J. I. Case Co.

National Labor Relations Board - Board Decisions

Mar 1, 1976

222 N.L.R.B. 1187 (N.L.R.B. 1976)

J. I. CASE CO. 1187
J. I. Case Co. and International Union , United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW). Cases 38-CA-2553
and 38-CA-2554
March 1, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
1975, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed 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:
Upon charges filed on October 24, 1975, by Inter-
national Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served on
J I. Case Co.,, herein called the Respondent, the
Acting, General Counsel, hereafter General Counsel,
of the National Labor Relations Board, by the Offi-
cer-in-Charge for Subregion 38, issued an Order
Consolidating Cases and Consolidated Complaint on
November 10, 1975, 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 charges and consolidated
complaint were duly served on the parties to this pro-
ceeding. -
With respect to the unfair labor practices, the com-
plaint alleges in substance that on September 4, 1975,
following a Board election in Case 38-RC-1658, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the units found appropriate;' and that, commenc-
ing on or about September 4, 1975, and more partic-
ularly on October 6, 1975, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
December 4, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint, submitting an affirma-
tive defense, and requesting that the complaint be
dismissed.
On December 4, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 24,
'Official notice is taken of the record in the representation proceeding,
Case 38-RC-1658, 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 Beverage 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
Ruling on the Motion for Summary. Judgment
In its answer to the complaint, Respondent admits
the factual allegations of the complaint. In its answer
as well as in its response to the Notice To Show
Cause, Respondent affirmatively alleges that the
Union is not the exclusive bargaining representative
of the employees in -each of the units set forth in the
complaint, basing this allegation on its objections to
the election in the underlying representation pro-
ceeding, Case 38-RC-1658. The General Counsel
contends that Summary Judgment is appropriate,
since Respondent is attempting to relitigate issues
which were raised and determined in the representa-
tion case. We agree with the General Counsel.
The record of the prior representation proceeding,
which is before us, discloses that an election was con-
ducted pursuant to a Stipulation for Certification
Upon Consent Election in four voting groups repre-
senting separate appropriate bargaining units, in-
cluding the two units involved herein, Voting Groups
B and D. In Voting Group B, the tally was 14 for,
and 6 against, the Union. In Voting Group D, the
tally was 33 for, and 19 against, the Union. There
were no challenges in either voting group. On De-
cember 26, 1974, Respondent filed timely objections
to conduct affecting the results of the election in Vot-
ing Groups B and D. After an investigation of
Respondent's objections, the Regional Director is-
sued a Report on Objections and Direction of Hear-
ing in which he ordered a hearing on Respondent's
Objections 1, 2, 3, and 5 and recommended that
Respondent's Objection 4 be overruled. Thereafter,
on April 4, 1975, the Board ordered the scope of the
hearing be expanded to resolve -the issues raised by
Respondent's Objection 4. A hearing was conducted
on May 6, 7, and 16, 1975. On June 18, 1975, the
Hearing Officer issued his Report and Recommenda-
tion on Objections in which he recommended that
the Board overrule all of Respondent's objections,
and certify the Union. Respondent filed timely ex-
ceptions to the Hearing Officer's report. On Septem-
ber 4, 1975, the Board issued a Decision and Certifi-
222 NLRB No. 170
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation of Representative in which the Board, after
having considered the Respondent's objections to an
election held on December 18, 1974, and the Hearing
Officer's report, and after reviewing the record in
light of Respondent's exceptions and briefs thereto,
adopted the Hearing Officer's findings and recom-
mendations. Accordingly, the Board certified the
Union as the collective-bargaining representative of
the employees in the units described in the com-
plaint.
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.2
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
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
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation with an of-
fice and place of business in Rock Island, Illinois,
where it is engaged in the manufacture of agricultur-
al implements. During the past 12 months, Respon-
dent sold and shipped from its Rock Island, Illinois,
plant, finished products valued in excess of $50,000
to points outside the State of Illinois. During the
same period, Respondent purchased and caused to
be transferred and delivered to its Rock Island, Illi-
nois, plant, goods and materials valued in excess of
$50,000 which were transported to said plant directly
from States other than the State of Illinois.
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.
2 See Pittsburgh Plate Glass Co. v N.LR B, 313 U S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
II. THE LABOR ORGANIZATION- INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica (UAW) is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The units
The following employees of the Respondent con-
stitute units appropriate for collective-bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All plant clerical employees in the Production
Planning and Shipping Department at the
Respondent's Rock Island, Illinois, facility at
625 3rd Avenue, but excluding all supervisors,
managerial employees, including management
trainees, office clerical employees, technical em-
ployees, other plant clerical employees, profes-
sional employees, confidential employees,
guards, nurses, Timestudy I and II, employees
already represented in another bargaining unit
and all other employees.
All office clerical employees and plant clerical
employees at the Respondent's Rock Island, Illi-
nois, facility, at 625 3rd Avenue, but excluding
all supervisors, all plant clerical employees in
the Production Planning and Shipping Depart-
ment, Timestudy I and II, technical employees,
managerial employees, including Management
Trainees, Buyers I and II, Purchasing Agents,
Co-op Students, professional employees, engi-
neers, confidential employees, all employees in
