G. F. Business Equipment, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1981

256 N.L.R.B. 262 (N.L.R.B. 1981)

262 B. F. BUSINESS EQUIPMENT, INC.
G. F. Business Equipment, Inc. and United Rubber,
Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO. Case 11-CA-9547
June 1, 1981
DECISION AND ORDER
Upon a charge filed on November 21, 1980, by
United Rubber, Cork, Linoleum and Plastic Work-
ers of America, AFL-CIO, herein called the
Union, and duly served on G. F. Business Equip-
ment, Inc., herein called Respondentor Employer,
the General Counsel of the National Labor Rela-
tions Board, by the Acting Regional Director for
Region 11, issued a complaint and notice of hearing
on December 5, 1980, 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 17,
1980, following a Board election in Case 11-RC-
4701, 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 October 29, 1980,
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 17,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On January 30, 1981, counsel for the General
Counsel filed directly with the Board a motion to
strike portions of Respondent's answer to the com-
plaint and a Motion for Summary Judgment. Sub-
sequently, on February 5, 1981, the Board issued
an order transferring the proceeding to the Board
and a Notice To Show Cause why the General
Counsel's motion to strike portions of Respondent's
answer to the complaint and the Motion for Sum-
mary Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case l-RC-4701, 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 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); Interrype 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.
256 NLRB No. 40
thereafter filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion To Strike Portions of
Respondent's Answer to the Complaint and on
the Motion for Summary Judgment
In its answer Respondent admits all the allega-
tions of the complaint except for the allegation that
the Union timely filed objections to conduct affect-
ing the results of the election, the allegation that
the Union is the collective-bargaining representa-
tive of its employees, and the allegation that its re-
fusal to bargain with the Union violated the Act.
With respect to the motion to strike portions of
Respondent's answer, the General Counsel con-
tends the denials in the answer constitute false and
sham pleadings. While, for the reasons stated
below, we find that Respondent's answer to the
complaint, as supplemented by its reply to the Gen-
eral Counsel's motions, does not present a meritori-
ous defense to the allegations of the complaint, we
do not believe that those denials should be stricken
in that they could be viewed as an attempt by Re-
spondent to preserve a position, albeit, in our view,
an erroneous one. See, e.g., The Johnson & Hardin
Company, 221 NLRB 379 (1975). Accordingly, we
deny the General Counsel's motion to strike por-
tions of Respondent's answer to the complaint.
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. 2
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.
On the basis of the entire record, the Board
makes the following:
2 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(f) and 102.69(c).
262 . I .
G. F. BUSINESS EQUIPMENT, INC. 263
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is now, and has been at all times ma-
terial herein, an Ohio corporation with a plant lo-
cated in Forest City, North Carolina, where it is
engaged in the manufacture of plastic and metal
business equipment. During the past 12 months, a
representative period, Respondent shipped from its
Forest City, North Carolina, facility directly to
points outside the State of North Carolina goods
and materials valued in excess of $50,000. During
that same period Respondent received at its Forest
City, North Carolina, facility directly from points
outside the State of North Carolina goods and raw
materials valued in excess of $50,000.
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
United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, is a labor organi-
zation 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
and all plant clerical employees, employed by
the Employer at the Forest City, North Caro-
lina, plant; excluding all office clerical employ-
ees, professional employees, guards and super-
visors as defined in the Act.
2. The certification
On June 21, 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 11, 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 October 17, 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 October 24, 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 October 29, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
October 29, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 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
U. F. BUSINESS EQUIPMENT, INC. 3
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. G. F. Business Equipment, Inc., is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees
and all plant clerical employees employed by the
Employer at the Forest City, North Carolina,
plant; excluding all office clerical employees, pro-
fessional 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 October 17, 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 October 29, 1980, 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
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,
G. F. Business Equipment, Inc., Forest City, North
Carolina, 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 United Rubber,
Cork, Linoleum and Plastic Workers of America,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All production and maintenance employees,
and all plant clerical employees employed by
the Employer at the Forest City, North Caro-
lina, plant; excluding all office clerical employ-
ees, professional employees, guards and super-
visors 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 Forest City, North Carolina, plant
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 11, 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 11,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
3 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.'"
G. F. BUSINESS EQUIPMENT, INC. 265
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 United Rubber, Cork, Linoleum and Plas-
tic Workers of America, 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 production and maintenance employees,
and all plant clerical employees employed
by the Employer at the Forest City, North
Carolina, plant; excluding all office clerical
employees, professional employees, guards
and supervisors as defined in the Act.
G. F. BUSINESS EQUIPMENT, INC.