Hickman, Williams & Co.

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 766 (N.L.R.B. 1979)

I): CISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Hickman, Williams & Company, Detroit Processing
Division and Local 247, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 7 CA 16164
June 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MLMBERS JENKINS
ANDI MURPIHY
Upon a charge filed on March 13, 1979, by Local
247, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union, and duly served on Hickman, Wil-
liams & Company, Detroit Processing Division,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 7, issued a complaint on March 21,
1979, 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 (I) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of
the charge and complaint were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges, in substance, that on February 2. 1979.
following a Board election in Case 7 RC-14161, 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 March 8, 1979, and at all times there-
after. Respondent has refused and continues 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
March 26, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On April 13, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 20, 1979, the
Board issued an Order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed an oppo-
sition to the Motion for Summary Judgment.
I Official notice is taken of the record in the representation proceeding,
Case 7 RC 14161. as the term "record" is defined in Secs. 102.68 and
102 .69(g) of he Board's Rules and Regulations. Series 8, as amended See
L7TV Electrowslem, Inr, 166 NI.RB 938 (1967), end 388 F.2d 683 (4th ('ir.
1968); oldetl 4ge Beserage Co( , 167 NI.RB 151 (1967), enfd. 415 F 2d 26
(5th ('ir. 1969): Irntertpe (Co v Penello, 269 I.Supp. 573 ().C Va 1967.
Follett Corp. 164 NI.RB 378 (1967), enfd. 397 F2d 91 (7th ('ir. 1968) Sec
9(d) of the NL.RA 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
On January 24, 1979, the Board issued a Decision,
Order, and Direction,2 finding that Respondent had
violated Section 8(a)(3) of the Act by discharging em-
ployee Starr. Having found that Starr was unlawfully
discharged, the Board overruled Respondent's chal-
lenge to his ballot and directed the Regional Director
to open and count Starr's ballot and to issue a revised
tally of ballots and appropriate certification. A Certi-
fication of Representative was issued February 2,
1979.
In its answer to the complaint and its response to
the Motion fbr Summary Judgment, Respondent ad-
mits substantially all of the factual allegation of the
complaint, including its refusal to recognize and bar-
gain with the Union which has been certified as the
collective-bargaining representative of' the employees
in the appropriate unit. By its assertions and by its
denials, in whole or in part, of the allegations of the
complaint and the arguments propounded in the re-
sponse, Respondent is attempting to relitigate the
same issue which was raised and determined in the
underlying representation and unfair labor practice
cases.
It is well settled that in the absence of newly 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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.'
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly 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:
2240 N.RB 81 (1979).
See Pittsburgh Plate Glaus (o C . L R.B. 313 L S 146. 162 (1941);
Rules and Regulations oJi the Board, Sec. 102.67(1) and Sec. 10 2.691c)
242 NLRB No. 118
766
HICKMAN, WILLIAMS & COMPANY
FINDIN(;S OF FAC
1. 'rtE BUSINESS ()F RESP)NI)FNI
Respondent is a Delaware corporation with an of-
fice and place of business at River Rouge, Michigan.
It is engaged in the trucking, sizing, and nonretail sale
of bituminous coke. During the past year, a repre-
sentative period, Respondent sold and distributed
products valued in excess of $50,000 which were
shipped directly to points outside the State of Michi-
gan.
We find, on the basis of the foregoing, that Respon-
dent 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. TIHE I.ABOR ORGANIZATION INVOLVED
Local 247, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE UNFAIR L.ABOR PRA(I-ItES
A. The Representation Proceeding
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 facility, located
at Zug Island, River Rouge, Michigan, including
plant clerical employees; but excluding office
clerical employees, guards and supervisors as de-
fined in the Act.
2. The certification
On April 2, 1977, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional I)i-
rector for Region 7, designated the UInion as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on February 2, 1979, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent'S Re/iksal
(Commencing on or about March 5, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
March 8, 1979, and continuing at all times thereafter
to date. Respondent has refused and continues to re-
fuse to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that Respondent has, since
March 8. 1979, 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 Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and ( I ) of the
Act.
IV. IeI IFFI-(I ()F IHE UNFAIR I.ABO)R PRA( I('ES
UPON ('OMMER('E:
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1. above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. ITE RFEFD)Y
Having bound that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (l) 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-
propriate 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 be accorded the services of their se-
lected bargaining agent for the period provided bh
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the I nion as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Pouhln (Compantlll, In., 136 NLRB
785 (1962): Commerce Company dlhi/b/a Lamar lte'l.
140 NLRB 22>, 229 (1962). enfd. 328 F.2d 600 (th
Cir. 1964),. cert. denied 379 U.S. 817: Burnett ('on-
structioni (Compan'. 149 NLRB 1419. 1421 (1964),
enf'd. 350 F.2d 57 (I 0th ('ir. 1965).
767
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Hickman, Williams & Company, Detroit Pro-
cessing Division, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 247, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Employer at its facility located at Zug
Island, River Rouge, Michigan, including plant cleri-
cal employees; but excluding office clerical employ-
ees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since February 2, 1979, the above-named labor
organization has been and now is the certified and
exclusive 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 March 8, 1979, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(l) 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 Rela-
tions Board hereby orders that the Respondent, Hick-
man, Williams & Company, Detroit Processing Divi-
sion, River Rouge, Michigan, its officers, 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 con-
ditions of employment with Local 247. International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All production and maintenance employees,
employed by the Employer at its facility located
at Zug Island, River Rouge, Michigan, including
plant clerical employees; but excluding office
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 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its River Rouge, Michigan, facility cop-
ies of the attached notice marked "Appendix."4 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 7. after being duly signed by Re-
spondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be main-
tained 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 7. in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United States
court of appeals, the words n the notice reading "Posted bh Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order o, the Naollt
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF Tlli
NATIONAL LABOR REI.AIIONS BOARI)
An Agency of the United States Government
WE W.l. NOT refuse to bargain collectively
concerning rates of' pay, wages, hours. and other
terms and conditions of employment with Local
247, International Brotherhood of Teamsters.
Chauffeurs. Warehousemen and Helpers of'
768
HICKMAN, WILLIAMS & COMPANY
America, as the exclusive representative of the
employees in the bargaining unit described be-
low.
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 de-
scribed 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
agreement. The bargaining unit is:
All production and maintenance employees,
employed by the Employer at its facility lo-
cated at Zug Island, River Rouge, Michigan,
including plant clerical employees; but exclud-
ing office clerical employees, guards and su-
pervisors as defined in the Act.
HICKMAN, WILLIAMS & COMPANY, DETROIT
PROCESSING DIVISION
769