Keco Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1971

191 N.L.R.B. 257 (N.L.R.B. 1971)

KECO INDUSTRIES, INC. 257
Keco Industries, Inc. and International Union, Allied
Industrial Workers of America, AFL-CIO. Case 9-
CA-5912
June 17, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
should not be granted. Respondent thereafter filed a
reply 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 powers
in connection with this proceeding to a three-member
panel.
Upon the entire record in this proceeding, the Board
makes the following:
Upon a charge filed on November 5, 1970, by Inter-
national Union, Allied Industrial Workers of America,
AFL-CIO, herein called the Union, and duly served on
Keco Industries, Inc., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9, issued
a complaint on November 23, 1970, against Respond-
ent, 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 Sec-
tion 2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, complaint, and no-
tice of hearing before a Trial Examiner were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on September 22, 1970,
following a Board election in Case 9-RC-8496 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;t and that, commencing
on or about September 30, 1970, and at all times there-
after, 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
December 18, 1970, and February 12, 1971, respec-
tively, Respondent filed its answer and amended an-
swer to the complaint admitting in part, and denying
in part, the allegations in the complaint.
On March 8 and March 15, 1971, counsel for the
General Counsel filed directly with the Board a Motion
for Summary Judgment, with supporting memoran-
dum and an amendment thereto alleging that there are
no unresolved issues requiring an evidential bearing,
and praying for the relief sought in the Motion for
Summary Judgment. Subsequently, on March 30, 1971,
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
' Official notice is taken of the record in the representation proceeding,
Case 9-RC-8496, as the term "record" is defined in Secs 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 638 (C.A. 4,
1968), Golden Age Beverage Co., 167 NLRB 151, Intertype Co. v Penello,
269 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
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
The record in Case 9-RC-8496 reflects that, at the
hearing on May 6, 1970, the Respondent questioned
the sufficiency of the petitioning Union's showing of
interest and moved to adjourn the hearing to permit the
Regional Director to make an additional investigation
and redetermination of the showing. The Hearing
Officer denied the motion but afforded the Respondent
the opportunity to submit a memorandum to the Re-
gional Director. On May 8, the Respondent submitted
a memorandum with supporting evidence and re-
quested the Regional Director to reexamine the
Union's evidence in support of its showing. In his Deci-
sion and Direction of Election of May 21, the Regional
Director not only noted that showing of interest was
not litigable under well-established Board precedent,
but also determined, after a thorough administrative
examination of the evidence submitted by the Respond-
ent, that the Union had satisfied the showing of interest
requirement. On May--28, the Respondent filed a Re-
quest for Review on the showing of interest question
which the Board denied on June 9 as not raising issues
warranting reviews.
On May 28, the Respondent had also filed with the
Regional Director a request for extension of time to file
the list of eligible voters because of inadequate time to
prepare the list. Finding that the circumstances of the
Respondent were not patently extraordinary and that
it had ample time to prepare an eligibility list of approx-
imately 125 employees, the Regional Director denied
the motion. The Respondent's Request for Review of
this ruling on the ground that a hearing should have
been held was denied by the Board on June 15 as lack-
ing in merit.
On July 8, an election by secret ballot was con-
ducted, but the ballots were impounded pending dispo-
sition of the unfair labor practice charge in Case 9-CB-
1834, filed by the Respondent against the Union 2 days
before the election. This 8(b)(1)(A) charge was based
upon the Union's refusal to submit equal employment
opportunity information which the Respondent re-
quested prior to the election and which it contended
was vitally necessary to the Respondent and its em-
ployees, since its employment policies were subject to
191 NLRB No. 56
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Civil Rights Act of 1964 and certain Executive
orders and the employees would be voting without ade-
quate knowledge of the Union 's alleged policies in this
regard . Following the dismissal of the charge by the
Regional Director on August 4,2 the ballots were
opened and counted on August 19. The tally of ballots
showed that of approximately 98 eligible voters, 47 cast
valid votes , of which 37 were for, and 8 against, the
Union, with 2 challenged ballots.
On August 26, the Respondent filed timely objec-
tions to the conduct of the election alleging in sub-
stance : (1) That a letter from the Union to the em-
ployees destroyed the laboratory conditions required
for the election ; (2) that the Union's refusal to honor
the Respondent 's request for equal employment oppor-
tunity information, together with statistical data,
which was the subject of the charge in Case 9-CB-
1834 , destroyed the laboratory conditions of the elec-
tion; (3) that contrary to Board policy under Section
11730 of the Board's Field Manual , the Regional Di-
rector conducted the election while an investigation
and determination were pending on the charge in Case
9-CB-1834 ; and (4) that the Regional Director con-
ducted a split election and did not notify the Respond-
ent and employees that the ballots were to be im-
pounded until the start of the election.