the Industrial Relations Department, General
Plant Manager's Secretary, Nurses, guards, em-
ployees represented in another bargaining unit,
and all other employees.
2. The certification
On December 18, 1974, a majority of the employ-
ees of Respondent in said units, in a secret ballot
election conducted under the supervision of the Re-
gional Director for Region 13, designated the Union
as their representative for the purpose of collective
bargaining with the Respondent. The Union was cer-
tified as the collective-bargaining representative of
the employees in said units on September 4, 1975,
J. I. CASE CO. 1189
and the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about September 4, 1975, and
more particularly, on or about September 27, 1975,
and at all times thereafter, the Union has requested
the Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described units. Com-
mencing on or about September 4, 1975, and more
particularly on October 6, 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 exclusive representative for
collective bargaining of all employees in said units.
Accordingly, we find that the Respondent has,
since September 4, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate units, and that, by such refusal, Respon-
dent 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 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 units, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate units 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 units. 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 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. J. I. Case Co. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica (UAW) is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All plant clerical employees in the Production
Planning and Shipping Department at the
Respondent's Rock Island, Illinois, facility at 625 3rd
Avenue, but excluding all supervisors, managerial
employees, including management trainees, office
clerical employees, technical employees, other plant
clerical employees, professional employees, confiden-
tial employees, guards, nurses, Timestudy I and II,
employees already represented in another bargaining
unit and all other employees.
All office clerical employees and plant clerical em-
ployees at the Respondent's Rock Island, Illinois, fa-
cility, at 625 3rd Avenue, but excluding all supervi-
sors, all plant clerical employees in the Production
Planning and Shipping Department, Timestudy I
and II, technical employees, managerial employees,
including Management Trainees, Buyers I and II,
Purchasing Agents, Co-op Students, professional em-
ployees, engineers, confidential employees, all em-
ployees in the Industrial Relations Department, Gen-
eral Plant Manager's Secretary, Nurses, guards,
employees represented in another bargaining unit,
and all other employees, constitute units appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since September 4, 1975, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate units for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about September 4, 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 units, Respondent has
engaged in and is engaging in unfair labor practices
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, J. I.
Case Co., Rock Island, Illinois, 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 International Union,
United Automobile, Aerospace and Agricultural Im-
plement- Workers of America (UAW), as the exclu-
sive bargaining representative of its employees in the
following appropriate units:
All plant clerical employees in the Production
Planning and Shipping Department at the
Respondent's Rock Island, Illinois, -facility at
625 3rd Avenue, but excluding all supervisors,
managerial employees, including management
trainees, office clerical employees, technical em-
ployees, other plant clerical employees, profes-
sional employees, confidential employees,
guards, nurses, Timestudy I and II, employees
already represented in another bargaining unit
and all other employees.
All office clerical employees and plant clerical
employees at the Respondent's Rock Island, Illi-
nois, facility, at 625 3rd Avenue, but excluding
all supervisors, all plant clerical employees in
the Production Planning and Shipping Depart-
merit, Timestudy I and II, technical employees,
managerial employees, including Management
Trainees, Buyers I and II, Purchasing Agents,-
Co-op Students, professional employees, engi-
neers, confidential employees, all employees in
the Industrial Relations Department, General
Plant Manager's Secretary, Nurses, guards, em-
ployees represented in another bargaining unit,
and all other employees.
(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 units 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 Rock Island, Illinois, plant, copies
of the attached notice marked "Appendix." I Copies
of said notice, on forms provided by the Regional
Director for Region 13, 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 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3In 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 Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Ameri-
ca (UAW), as the exclusive representative of the
employees in the bargaining units 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 represen-
tative of all- employees in the bargaining units
described below, with respect to rates of pay,
wages, hours, and-other terms and conditions of
J. I. CASE CO.
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining units are:
All plant clerical employees in the Produc-
tion Planning and Shipping Department at
the Respondent's Rock Island, Illinois, facili-
ty at 625 3rd Avenue, but excluding all super-
visors, managerial employees, including man-
agement trainees, office clerical employees,
technical employees, other plant clerical em-
ployees, professional employees, confidential
employees, guards, nurses, Timestudy I and
II, employees already represented in another
bargaining unit and all other employees.
All office clerical employees and plant clen-
1191
cal employees- at the Respondent's Rock Is-
land, Illinois, facility, at 625 3rd Avenue, but
excluding all supervisors, all plant clerical em-
ployees in the Production Planning and Ship-
ping Department, Timestudy I and II, techni-
cal employees, managerial employees,
including Management Trainees, Buyers I
and II, Purchasing Agents, Co-op Students,
professional employees, engineers, confiden-
tial employees, all employees in the Industrial
Relations Department, General Plant
Manager's Secretary, Nurses, guards, employ-
ees- represented in another bargaining unit,
and all other employees.
J. I. CASE Co.