Durakut International Corp.

National Labor Relations Board - Board Decisions

Dec 29, 1980

253 N.L.R.B. 982 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Durakut International Corp. and Local 854, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
29-CA-8226
December 29, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on August 12, 1980, by
Local 854, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, and duly served on
Durakut International Corp., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 29, issued a complaint and notice of
hearing on September 23, 1980, against Respond-
ent, 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 July 9, 1980,
following a Board election in Case 29-RC-4772,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about July 28, 1980, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On September 26, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On October 3, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 10,
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
' Official notice is taken of the record in the representation proceed-
ing, Case 29-RC-4772, as the term "record" is defined in Secs 10268
and 102.6 9(g) of the Board's Rules and Regulations, Series 8, as amended.
See LI'V 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 FSupp. 573
(D.C.Va. 1967); Follettrr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA. as amended.
253 NLRB No. 119
thereafter filed an affidavit in opposition to the
Motion for Summary Judgment. Respondent also
filed a contemporaneous amendment to its answer
to the complaint. On October 24, 1980, the General
Counsel filed a response to the amendment to the
answer in which he contended that the Motion for
Summary Judgment should still be granted. Also,
on October 24, 1980, the Charging Party filed an
affidavit in support of the General Counsel's
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 and amended answer to the com-
plaint, Respondent admits most of the operative
factual allegations of the complaint but apparently
denies that in a secret-ballot election conducted on
November 30, 1979, a majority of its employees in
an appropriate unit designated the Union as their
representative for purposes of collective bargain-
ing, and that on July 9, 1980, the Board certified
the Union as bargaining representative in that unit;
denies that, on July 28, 1980, Respondent refused
and since that date has continued to refuse to bar-
gain with the Union; and denies the conclusionary
averments of the complaint. In its affidavit in oppo-
sition to Motion for Summary Judgment, Respond-
ent asserts that the Regional Director erred in sus-
taining the challenge to Dolores Kowalski's ballot
on the basis that she was an executive secretary, a
classification expressly excluded in the parties' Stip-
ulation for Certification Upon Consent Election,
since the Regional Director made his determination
without a hearing. The General Counsel contends
that Respondent is improperly seeking to relitigate
issues which were raised and decided in the under-
lying representation case. We agree.
Review of the record herein, including the
record in Case 29-RC-4772, reveals that, on No-
vember 30, 1979, an election was held in which the
tally was three votes for the Union and one vote
against the Union, with two determinative chal-
lenged ballots. On May 19, 1980, the Regional Di-
rector issued a Report on Challenged Ballots in
which he recommended overruling the challenge
to the ballot of Carmela Mancuso but sustaining
the challenge to the ballot of Dolores Kowalski on
the basis that she was an executive secretary, a
classification expressly excluded from the unit. This
recommendation resulted in the Union's receiving a
majority of the valid ballots cast in the election.
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DURAKUT INTERNATIONAL CORP.
Thereafter, Respondent filed exceptions to the
Regional Director's report. On July 9, 1980, the
Board adopted the Regional Director's findings
and recommendations, expressly denied Respond-
ent's request for a hearing on the issue of Dolores
Kowalski's classification as executive secretary as
raising no substantial issues warranting a hearing,
and issued a Certification of Representative 2 in the
unit described in the Stipulation for Certification
Upon Consent Election.
In its opposition to the Motion for Summary
Judgment, Respondent again asserts that the Re-
gional Director was in error in recommending that
the challenge to Dolores Kowalski's ballot be sus-
tained without a hearing first being held on her
status. It therefore appears that in this proceeding
Respondent is attempting to relitigate issues fully
litigated and finally determined in the representa-
tion proceeding.
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
Motion for Summary Judgment. 4
On the basis of the entire record, the Board
makes the following:
2 Not reported in hound volumes of Board Decisions
3 See Piusburgh Plate Glass Co. .LR.B.. 313 U.S. 146. I62 (1941).
Rules and Regulations of the Board. Secs 102 67(f) and 102 {69(c)
4 As noted supra, Respondent denies the complaint allegations that, on
November 30, 1979, an election was held in Case 29-RC 4772 which re-
sulted in the issuance of a Certification of Representative to the Union on
July 9, 1980, and Respondent also denies the allegation that, on July 28,
1980, it refused to bargain with the Union in that certified unit To the
