Hoosier Energy

National Labor Relations Board - Board Decisions

Jan 30, 1980

247 N.L.R.B. 59 (N.L.R.B. 1980)

HOOSIER ENERGY
Hoosier Energy Division of Indiana Statewide Rural
Electric Cooperative, Inc. and Local Union No.
1393, International Brotherhood of Electrical
Workers, AFL-CIO. Case 25-CA-11303
January 3, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on September 5, 1979, by Local
Union No. 1393, International Brotherhood of Electri-
cal Workers, AFL-CIO, herein called the Union, and
duly served on Hoosier Energy Division of Indiana
Statewide Rural Electric Cooperative, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 25, issued a complaint and notice of
hearing on September 11, 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 () 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 August 1, 1979,
following a Board election in Case 25-RC-7215, 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 August 29, 1979, and at all times
thereafter, 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 September 17, 1979, Respondent filed its answer
and on September 26, 1979, Respondent filed an
amended answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On October 2, 1979, the General Counsel filed
directly with the Board in Washington, D.C., a
Motion To Strike Portions of Respondent's Answer
and Motion for Summary Judgement, with exhibits
attached. The General Counsel requests that official
notice be taken of the proceedings in the underlying
representation proceeding, Case 25-RC-7215. He
submits, in effect, that Respondent's denial of sub-
paragraphs 5(a) and (c) and the qualification to its
'Official notice is taken of the record in the representation proceeding, Case
25-RC-7215, as the term "record" is defined in Sees. 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.
247 NLRB No. 11
admission of subparagraph 6(a), as well as its affirma-
tive defense, are contrary to the facts admitted and the
official record, and are subject to a motion to strike;
and that all factual and legal issues raised by the
complaint, answer, and amended answer have been
determined either by admissions in the answer, by
admissions in the amended answer, or by prior Board
Decisions which are resjudicata on the question. The
General Counsel, therefore, moves that Respondent's
denial of subparagraphs 5(a) and (c), the qualification
to its admission of subparagraph 6(a), and its affirma-
tive defense be stricken, and that the Board enter a
summary judgment finding Respondent in violation of
Section 8(a)(l) and (5) of the Act, and order Respon-
dent to bargain with the Union. Subsequently, the
Board, on October 9, 1979, issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should be granted. Respondent
failed to file a response to the Notice To Show Cause.
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 To Strike Portions
of Respondent's Answer and
Motion for Summary Judgment
It is the General Counsel's basic position that all
issues raised by Respondent's answers were decided in
the representation proceeding and that he is entitled to
a summary judgment as a matter of law. With respect
to his motion to strike portions of Respondent's
answer and amended answer, it is the General
Counsel's contention that such are contrary to the
facts admitted and the official record. While, for the
reasons stated below, we find that Respondent's
answer, amended answer, and affirmative defenses do
not present a meritorious defense to the allegations of
the complaint, we do not believe such defenses should
be struck in that such could be viewed as an endeavor
by Respondent to preserve a position, albeit, in our
view, an erroneous one. See Rod-Ric Corporation, 171
NLRB 922 (1968). The motion to strike is denied.
In its answers to the complaint, Respondent admits
its refusal to bargain, but contends it is not obligated
to bargain because the unit for which the Union is
certified is inappropriate. In this regard, Respondent
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969) Interlype 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.
59
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserts that the dispatchers are supervisors as defined
in the Act and are managerial. By way of affirmative
defense, Respondent argues that the dispatchers per-
form supervisory and managerial functions sufficient
to qualify them as supervisors under the Act and are
therefore excluded from coverage by the Act. The
General Counsel contends that Respondent is improp-
erly seeking to relitigate issues which were raised and
decided in the underlying representation case. We
agree with the General Counsel.
Review of the record herein, including the record in
Case 25-RC-7215, reveals that following a hearing
before a hearing officer of the National Labor Rela-
tions Board, the Acting Regional Director for Region
25 issued a Decision and Direction of Election on June
29, 1979. Thereafter, Respondent filed a request for
review of the Acting Regional Director's Decision and
Direction of Election, which was denied by the Board
on July 24, 1979, as it raised no substantial issues
warranting review. The election was conducted by the
Regional Director for Region 25 among the employees
in the unit set forth in the Decision and Direction of
Election. The tally of ballots was six for and none
against the Union. On August 1, 1979, a Certification
of Representative was issued, certifying the Union as
the representative of the employees in the unit noted
below. The certified unit is:
All dispatcher employees of the Respondent, but
excluding all office clerical employees, plant
clerical employees, shift engineers, the Chief
Dispatcher, all supervisors as defined in the Act,
and all employees currently covered by collective-
bargaining agreement.
It thus appears that Respondent is seeking to
relitigate herein the appropriate unit and jurisdictional
issues which were fully litigated and decided adversely
to Respondent in the underlying representation case.
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) 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 proceeding
were or could have been litigated in the prior
representation proceeding, and 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
Respondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
I 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).
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, an India-
na corporation, has maintained its principal office and
place of business at Bloomington, Indiana, herein
called the facility, with places of business at various
locations within the State of Indiana, and is, and has
been at all times material herein, engaged at such
facility and locations in the generation, sale, and
transmission of electrical power and related products.
During the past year, a representative period, Respon-
dent, in the course and conduct of its business
operations, received gross revenues in excess of
$250,000. During the same representative period,
Respondent, in the course and conduct of its business
operations, received goods valued in excess of $50,000
transported to its facility in interstate commerce
directly from States other than the State of Indiana.
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
Local Union No. 1393, International Brotherhood
of Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. 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 dispatcher employees of the Respondent, but
excluding all office clerical employees, plant
clerical employees, shift engineers, the Chief
Dispatcher, all supervisors as defined in the Act,
and all employees currently covered by collective-
bargaining agreements.
60
HOOSIER ENERGY
2. The certification
On July 24, 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 25, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 1, 1979, 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 August 13, 1979, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about August 29, 1979, 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 collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
August 29, 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
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 1I,
above, occurring in connection with its operations
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 commerce.
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 appro-
priate 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate 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. Hoosier Energy Division of Indiana Statewide
Rural Electric Cooperative, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local Union No. 1393, International Brother-
hood of Electrical Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All dispatcher employees of Respondent, but
excluding all office clerical employees, plant clerical
employees, shift engineers, the chief dispatcher, all
supervisors as defined in the Act, and all employees
currently covered by collective-bargaining agreements,
constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since August 1, 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 August 29, 1979, 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, Respondent
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 engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
Hoosier Energy Division of Indiana Statewide Rural
Electric Cooperative, Inc., Bloomington, Indiana, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with Local Union No. 1393, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All dispatcher employees of the Respondent, but
excluding all office clerical employees, plant
clerical employees, shift engineers, the Chief
Dispatcher, all supervisors as defined in the Act,
and all employees currently covered by collective-
bargaining agreements.
(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 facility in Bloomington, Indiana,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 25, 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. Reason-
able 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 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' 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 Enforcing 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 WII.L NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Local
Union No. 1393, International Brotherhood of
Electrical Workers, AFL-CIO, as the exclusive
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 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 dispatcher employees of the Employer, but
excluding all office clerical employees, plant
clerical employees, shift engineers, the Chief
Dispatcher, all supervisors as defined in the
Act, and all employees currently covered by
collective-bargaining agreements.
HOOSIER ENERGY DIVISION OF INDIANA
STATEWIDE RURAL ELECTRIC COOPERA-
TIVE, INC.
62