Gould, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1978

237 N.L.R.B. 66 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gould, Inc., Electrical Components Division and In-
ternational Brotherhood of Electrical Workers, Lo-
cal Union No. 108, AFI,-CIO. Case 12 CA 8042
July 21, 1978
DECISION AN[D ORI)E-R
BY MEMBI RS JENKINS. Mt RPIIY, ANID 1 RtiI:SI)AI.I
Upon a charge and an amended charge filed on
January 26, 1978,1 and March 31,2 respectively. by
International Brotherhood of Electrical Workers, I.o-
cal Union No. 108, AFL CIO, herein called the
Union, and duly served on Gould, Inc., Electrical
Components Division, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 12, is-
sued a complaint and notice of hearing on February
14 and an amendment to the complaint on April 13.1
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, amended charge, complaint, amended
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint, as amended, alleges in substance that on De-
cember 22, 1977, following a Board election in Case
12-RD-347, the Union was duly certified as the ex-
clusive collective-bargaining representative of Efcor's
employees in the unit found appropriate; that on
April 4 the certification v.as amended by substituting
Respondent's name for that of Efcor: 4 and that, com-
tAll dates herein are in 1978 unless otherwise inLdicated
t he amendment substituted the abhove-cillponed rltlne l I Re.ptlldclnt
for that of Efcor Die Casting C orporatlon and, or Go uld Inc. :lectrical
Components Division.
In a stipulation dated March 23. the parties agreed to substitute the
above-captioned name of Respondent for that of E fcor I)ie ( asting ( irpo-
ration (herein called IEfcor) with respect t the ( erti ca tion of Representa-
tive dated December 22, 1977 I hereafter. Respondent filed a petition cck-
ing to amend the ( ertificatto r of Representativ e bh subst tullng the nal.mie
Gould. Inc.. Electrical Components I)i.ision. for that of Ifc ,r. ()n April 4
the Regional Director for Region 12 issued all order almiendiLn the certifica-
tion making the aforesaid substitution of nalres ((t ase 12 A( 20 nal re-
ported in bound vo luntes of Board I)ecislonsl
4 Official notice is taken ol clie retcord ill he leprersent ilon paocceding,
(ases 12 RI) 347 and 12 A 20,(). as the term lecold" i defined ir Seec
102.68 and 102.69(g) of the Board's Rules iand Kegulains, Sellis 8. a,
amended. See 1.1' E 1ctrois tem.r , It., 166 NlRB 9'8 ( 1967, enild l38t
F2d 683 (( A. 4. 1968): (,olden1 Age B'i,'ragc (i. 17 NI R I l.R (197),
enfd 415 F 2d 261 (.A. s 1969): Intilrtip (',, vi Pa/.li,. 26h I Supp 573
ID.( Va.. 1967); fhi, tt ( rp . 164 NlRB 378 ( 1967) enfd 397 1 2d 91
( .A. 7. 1
9
6
8
)t Sec. 9)d) of the NL RA a arilcided
mencing on or about September 8. 1977, and at all
times thereafter. and more particularly on or about
January 17. Respondent has refused, and continues
to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. Subsequently. Respondent filed its answers
to the complaint and the amended complaint, admit-
ting in part, and denving in part, the matters alleged
therein and stating certain affirmative defenses.
On May 4. counsel for the General Counsel filed
with the Regional Director for Region 12 a Motion
for Summary Judgment. with attachments. By order
of the same date, the Regional Director referred the
motion to the Board for ruling and postponed indefi-
nitelv a scheduled hearing.5 Subsequently, on May
16, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
w\hy the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause and a
memorandum in opposition to 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 answers to the complaint and amended com-
plaint and response to Notice To Show Cause and
memorandum in opposition to the Motion for Sum-
mary Judgment, Respondent, in substance, agrees
that the Union is the certified bargaining representa-
tive and that it has refused the Union's demand for
bargaining.t but attacks the validity of the Union's
certification on the grounds that the Board improper-
ly overruled its objection to the election in the under-
lying representation proceeding and failed to direct a
hearing on substantial and material issues of fact
raised by the objection. I he General Counsel, on the
Ihe l notion iheuled ha e been filed uwai the Bo.rd. rather than the
Reeional I)lrecli,r. sice it reque ted that the Board grant summar? judg-
nlerut litoeer, Respoindcnid , mas ot preludiced bs (ieneral( 'ounsel s filing
lf lhe te rillion vslth the Regional Director
'In its Mlotili1 flr Sunimiars Judglment, the (ieneral iCounsel aserts that
Respident's refusal to bargatin is estabhlished b, a letter dated January 17,
19?8. froim Respondent's personnel director to the t nion tihe alihdits, if
.hlch is not contested bh Respondent stating that Respondent has no obhli-
g.tion ti bargain since the L nion's certification is invalid Inasmuch as the
(ieneral ( ounsel has presented no cieidence sho ing that Respondeni made
an earlier deinl l d find e thai the refusal coiiernciced on Januars 17 1978
237 NLRB No. 16
66
the representation proceeding." We thelrefoi find
that Respondent has not raised an% issue w hich is
properl. litigable in this unfair labor practice pro-
ceeding. Accord ingly , we grant the Motion for Sum-
mar. Judgiment.
