John Singer, Inc.

National Labor Relations Board - Board Decisions

May 25, 1972

197 N.L.R.B. 88 (N.L.R.B. 1972)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Singer, Inc. and Local No. 125, International
Brotherhood of Firemen and Oilers , AFL-CIO.
Case 30-CA-1697
May 25, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND PENELLO
Upon a charge filed on August 27, 1971, a first
amended charge filed on September 7, 1971, and a
second amended charge filed on September 10, 1971,
by Local No. 125, International Brotherhood of
Firemen and Oilers, AFL-CIO, herein called the
Union, and duly served on John Singer, Inc., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 30, issued a complaint on
October 18, 1971, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (5) and Section
2(6) and (7) of the National Labor Relations Act, as
amended. Copies of the charges, complaint, and
notice of hearing before a Trial Examiner were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint, inter alia, alleges in substance that on
September 2, 1971, following a Board election in
Case 30-RC-1519 the Union was duly certified as
the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate; i and that, commencing on or about September
7, 1971, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On October 29, 1971,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint. With respect to the refusal-to-
bargain allegations, the Respondent admits in
substance all of the material factual allegations,
including its refusal to recognize and bargain with
the Union, but denies the validity of the certification.
Respondent also denies that it has been engaged in
commerce and in operations affecting commerce
within the meaning of the Act.
On November 9, 1971, a hearing on all of the
allegations in the complaint commenced before Trial
i Official notice is taken of the record in the representation proceeding,
Case 30-RC-1519, as the term "record" is defined in Sees 102 68 and
102 69(f) of the Board's Rules and Regulations, Series 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269
Examiner Harry R. Hinkes. On November 30, 1971,
during the course of the hearing, the Trial Examiner
granted the General Counsel's motion to sever the
refusal-to-bargain allegations from those alleging
violation of Section 8(a)(1) and (3) of the Act to
enable the General Counsel to institute summary
judgment proceedings as to the refusal-to-bargain
allegations.
On December 6, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 10,
1971, the Board issued an order transferring the
proceeding2 to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent did not file a response to Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
As indicated above, Respondent's primary defense
to the refusal-to-bargain allegations is its contention
that the certification is invalid. In sum, it asserts that
the Board's representation petition form, which the
Union used, is defective in that "it does not contain a
declaration by the person signing'it, under penalties
of the Criminal Code, that its contents are true and
correct to the best of his knowledge and belief," that
the petition was also defective in that the Union had
not ascertained whether Respondent would refuse to
accord recognition before filing the petition, and that
the Board failed to adequately investigate the
Union's showing of interest. These same issues had
been raised in the Request for Review in representa-
tion Case 30-RC-1519, which request was denied by
the Board on August 11, 1971.
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.3
All of the above issues raised by the Respondent in
this proceeding were or could have been litigated in
the prior representation proceeding, and the Respon-
dent 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.
F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F.2d
91 (C A 7, 1968), Sec 9(d) of the NLRA
2 This Order related only to the severed refusal-to-bargain allegations.
3 See Pittsburgh Plate Glass Co v N L.R B, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Sees 102 67(f) and 102 69(c)
197 NLRB No. 7
JOHN SINGER, INC.
We therefore find that the above issues are not
properly litigable in this unfair labor practice
proceeding.
With respect to its denial that it is in commerce or
operations affecting commerce, we note that in its
answer to the complaint Respondent admitted the
factual allegation in the complaint that during the
past year, a representative period, Respondent
shipped goods and materials valued in excess of
$50,000 directly to points outside the State of
Wisconsin, where its place of business is located. In
light of this admission, we find no merit in this
denial. Siemons Mailing Service, 122 NLRB 81.
In view of the foregoing, we shall 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
The Respondent, a Wisconsin corporation, main-
tains its office and place of business in Milwaukee,
Wisconsin, where it is engaged in the manufacture of
hydraulic equipment. During the year preceding the
issuance of the complaint herein, a representative
period, the Respondent shipped goods and materials
valued in excess of $50,000 directly to points located
outside the State of Wisconsin.
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 No. 125, International Brotherhood of
Firemen and Oilers , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of
the Employer, excluding all office clerical em-
ployees, seasonal employees,4 professional em-
4 The complaint's unit description inadvertently omits mention of the
exclusion of "seasonal employees," a category specifically excluded in the
89
ployees, guards and supervisors as defined in the
Act.
2. The certification
On August 20, 1971, 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 30 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 September 2, 1971, 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 September 7, 1971, 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 unit. Com-
mencing on or about September 7, 1971, 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 unit.
Accordingly, we find that the Respondent has,
since September 7, 1971, 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, 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,
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 com-
merce.
V. THE REMEDY
Subsequent to the filing of his Motion for Summa-
ry Judgment, the General Counsel filed a motion
with the Board asserting that the reasons advanced
Direction of Election and in the Certification in Case 30-RC-1519
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent for refusing to recognize and
bargain with the Union are "patently frivolous," and
that, as part of the Board's remedy for the violation
of Section 8(a)(5), certain remedies in addition to the
