F & B/CECO of California, Inc.

National Labor Relations Board - Board Decisions

Apr 4, 1977

228 N.L.R.B. 1143 (N.L.R.B. 1977)

F & B/CECO OF CALIFORNIA
F & B/CECO of California, Inc. and International
Brotherhood of Electrical Workers, Local 40,
AFL-CIO. Case 31-CA-6545
April 4, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
Upon a charge filed on October 26, 1976, by
International Brotherhood of Electrical Workers,
Local 40, AFL-CIO, herein called the Union, and
duly served on F & B/CECO of California, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 31, issued a complaint
on November 8, 1976, 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
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 October 13,
1976, following a Board election in Case 31-RC-
3422, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about October 29, 1976, 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 representative,
although the Union has requested and is requesting it
to do so. On November 30, 1976, Respondent filed
its answer to the complaint admitting some but
denying in substance all material allegations of the
complaint.
On December 9, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 22,
1976, 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 Judgment should not be granted. Respon-
dent thereafter filed a response to the Notice To
Show Cause.
I Official notice is taken of the record in the representation proceedings,
Case 31-RC-3422, as the term "record" is defined in Sec. 102.68 and
102.69(8) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV ETectrosystems Inc., 166 NLRB 938 (1967), enfd. 388 F .2d 683 C.A. 4,
1968); Golden Are 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 theNLRA, as amended.
228 NLRB No. 142
1143
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 in its response to
the Notice To Show Cause, Respondent denies in
substance the material allegations of the complaint
and asserts as an affirmative defense the ineligibility
of the Union for representative status because of
irregularities in the conduct of the election which so
tainted the laboratory conditions required by the
Board as to render the certification invalid and
consequently relieve Respondent of its duty to
bargain. The General Counsel asserts that Respon-
dent's claim that the Union was improperly certified
because of election irregularities was duly considered
by the Board in its Decision and Certification of
Representative. It should be noted that Respondent
makes no claim that such alleged defenses are in fact
newly discovered or based on previously unavailable
evidence. Therefore, General Counsel argues that
there exists no issue which would warrant a hearing
before the Board.
Our review of the record herein, including the
record in Case 31-RC-3422? discloses that pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted among the
employees in the stipulated unit on April 30, 1976,
which resulted in a vote of 19 votes for, and 9
against, the Union. Respondent filed timely objec-
tions which alleged, in substance, that (1) a fire-
bombing at its premises created an atmosphere of
fear and uncertainty which made a reasoned choice
impossible; (2) the Union made unlawful promises of
benefits, i.e., initiation fee waivers only to those who
supported the Union prior to the election; and (3) the
Union made unlawful threats and harassed employ-
ees. After investigation, the Regional Director on
July 22, 1976, issued his Report on Objections in
which he found that the objections failed to raise
substantial or material issues 2 as to the election or its
results, overruled the objections in their entirety, and
recommended that a Certification of Representative
in favor of the Union be issued.
2 The Regional Director found that the firebombing occurred at night 3
weeks before the election and was not attributable to any of the parties; the
Union waived initiation fees for all employees until after a contract was
signed with the employer ; and no evidence was submitted of any threats or
harassment by the Union.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 10, 1976, Respondent filed exceptions
to the Regional Director's Report on Objections in
which it essentially reiterated the allegations set forth
in its objections and contended that the election
should be set aside ; or that , in the alternative, either
a hearing should be directed on these issues or the
Board should make a full review of all statements of
witnesses interviewed by the Regional Director. On
October 13, the Board issued its Decision and
Certification of Representative adopting the Region-
al Director's findings and recommendations.
On October 29, Respondent, in response to a
request for bargaining by the Union, alleging that the
certification was invalid and it therefore was under
no obligation to bargain.
In response to the Notice To Show Cause, the
Respondent argues that the General Counsel's
Motion for Summary Judgment should be denied
and that Respondent should be granted summary
judgment or, in the alternative, that a hearing should
be granted to consider the issues presented. Respon-
dent further argues that a hearing should be directed
to consider whether the laboratory conditions re-
quired by the Board were destroyed by certain
promises by the Union and the firebombing. These
contentions were , however, raised and considered in
the representation case and ruled upon there.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) and ( 1) is not
entitled to relitigate issues which were or could have
been litigated in a prior representation proceeding.3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding , and the Respondent