1On the basis of the entire record, the Board makes
the follo\ine:
[INI)IN(S o() F' \( I
I II HI S'iNSS 01 RiSPON())I: N I
Respondent, a Delaware corporation, is licensed to
do business in the State of Florida, where its Electri-
cal Components Division is engaged in the manufac-
ture of electrical fittings and components at its Tam-
pa, Florida facility.
I)uring the past 12 months. which is a representa-
tive period of time. Respondent has purchased and
received at its Tampa. Florida, facility, goods and
materials \alued in excess of $50,000(i which were
shipped to said facilitv directly from points located
outside the State of Illorida. During the same period
of time. Respondent shipped products valued in ex-
cess of $50.0()00 directly to points located outside the
State of Florida.
We find, on the bhasis of the foregoing, that Re-
spondent is. and has been at all times material
herein, an employer engaged in commerce within the
meaninE of Section 2(h) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
ReCspondent conltendl in It t pp-rllh to II 1 l, SlIlill.I\
Judgment thai this case presents '\pe.ial rilrcuim nrlce" I'n t1 th i[ H .id
erred in fnliJle Iti it ojeti tins in itic enderirkne reprerctlll;tn carc lwlth
nerit anid falhing It dirert a hearilg on the di puled 1il;c l th.il I. ,lc
Ihat, een i llhe Iah ence fe newnis dlc.ecrcd .r pc Picilrlki LIlI.-l, hlr C
e\idence. there should he some de*sice for the HB.lr I t .i kn c led l Iit,
nirike.,t .,,d revise lk pitinrm ti -escr the hald assertioin I error Lip-
pirtcdl hi the Idential nlrttcrl.ls .irnrdtered h, the HBoard in the underRltin
rrprc enitrtl itl prr.ccditi!t l es nit i-InItillte special Ircumintant.n e ulr
rantille a ree. mirrnln rin f that delimen it this time
Ill Its answer it the c mpllnti Re prndent denies the .ppr prlatcner, -(
[tie iiuiii In ilt nlic rin dunll l r 1iopp rthr n t, the Mo\tion for Surmin ars
.ludmlent Rernrdcinl espliln thi, denial ,n the alleged fact Ihat 1irl-C the
Seprtember i. 19h 7 elcrtion it ha,l added rperatis n 11l I [;imp:l ir locaionr
and Ih1at the pilrdk.,triiol anid trllrntenanl e erlplio)ee
s
Of the added operalionll
J. n 1I h.ire .1 illnlunlilt\ if ilterenCt sith the pr iductlinn and maintenance
empin\ee, descibed In the unit Rcpondent does not rsserl that it refusal[
tli haieain Ii hr , cd on a ciinltcltion thai the unit is inapproprlate Rather. it
it.tel Ihit it Ir nt hallerntlg the appropriateness , I a prtoduction and
riintena nr.c tilit at it r arip;i faitirts. hibt is .hailenglne the p r ibhle Inter
pretli, iton i thi, lt lln i nlllcdlring the produirton and maintenance emplo?
cc rof tihe adided oipellt lrn Respondent. hi'soe er lffers no evidence ,up-
p,"rtlng the a lleged eCxpa.inn mi 1petr. ii. the nature ,If A.ork perfrirmed
hl these cmpnrhp ,e .ir hrn their o irking c nditilns dniffer from thioe of
tunlt cmplo ct, Nr ti there eiderice that .ans pairts has sught incluisrin If
hlres CliplrorcCe In the unit I urther. noi peilltrn eekring ilarlilcaltin .f the
bargaitinrg iunt purei.antt to Scs 1026tib) and 102 11 hudl f the Board',
Ruled and KRcuratlinw.t Series 8, a. amended ha hbeen filed We Iherefiore
iind the iah e- decnrihed unit ppr, prl.lte f-or the purposeCS f ollective har-
h2aliink rlid di n;t reach tr on tidci the uuctlrrln ihether the produitlnt
iand iT niall e inttl e ip i c- .e t the .i llcered .r ote I. pe nti, tn* c trlhitute nit
tkren itl t.- tie crt irck tIl
other hand. argues that all material issues have been
previousl, decided and that there are no litigable is-
sues of fact warranting a hearing.