conventional direction to bargain should be provid-
ed. A brief in opposition was thereafter filed by the
Respondent.
We agree with the General Counsel that the
reasons advanced by the Respondent to defend its
refusal to bargain have no ment and, indeed, are so
insubstantial as to be frivolous. While there are
assertions by the Respondent that it has been and is
willing to bargain with the Union, all of its offers to
bargain were conditioned on preservation of its
"right" to present to a court of appeals the same
contentions attacking the validity of the Board's
certification of the Union. Clearly, no meaningful
bargaining can take place when at the same time the
Respondent is contesting its bargaining obligation.
While due process normally permits a party to
litigate issues to the full extent provided by law, the
frivolous contentions advanced by the Respondent
here warrant the inference that it is not seeking to
preserve any real defense; rather it is apparent that
its true motive in pursuing further litigation is to
delay the enforcement of our determination that it
has a statutory obligation to bargain. The complete
lack of substance to the Respondent's "defense"
compels the grant of a remedy designed not only to
correct Respondent's past unlawful refusal to accord
its employees' duly designated bargaining represent-
ative its statutory role, but to end now that
continuing conduct. Further, this remedy should
provide for a means of communication by the Union
with unit employees to facilitate the Union's reclaim-
ing the allegiance it enjoyed when selected by a
majority in the Board-conducted election. Accord-
ingly, in addition to directing the Respondent to
bargain with the Union, we shall, to remedy the
Respondent's violation of Section 8(a)(5), order that
the Union be given reasonable use of Respondent's
bulletin boards and other places where notices to
employees are customarily posted, during the period
of contract negotiations, for the posting of union
notices, bulletins, and other literature, in order that
the employees may have free and ready access to
information from the Union concerning all aspects
of collective representation and the collective-bar-
gaining negotiations. We shall also require that
Respondent furnish the Union a list of names and
addresses of its employees and keep that list current
for a period of 1 year from the time Respondent
commences to bargain in good faith to assist the
Union to meet with the individuals involved in order
to explain the circumstances of the instant proceed-
ing and the Union's future plans. Further, in order to
insure that the employees will be accorded the
services of the Union 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 appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd . 350 F.2d 57
(C.A. 10).
As we have found that the Respondent's only
apparent objective is to postpone its statutory
obligation, we regard any further litigation as an
abuse of the processes of the Board and the courts.
For this reason, we believe that in the event
Respondent seeks judicial review of our Order herein
or disregards our Order, thus requiring the General
Counsel to seek judicial enforcement, the policies of
the Act will be effectuated by the General Counsel
proceeding promptly on our behalf to seek appropri-
ate relief under Section 10(e) of the Act as to our
directions that the Respondent grant the Union
access to its bulletin boards and furnish and
maintain employee lists, and to also seek appropriate
relief under Rule 38, Federal Rules of Appellate
Procedure. N.L.R.B. v. Smith & Wesson, 424 F.2d
1072 (C.A. 1); N.L.R.B. v. United Shoe Machinery
Corporation, 445 F.2d 633 (C.A. 1); General Tire and
Rubber Co. v. N.L.R.B., 451 F.2d 257 (C.A. 1).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. John Singer, Inc., is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Local No 125, International Brotherhood of
Firemen and Oilers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
the Employer , excluding all office clerical employees,
seasonal employees , professional employees , guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since September 2, 1971, 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 September 7, 1971,
JOHN SINGER, INC.
and at all times thereafter , to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit , Respon-
dent 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 , Respon-
dent has interfered with , restrained , and coerced, and
is interfering with , restraining , and coercing , employ-
ees 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
meaning 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
91
the Union a ' list of names and addresses of all
employees currently employed and keep such list
current for a period of 1 year following' the
commencement of good-faith bargaining with the
Union.
(d) Post at its Milwaukee, Wisconsin, place of
business copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms
provided by the Regional Director for Region 30,
after being duly signed by Respondent's representa-
tive, 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. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
John Singer, Inc., 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
conditions of employment with Local No. 125,
International Brotherhood of Firemen and Oilers,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees of
the Employer, excluding all office clerical em-
ployees, seasonal employees, professional em-
ployees, 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Upon request of the Union, immediately grant
the Union and its representatives reasonable use of
its bulletin boards and all places where notices to
employees are customarily posted, such access to
continue through the period of the collective-bar-
gaining negotiations.
(c) Upon request of the Union, make available to
5 In the event 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 Local
No. 125, International Brotherhood of Firemen
and Oilers , AFL-CIO, as the exclusive represent-
ative 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 production and maintenance employ-
ees of the Employer , excluding all office
clerical employees , seasonal employees, pro-
fessional employees , guards and supervisors
as defined in the Act.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request , grant the Union and its
agents reasonable use of our bulletin boards and
other places where notices to employees are,
posted.
WE WILL , upon request , give the Union a list of
names and addresses of employees currently
employed and keep that list current for a period
of 1 year from the commencement of negotia-
tions.
Dated By
(Representative ) (Title)
JOHN SINGER, INC.
(Employer)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203 , Telephone 414-224-3861.