does not offer to adduce at a hearing any newly
discovered 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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.4
On the basis of the entire record, the Board makes
the following:
3 See Pittsburgh Plate Glass Co v. N.L R.B., 313 U .S. 146, 162 (1941);
Rules and Regulations of the Board , Sees. 102.67(1) and 102 .69(c).
4 In its answer to the complaint Respondent , in addition to denying the
Union 's status as representative of the employees in the appropriate
bargaining unit, also denies that the Union requested bargaining and that
Respondent refused to bargain. However, attached to the General Counsel's
Motion for Summary Judgment are copies of correspondence between the
Union and Respondent . By letter dated October 28, 1976, the Union
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation, has been engaged in
the manufacture, rental, sale, and repair of motion
picture equipment at its facilities located in Holly-
wood, California. Respondent, in the course of
conduct of its business operations , annually sells and
ships goods valued in excess of $50,000 directly to
customers located outside the State of California.
We find, on the basis of the foregoing, that
Respondent 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 Brotherhood of Electrical Workers,
Local 40, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All employees employed by Respondent at its
locations at 7265 Santa Monica Boulevard, 7051
Santa Monica Boulevard, and 1041 Highland
Avenue, Hollywood, California, excluding all
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
2. The certification
On April 30, 1976, 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 31, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent.
The Union was certified as the collective-bargain-
ing representative of the employees in said unit on
requested negotiations, to which Respondent replied on October 29, 1976,
that it was not obligated to bargain because "the issuance of the certification
in 31-RC-3422 was improper." Respondent has submitted nothing to
controvert these documents, or their contents . Accordingly, we deem these
allegations of the complaint to be true. The May Department Stores
Company, 186 NLRB 86 (1970); Carl Simpson Buick, Inc. 161 NLRB 1389
(1966).
F & B/CECO OF CALIFORNIA
October 13, 1976, 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 28, 1976, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 29, 1976, and continu-
ing at all times thereafter to date, the 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 the Respondent has,
since October 29, 1976, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices 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 opera-
tions described in section I, above, have a close,
intimate, 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 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
appropriate unit will be accorded the services of their
selected 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
1145
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 223, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett 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. F & B/CECO of California, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Work-
ers, Local 40, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by Respondent at its
locations at 7265 Santa Monica Boulevard, 7051
Santa Monica Boulevard, and 1041 Highland Ave-
nue, Hollywood, California, excluding all office
clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of Act.
4. Since October 13, 1976, 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 29, 1976, 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 practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
meaning 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
Relations Board hereby orders that the Respondent,
F & B/CECO of California, Inc., Hollywood,
California, 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
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment with International Broth-
erhood of Electrical Workers, Local 40, AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All employees employed by Respondent at its
locations at 7265 Santa Monica Boulevard, 7051
Santa Monica Boulevard ; and 1041 Highland
Avenue , Hollywood , California, 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 exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board fords 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its offices and places of business in
Hollywood, California, copies of the attached notice
marked "Appendix .' 15 Copies of said notice, on
forms provided by the Regional Director for Region
31, after being duly signed by Respondent's represen-
tative , 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 Respondent to insure that said notices are not
altered , defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
S 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcmg 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 Inter-
national Brotherhood of Electrical Workers,
Local 40, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described 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 representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages , hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All employees employed by Respondent
at its locations at 7051 Santa Monica
Boulevard, 7265 Santa Monica Boulevard,
and 1041 Highland Avenue, Hollywood,
California, but excluding all office clerical
employees, professional employees, guards
and supervisors as defined in the Act.
F & B/CECO OF
CALIFORNIA, INC.