Review of the record herein, including that in the
representation proceeding, Case 12-R[) 347, estab-
lishes that. pursuant to the Board's Order approving
the request for withdrawal of the charge and [)irec-
tion of Second Election involving Cases 12 ('A 7421
and 12-RD-347.7 a rerun election by secret ballot
was conducted among certain of Efcor's employees
on September 8, 1977. which the Union won b' a
vote of 52 to 41 with no challenged ballots. Respon-
dent filed a timely objection to conduct affecting the
results of the election alleging, inter arlia that union
agents told employees that the Union had waived.
forgiven, or discharged their dues arrearages, therebh
conferring a material monetary benefit upon employ-
ees and interfering with the employees' exercise of
free choice of bargaining representative. After inves-
tigation. the acting Regional Director for Region 12.
on October 13, 1977, issued his Report on Objec-
tions, in which he concluded that Respondent's obh-
jection was without sufficient merit to warrant set-
ting aside the election. Thereafter. Respondent filed
timely exceptions and a supporting brief. On D)ceem-
ber 22. 1977, the Board, after reviewing the record in
light of Respondent's exceptions and brief, found
that the Employer's exceptions raised no material or
substantial issues of law or fact that would wartrant a
reversal of the Acting Regional Director's recom-
mendation and adopted his findings and recommen-
dations and certified the Union as collective-ba-gailn-
ing representative of Efcor's employees. I'hat
certification was later amended to substitute Respon-
dent's name for that of Efcor. as discussed in foot-
note 3, supra.
It is well settled that in the absence of newlh dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.!
All issues raised by Respondent in this proceedingm
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newl' discotered or pre-
viously unavailable evidence, nor does it allege that
any special circumstances exist herein which would
require the Board to reexamine the decision made in
Eftotr Die (Cating ( orr,,rjn n,, 2:1 NilRB '61i I1'771
See Pitrrhurreh Plr.e (;lart ( ,, \ I R B 1 S 146 it2 i I41i
Rules and Regulartins of the BoHard. Set s 102 6?i fl Iand 102 91i)l
(GOUl LD, INC 67
DECI( SIONS OF NAl IONAL LABOR REL.ATIONS BOARD
11 111 1 H)R ()R(,ANIZ Ii( ON INVOL(.VtD
International Brotherhood of Electrical Workers,
Local I nion No. 108, AI, ('10. is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
111 1t: II I :NI AISIKR ABR R ( M I1('1S
A. 7Th1 Representation Proccceditn g
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees
employed by the Employer at its Tampa, Flor-
ida, plant, exclusive of office clerical employees.
guards and supervisors as defined in the Act.
2. The certification
On September 8, 1977, a majority of the employees
of Efcor in said unit, in a secret ballot election con-
ducted under the supervision of the Regional I)irec-
tor for Region 12, designated the Union as their rep-
resentative for the purpose of collective bargaining
with Efcor. The Union was certified as the collective-
bargaining representative of the employees in said
unit on December 22, 1977. On April 4 the certifica-
tion was amended by substituting the name of Re-
spondent for that of Efcor. TIhe Union continues to
be such exclusive representative within the meaning
of Section 9(a) of the Act.
B. The Request To Bargain Wand Respondentl ' Rct/ital
Commencing on or about December 28, 1977, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about January 17, 1978, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has. since
January 17, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
IV. 1 : it It(' 01 III ll t N AIK R .A ()R PRAC(II('iS ILPON
('()MNIR('
TIhe activities of Respondent set forth in section
111. above. occurring in connection with its opera-
tions described in section 1, above, have a close, inti-
mate, 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 commerce.
V I'ttF RI NhM ) '
Hav ing found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) 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 ap-
proprate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will he accorded the services of their se-
lected 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 PouthrL CompanrY, Inc., 136
NLRB 785 (1962): C(ommerce ('ompan d/h .a Lamar
Hotel. 140 NL.RB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5. 1964). cert. denied 379 U.S. 817 (1964): Bur-
nett Cln.s truction ('onmpatv, 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:
CON( I SiONS () LAW
1. Gould, Inc., Electrical Components Division, is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Work-
ers, Local Union No. 108, AFL CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees em-
ployed by the Employer at its Tampa, Florida, plant,
exclusive of office clerical 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 the Act.