The objections were investigated. On September 22,
the Acting Regional Director issued his Supplemental
Decision and Certification of Representative in which
he overruled the objections in their entirety and cer-
tified the Union . The Respondent did not file a Request
for Review from the Acting Regional Director's Sup-
plemental Decision and Certification of Representa-
tive.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been raised in the prior repre-
sentation proceeding , and the 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
' On appeal to the General Counsel, the dismissal was sustained on
September 15
? 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 (1) and 102 69(c).
° In its answers to the complaint and in its reply to the Notice To Show
Cause, the Respondent argues for Board review of the record in Case 9-RC-
8496 and makes the bare allegation that only 25 percent of the eligible
employees voted in the election The Respondent contends that the Su-
preme Court in Magnesium Castings Co. v. N.L.R B., 27 Law Edition 2d,
the Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.5
We shall , accordingly , 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 THE RESPONDENT
Respondent, an Ohio corporation , is engaged in the
business of manufacturing special purpose air condi-
tioning and environmental control equipment at its
place of business located at 2438 Beekman Street, Cin-
cinnati, Ohio.
During the past 12 months, which is a representation
period, Respondent sold and shipped goods and
products valued in excess of $50 ,000 from its place of
business in Ohio directly to customers located outside
the State of Ohio.
We find , on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Union , Allied Industrial Workers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
735, is limited to unit determinations by the Regional Director and therefore
the Board is required to undertake a complete and independent review of
such determinations in the representation case, particularly with respect to
objections such as those dealing herein with the equal employment oppor-
tunity issue which the Board itself has not reviewed We find no merit in this
contention as we do not agree with the Respondent that the Supreme Court
decision in Magnesium should be so narrowly construed. See International
Equipment Company, Division of Damon Engineering Company, 189
NLRB No. 78, fn. 3 With respect to the Respondent 's allegation as to
employee participation in the election , we note first that the tally of ballots
indicates that nearly 50 percent voted, and secondly that, in any event, this
matter of employee participation was not raised as an objection in the
representation proceeding, and therefore is not timely presented in the
instant unfair labor practice proceeding.
5 The Respondent's answer denies the allegation of the complaint per-
taimng to the Respondent 's refusal to bargain in good faith with the Union
Attached to the amendment to the General Counsel's Motion for Summary
Judgment is a letter dated October 19, 1970, in which the Respondent
purportedly refused to meet with and recognize the Union as the representa-
tive of its production and maintenance employees . Since the Respondent
has neither alluded to nor controverted the contents of the letter in its reply
to the notice to show cause, its denial of the allegation of the complaint with
respect to the Respondent 's failure and refusal to bargain must be stricken
and the allegation of the complaint deemed to have been admitted . General
Dynamics Corporation, 187 NLRB No 96, and cases cited therein.
KECO INDUSTRIES, INC. 259
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
the Respondent at its place of business at 2438
Beekman Street, Cincinnati, Ohio, excluding all
office clerical employees, laboratory technicians,
guards, professional employees, and supervisors,
as defined in the Act.
2. The certification
On July 8, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 9, designated the Union as their representa-
tive for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on September 22, 1970, 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 30, 1970, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on or
about September 30, 1970, 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 bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
September 30, 1970, 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 III,
above, occurring in connection with its operations de-
scribed 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
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 representa-
tive 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 appropri-
ate 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 begin-
ning 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; 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).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Keco Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Union, Allied Industrial Workers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the
Respondent at its place of business at 2438 Beekman
Street, Cincinnati, Ohio, excluding all office clerical
employees, laboratory technicians, guards, professional
employees, and supervisors, as defined in the Act, con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since September 22, 1970, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about September 30, 1970, 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 Respond-
ent 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.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is in-
terfering 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 engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board orders that Respondent, Keco Industries, 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 International Union, Allied Indus-
trial Workers of America, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees of the
Respondent at its place of business at 2438 Beekman
Street, Cincinnati, Ohio, excluding all office clerical
employees, laboratory technicians, guards, professional
employees, and supervisors, as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaran-
teed 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Cincinnati, Ohio, place of business,
copies of the attached notice marked "Appendix."6 Co-
pies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by Re-
spondent's representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
6 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 be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
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 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Interna-
tional Union, Allied Industrial Workers of
America, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 Sec-
tion 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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees
of the Respondent at its place of business at
2438 Beekman Street, Cincinnati, Ohio, ex-
cluding all office clerical employees, labora-
tory technicians, guards, professional em-
ployees, and supervisors, as defined in the
Act.
KECO INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
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 compliance
with its provisions may be directed to the Board's
Office, Room 2407, Federal Office Building, 550 Main
Street, Cincinnati, Ohio 45202, Telephone 513-684-
3686.