ITT Blackburn Co.

National Labor Relations Board - Board Decisions

Feb 13, 1976

222 N.L.R.B. 885 (N.L.R.B. 1976)

ITT BLACKBURN COMPANY 885
ITT Blackburn Company and Office and Professional
Employees International Union, Local #13, AFL-
CIO. Case 14-CA-8751
February 13, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge-filed on August 25, 1975, by Office
and Professional Employees International Union,
Local # 13, AFL-CIO, herein called the Union, and
duly served on ITT Blackburn Company, herein
called the Respondent, the Acting General Counsel,
hereinafter referred to as the General Counsel, of the
National Labor Relations Board, by the Regional
Director 'for Region 14, issued a complaint on Sep-
tember 19, 1975, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 were
duly served on the parties to this proceeding.-
With respect to the unfair labor practices, the com-
plaint alleges in substance that on July 15, 1975, fol-
lowing a Board election in Case 14-RC-7657, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about August 15, 1975, 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 and to fur-
nish it information necessary for the purpose of col-
lective bargaining, although the Union has requested
and is requesting it to do so. On September 24, 1975,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint. The Respondent admits all of the fac-
tual allegations of the complaint, including its refusal
to recognize and bargain with the Union. As an affir-
mative defense, the Respondent in its answer con-
tends that the Union's certification is invalid, basing
this contention on the same matters that it raised in
the underlying representation proceeding, Case
14-RC-7657.
'Official notice is taken of the record in the representation proceeding,
Case 14-RC-7657, 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 (C.A. 4,
1968); Golden Age Veverage 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 the NLRA.
On November 10, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and a brief in support thereof,
with- appendices attached, submitting, in effect, that
Respondent, in its answer, seeks to relitigate issues
already decided in the underlying representation pro-
ceeding, and raises no issues of fact requiring a hear-
ing. Subsequently, on November 18, 1975, 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. Respondent did not file a response to
Notice To Show Cause.
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
As reflected above, the Respondent admits all of
the factual allegations of the complaint, including its
refusal to recognize and bargain with the Union
which had been certified as the collective-bargaining
representative of the employees described in the
complaint. In its affirmative defense to the com-
plaint, the Respondent attacks the Board's Decision
and Certification of Representative issued on July
15, 1975, in which the Board, after having considered
the Respondent's objections to an election held on
August 2, 1974,2 and the Hearing Officer's report rec-
ommending that the Respondent's objections be
overruled in their entirety, and after having reviewed
the record in light of the Respondent's exceptions
and brief, adopted the Hearing Officer's findings and
recommendations and certified the Union. Thus, the
Respondent, by attacking the legal effect or validity
of the Decision and Certification of Representative
issued by the Board on July 15, 1975, is attempting to
relitigate the same issues which it raised in the repre-
sentation proceeding, Case 14-RC-7657.
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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
2 The election was conducted pursuant to a Decision and Direction of
Election issued by the Regional Director . The tally was 39 for and 33
against the Union.
3 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)
222 NLRB No. 139
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation proceeding, and the 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 de-
cision 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.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
III. THE UNFAIR LABOR PRACTICES -
A. The Representation- Proceeding
1. The unit -
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All office clerical employees , excluding pro-
fessional employees , guards, and supervisors as
defined in the Act, and all other employees.
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly authorized to do business
under the laws of the State of Missouri. At all times
material herein, Respondent has maintained its prin-
cipal office and place of business at 1525 Woodson
Road in the City of Overland, and State of Missouri.
Respondent is, and has been at all times material
herein, engaged in the manufacture, sale, and distri-
bution of electrical distribution equipment and relat-
ed products. Respondent's plant located at 1525
Woodson Road, Overland, Missouri, is the only fa-
cility involved in this proceeding. During the year
ending December 31, 1974, which period is represen-
tative of its operations during all times material here-
in, Respondent, in the course and conduct of its busi-
ness operations, manufactured, sold, and distributed
at its Overland, Missouri, plant, products valued in
excess of $50,000, of which products valued in excess
of $50,000 were shipped from said plant directly to
points located outside-of the State of Missouri.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Office and Professional Employees International
Union, Local #13, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
- -2. The certification
On August 2, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 14, -designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on July 15, 1975,1and 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 July 30, 1975, and-at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit, and to fur-
nish it information for the purpose of collective bar-
gining. Commencing on or about August 15, 1975,
and continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit, and to provide it with such
information.
Accordingly, we find that the Respondent has,
since, August 15, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
ITT BLACKBURN COMPANY 887
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, 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. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement,
and, to provide the Union, on request, information
necessary for collective bargaining.
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 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
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 5-7-(C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. ITT Blackburn Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Office and Professional Employees Internation-
al Union, Local # 13, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All office clerical employees, excluding profes-
sional employees, guards, and supervisors as defined
in the Act, and all other employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since July 1-5, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 15, 1975, 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 and to provide it
with information necessary for the purpose of collec-
tive bargaining. 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 to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 Re-
lations Board hereby orders that Respondent, ITT
Blackburn Company, Overland, Missouri, its offi-
cers, 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 Office and Professional
Employees International Union, Local #13, AFL-
CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All office clerical employees, excluding pro-
fessional employees, guards, and supervisors as
defined in the Act, and all other employees.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to provide the above-named Union,
upon request, information necessary for the purpose
of collective bargaining.
(c) 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 under-
standing is reached, embody such understanding in a
signed agreement, and provide the Union, upon re-
quest, information necessary for the purpose of col-
lective bargaining.
(b) Post at its Overland, Missouri, plant, copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 14, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4In 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 WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Office
and Professional Employees International
Union, Local #13, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT refuse to provide the Union,
upon request , information necessary for the pur-
pose of collective bargaining.
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 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
employment , and, if an understanding is
reached , embody such understanding in a signed
agreement , and provide the Union , upon re-
quest, information necessary for the purpose of
collective bargaining. The bargaining unit is:
All office clerical employees, excluding pro-
fessional employees , guards, and supervisors
as defined in the Act, and all other employees.
ITT BLACKBURN COMPANY