4) a certification of representative
issue. Thereafter, Respondent filed exceptions to
the Hearing Officer's report alleging that (1) Estes,
Reedy, and Burris were leadmen rather than super-
visors and that the challenges to their ballots
should be overruled and (2) the Hearing Officer
erred in recommending that the objections be over-
ruled. On February 28, 1980, the Board adopted
the Hearing Officer's findings and recommenda-
tions and certified the Union.3 Subsequently, by
letter dated March 10, 1980, the Union requested
that Respondent meet for purposes of collective
bargaining. On April 11, 1980, Respondent, by
letter, refused to bargain on grounds that the Deci-
sion and Certification of Representative issued by
the Board (reported at 247 NLRB No. 185), was in
error.
After a charge filed on May 1, 1980, by the
Union, the Regional Director for Region 17, on
May 28, 1980, issued a complaint alleging that Re-
spondent violated Section 8(a)(1) and (5) of the Act
by refusing to bargain with the above-certified
Union. The complaint alleged, inter alia, that Re-
spondent's reason for refusing to bargain with the
Union was to test the validity of the Board's Certi-
fication of Representative in Case 17-RC-8749. On
June 3, 1980, Respondent filed an answer to the
complaint admitting the material factual allegations
in the complaint, but alleging that its refusal to bar-
gain was based solely on its good-faith doubt con-
cerning the propriety of the Board's Certification
of Representative.
In his Motion To Transfer Proceeding to Board
and for Summary Judgment the General Counsel
alleges, essentially, that no factual issues litigable in
this proceeding are raised by the pleadings, and
that Respondent has admitted that it is refusing to
bargain in order to test the validity of the Board's
Certification of Representative. On July 1, 1980,
the Board transferred the case to itself and ordered
that Respondent show cause why the General
Counsel's Motion for Summary Judgment should
not be granted. Respondent has filed a response to
the Motion To Transfer Proceeding to Board and
for Summary Judgment in which it repeats the ar-
guments that it asserted in the underlying represen-
tation proceeding and, based on those arguments,
requests a hearing before an administrative law
judge.
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-
a Dixon Industries. Inc., 247 NLRB No 185 (1980)
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. 4
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.5 Accordingly, we grant the
Motion for Summary Judgment.6
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Kansas corporation, is engaged in
the manufacture of lawn mowing equipment at its
facility at Coffeyville, Kansas. Respondent, in the
course and conduct of its business operations
within the State of Kansas, annually purchases
goods and services valued in excess of $50,000 di-
rectly from sources located outside the State of
Kansas, and sells goods and services valued in
excess of $50,000 directly to customers located out-
side the State of Kansas.
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
International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.6 9(c)
5 Chairman Fanning did not participate in the Board's Decision in the
underlying representation proceeding, but agrees with his colleagues that
Respondent has not offered to adduce at a hearing any newly discovered
or previously unavailable evidence nor alleged any special circumstances
requiring the Board to reexamine that Decision. Accordingly, he will not
permit relitigation of issues raised in the representation proceeding
6 In its answer to the complaint Respondent, in addition to denying the
commission of any unfair labor practices, denies that the L;nion is now
and has been at all times since February 28, 1980, the representative of
the employees in the stipulated appropriate unit. However, the Board, in
its previoiusly referred to Decision and Certification of Representative,
disposed of these issues and they therefore cannot be relitigated herein
Teledyne. Landii Machine, 212 NLRB 73 (1974)
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II1. 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 hourly-paid
production and maintenance employees em-
ployed by Respondent at its Coffeyville,
Kansas, facility but excluding all office clerical
employees, professional employees, guards,
and supervisors as defined in the Act.
2. The certification
On June 14, 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 17, 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 February 28, 1980, 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's
Refusal
Commencing on or about March 10, 1980, 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 April 11, 1980, 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
April 11, 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-
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, 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).
he Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Dixon Industries, Inc., 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, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time hourly paid
production and maintenance employees employed
by Respondent at its Coffeyville, Kansas, facility,
but excluding all office clerical employees, profes-
sional employees, guards, and 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 February 28, 1980, 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 April 11, 1980, and at
all times thereafter, to bargain collectively with the
700
DIXON INDUSTRIES, INC.
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 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
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,
Dixon Industries, Inc., Coffeyville, Kansas, its offi-
cers, 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 International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time hourly-paid
production and maintenance employees em-
ployed by Respondent at its Coffeyville,
Kansas, facility but excluding all office clerical
employees, professional employees, guards and
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 Coffeyville, Kansas, facility copies
of the attached notice marked "Appendix. "7
7 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
Copies of said notice, on forms provided by the
Regional Director for Region 17, 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.
(c) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 International Association of Machinists
and Aerospace Workers, AFL-CIO, as the ex-
clusive 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 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 hourly-
paid production and maintenance employees
employed by Dixon Industries, Inc., at its-
Coffeyville, Kansas, facility but excluding all
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
DIXON INDUSTRIES, INC.
701