extent that, in these denials. Respondent is denying the fact of these
events, the record includes (a) the tally of ballots and the Regional Direc-
tor's Report on Challenged Ballots which lists the election date as No-
vember 30, 1979 (b) the Board's Decision and Certification of Repre-
sentative, which is dated July 9, 198o0: and (c) a letter from Respondent
to the Union, dated July 28,. 1980, in which Respondenit ackno\41edgedi
receipt of the Union's request to bargain but refused to bargain in order
to test the certification Respondent has not denied the authenticity and
accuracy of these documents accordingly, we find the relevant cm-
plaint allegations to he established as true
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation with its
office and place of business in East Farmingdale,
New York, herein called Respondent's facility. Re-
spondent is engaged in the wholesale sale of cut-
ting tools and related products. During the year
prior to the issuance of the complaint, Respondent,
in the course and conduct of its business, purchased
and caused to be transported and delivered to its
place of business oil, tools, and other goods and
materials valued in excess of $50,000 of which
goods and materials valued in excess of $50,000
were delivered to its place of business in interstate
commerce directly from States of the United States
other than the State in which it is located.
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.
II1. rHE LABOR ORGANIZATION INVOLVED
Local 854, International Brotherhood of Team-
sters. Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. 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 office clerical, sales and computer oper-
ation employees employed by Durakut Inter-
national Corp. at its 145 Sherwood Avenue,
East Farmingdale, New York location exclud-
ing all other employees, including warehouse
employees, credit and collections manager,
inside sales manager, office manager, computer
operations manager, executive secretary,
guards and supervisors as defined in the Act.
2. The certification
On November 30, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 29, designated
the Union as their representative for the purpose of
collective bargaining with Respondent.
9R83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on July 9, 1980, 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 July 21, 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 July 28, 1980, 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
July 28, 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Durakut International Corp. is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 854, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All office clerical, sales and computer oper-
ation employees employed by Durakut Internation-
al Corp. at its 145 Sherwood Avenue, East Farm-
ingdale, New York, location excluding all other
employees, including warehouse employees, credit
and collections manager, inside sales manager,
office manager, computer operations manager, ex-
ecutive secretary, guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since July 9, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about July 28, 1980, 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) 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-
984
DURAKUT INTERNATIONAL CORP.
lations Board hereby orders that the Respondent,
Durakut International Corp., East Farmingdale,
New York, its officers, agents, successors, and as-
signs, 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 Local 854, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All office clerical, sales and computer oper-
ation employees employed by Durakut Inter-
national Corp. at its 145 Sherwood Avenue,
East Farmingdale, New York location exclud-
ing all other employees, including warehouse
employees, credit and collections manager,
inside sales manager, office manager, computer
operations manager, executive secretary,
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 East Farmingdale, New York, fa-
cility copies of the attached notice marked "Ap-
pendix."5 Copies of said notice, on forms provided
by the Regional Director for Region 29, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
" In the e cnt hat this Order is eniforced by a Judgment f a Urnietd
States Court of Appeals. the , ords in the nice reading "Postedl h,
Order of the National I.abor Relations Il.oard" shall read osted I'ulrsu
ant to a Judgment of the United States Court of Appeal, It nfircig .;,n
Order of the National Labor Relatioll Board "
secutive days thereafter. in conspicuous places, in-
cluding 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 the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPILOYEES
POSTED RBY ORDER OF THE
NATIONAL. LABOR REI.ATIONS 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 854, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE Wll . NOi 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.
Wt 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 office clerical, sales and computer oper-
ation employees employed at our 145 Sher-
wood Avenue, East Farmingdale, New
York location excluding all other employees,
including warehouse employees, credit and
collections manager, inside sales manager,
office manager, computer operations man-
ager, executive secretary, guards and super-
visors as defined in the Act.
DURAKUT INTERNATIONAL CORP.
985