Jefferson Electric Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 941 (N.L.R.B. 1980)

JEFFERSON ELECTRIC CO 941
Jefferson Electric Co., Inc. and Aluminum Workers
International Union, AFL-CIO. Case 10-CA-
15835
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELL O, AND
TRUESDALE
Upon a charge filed on May 15, 1980, by Alumi-
num Workers International Union, AFL-CIO,
herein called the Union, and duly served on Jeffer-
son Electric Co., Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
10, issued a complaint and notice of hearing on
May 30, 1980, 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 charge and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 26,
1980, following a Board election in Case 10-RC-
11966, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about May 6,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On June 9,
1980, Respondent filed its answer to the complaint
admitting in part, ard denying in part, the allega-
tions in the complaint. 2
On July 22, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 24, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
i Official notice is taken of the record in the representation proceed-
ing, Case 10-RC-11966, 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
(4th Cir 1968): Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd 415
F 2d 26 (5th Cir. 1969): Intertvpe Co. . 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
2 Respondent failed to respond to those allegations which it did not
specifically deny. In accordance with Sec. 102.20 of the Board's Rules
and Regulations, Series 8, as amended, these allegations are deemed to be
admitted to be true.
251 NLRB No. 129
Judgment should not be granted. Respondent
thereafter 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:
Ruling on the Motion for Summary Judgment
In its oppostion to the Motion for Summary
Judgment and its answer to the Notice To Show
Cause, Respondent essentially contests the validity
of the Union's certification. Specifically, Respond-
ent contends that the Board erred in denying its re-
quest for review of the Acting Regional Director's
Supplemental Decision and Certification of Repre-
sentative, in which Respondent's objections to con-
duct affecting the results of the election were over-
ruled.3 In the Motion for Summary Judgment, the
General Counsel maintains that Respondent is at-
tempting to relitigate the issues it raised in the re-
lated representation proceeding. We agree with the
General Counsel.
Review of the record herein, including the
record in Case 10-RC-11966, reveals that on Janu-
ary 17, 1980, after a hearing, the Regional Director
issued a Decision and Direction of Election. On
January 25, 1980, Respondent filed with the Board
a request for review of the Decision and Direction
of Election, contending that Respondent was im-
properly denied the opportunity to be present at
the hearing and that the eligibility of voters was in-
correctly determined. This request was denied on
February 11, 1980. An election was conducted on
February 13, 1980, which resulted in a vote in
favor of the Union of 108 to 89, with 21 challenged
ballots. 4 On February 21, Respondent filed objec-
tions to the conduct of the election, contending, in
essence, that the Union had implied to employees
that the Board favored the Union. On March 26,
1980, the Acting Regional Director issued a Sup-
plemental Decision and Certification of Representa-
3 Respondent also claims that it has recognized the Union and negoti-
ated with it on July 22 and 23, 1980 However, we find that this claim is
insufficient to withstand the Motion for Summary Judgment On May 6.
1980, Respondent violated Sec 8(a)(5) by replying to a valid union re-
quest to begin collective bargaining by stating that it "must decline to
recognize the labor organization" in order to test the validity of the
Union's certification Respondent's subsequent recognition of the Union,
occurring after its initial, unlawful refusal to bargain, would not vindicate
the statutory rights of employees which we find herein were violated. Cf.
O'Land. Inc, d/bh/a Ramada Inn South, 206 NLRB 210 (1973)
4 he Acting Regional Director subsequently approved the parties'
stipulation that the challenges to I I ballots he sustained and, thus, the re-
maining challenged ballots were no longer determinative of the election
results
JEFFERSON ELECTRIC Co. 941
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive overruling Respondent's objections and certi-
fying the Union. Respondent submitted to the
Board a request for review of the Supplemental
Decision on April 8, 1980. The Board denied this
request on April 23, 1980. It thus appears that Re-
spondent is attempting to raise herein issues which
were raised and determined in the underlying rep-
resentation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.5
All relevant issues raised by Respondent in this
proceeding were or could have been litigated in
the prior representation proceeding, and Respond-
ent does not offer to adduce at a hearing any
newly discovered or previously unavailable evi-
dence, nor does it allege that any special circum-
stances exist herein which would require the Board
to reexamine the decision made in the representa-
tion proceeding. We therefore find that Respond-
ent has not raised any issue which is properly liti-
gable in this unfair labor practice proceeding. Ac-
cordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all time material
herein, a Delaware corporation, with an office and
place of business located at Athens, Alabama,
where it is engaged in the manufacture of electrical
transformers. Respondent, during the past calendar
year, which period is representative of all time ma-
terial herein, sold and shipped from its Athens, Al-
abama, facility finished products valued in excess
of $50,000 directly to customers located outside the
State of Alabama.
We find, on the basis of the foregoing, that Re-
spondent 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
Aluminum Workers International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
5 See Pitshburgh Plate Glays Co. v N.L.R.B.. 313 U.S. 14h. 162 (1941):
Rules and Regulations ofI the Board, Secs. 102 67(f) and 1()2 69(c)
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by Respondent at its Athens, Ala-
bama, facility, including quality control testers
and group leaders; excluding office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On February 13, 1980, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 10, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on March
26, 1980, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 31, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about May 6, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
May 6, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate 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.
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 oper-
ations described in section I, above, have a close,
JFFFRSON EECTRIC C 943
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE R MEDY
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 appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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:
CONCI USIONS OF LAW
I. Jefferson Electric Co., Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Aluminum Workers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its Athens, Alabama,
facility, including quality control testers and group
leaders; excluding office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since March 26, 1980, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about May 6, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent 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 en-
gaged 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
meaning 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 the Respondent,
Jefferson Electric Co., Inc., Athens, Alabama, 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 Aluminum Workers
International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
employed by Respondent at its Athens, Ala-
bama facility, including quality control testers
and group leaders; excluding office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facilities located at Athens, Ala-
bama, copies of the attached notice marked "Ap-
pendix."" Copies of said notice, on forms provided
IIn trh c, \Ce t Ii th11s ()rdr II c If1 rcCd bh l Judgmnll of a United
SiIltC . ('ut ri of Appea.d . the ord in thc notice r.eading "',Isted bh
Com'Olted
JEFFERSON ELECTRIC Co
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for Region 10, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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 10,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National 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 Aluminum Workers International Union,
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 employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions 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 us at our Athens, Alabama, fa-
cility, including quality control testers and
group leaders; excluding clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
JEFFERSON ELECTRIC Co., INC.