4. Since December 22, 1977, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
68
aittliched notice mIirked "i\ppendix." " ' (',pies of
said notice. on forms prox ied bh the Regional I)i-
rectolr for Region 12. after being dul1 signed bv Re-
spondent's r.epleselntati e. shall be posted b Re-
spondent immediatelx upon receipt thereof, and he
mnliit;aimed hb it for (10 coilsecutix e da,, thereatfter.
in ccInspIiuous places. incluiding a1ll places, \here no-
tiLccs to cInplo ,e,:'s aIire c1i)iilin.i pNl', csted. Reason-
lihlt steps s-lil he I:tken h\ Responlldenlt t( i1lIll.'
th.it si. d notices .i re not altered. deiclied . or co\ red
\ .il\ other maIllterial.
(c) Notif the Regional l)irector for Reiton 12. in
\iitilng. .ithin 20) dais frontll the date of this ()rder.
XstlI t steps hl \c bcen tak t en to corpl her ith.
,1l I I II 11h .t lh 0l IlI (t I dI I ctitoL I I , 1 [lIt vl [1i l I C i I If t 1r11lCd
SIl.t[
'
( l, l " \i lJ , lc ' ot ' !i 111 Ili I ii rcid][I " Po.tc 1b; (}rdci
it Itc INs rlir.ln [ horl Rc.llllt, fs IilrId \hall I cAl i ',I)CislC. i ItlrIlllnl 1) .1
.Jludgmilc [ ,l il t' [ru lc d S,1i1ct ( oui. t .f AppeA,- I n,r,:,, , ,r, ()rdid ,f the
X'4llt.l i1 I ,hrl ,l¢,llihR l,t I,,,l'-id
APP[N )DIX
No .n1 1 loI ,I'LO)i is
lP()S I ) li ORI)IR {)I 111
NII)N tl[, \t IlIeR RI iAIIoNS Bo\RD
A1n Agent)e! of the t nited States (Go-ernment
Wi ' AIII \o1i refuse to hargain collectivelx
concerning rates of pay. wages, hours. and other
terms and conditions of employment with Inter-
national Brotherhood of F lectrical Workers. I o-
cal Inioll No. 10()8. AI ('10, as the exclusive
representative of the employees in the hargain-
inm unit described below.
Wi ,ul ,o1] in an'11 like or related mnanner
interfere with. restrainl or coerce our emploxees
in the e\ercise of the rights guaranteed them b\
Section 7 of the Act.
Vi \I ,, upon request, bargain with the
above-namied U;nion, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours. and other terms and conditions of
emploN ment. and, if an understanding is
reached. emhbody such understanding in a signed
agreement. T'he bargaining unit is:
All production and maintenance emplo\ees
enplo cd by the Efnplo er at its Tampa,
FIlorida, plant. exclusive of office clerical em-
plotees, guards and supervisors as defined in
the Act.
o()t I) IN( , i' ( I Rl( \1 ('O(N1P'Nt- IS DI'-
SI(N
aforesaid appropriate tnllit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about Januar' 17. 1978. and
at all times thereafter. to bargain collectivelx with the
above-named labor organization as the exclusi, e bar-
gaining representative of all the emplo,,ces of Re-
spondent in the appropriate unit. Respondent has eln-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8X(a)() of the Act.
6. By the aforesaid refusal to bargain. Respondent
has interfered with, restrained. and coerced. and I,
interfering with, restrainisng, and coercing. emplo\ ecs
in the exercise of the riglhts guaranteed to thelln in
Section 7 of the Act, and thereby has engaged in andl
is engaging in unfair labor practices within the mean-
ing of Section 8(a)( I ) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the nimean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the Nationall 1 ahor
Relations Act, as amended. the National labor- Re-
lations Board hereby orders that the Respondent.
Gould, Inc., Electrical Components Division. Iaiam-
pa. Florida, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectivel\ concerninig
rates of pay, wages. hours, antd other terms and con-
ditions of employment with International Brother-
hood of Electrical Workers. Local I nion No. 108.
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance emplo ees
employed by the Employer at its Tampa. I lor-
ida. plant, exclusive of office clerical emplo ees.
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 finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-namied
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 Tampa. Florida. plant copies of the
(GOU DJ) IN( 69