Lloyd A. Fry Roofing Co.

National Labor Relations Board - Board Decisions

Jan 20, 1975

216 N.L.R.B. 245 (N.L.R.B. 1975)

LLOYD A. FRY ROOFING COMPANY 245
Lloyd A. Fry Roofing Company and Service Employ-
ees International Union, Local 579, AFL-CIO.
Case 10-CA-10882
January 20, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
Upon a charge filed on August 26, 1974, by Service
Employees International Union, Local 579, AFL-
CIO, herein called the Union, and duly served on
Lloyd A. Fry Roofing Company, herein called the
Respondent , the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 10, issued a complaint on September 12,
1974, 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,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 29, 1974,
following a Board election in Case 10-RC-9755, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about August 19, 1974, 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
provide the Union with pertinent information al-
though the Union has requested and is requesting it
to do so. On October 2, 1974, Respondent filed its
answer to 'the complaint admitting in part, and
denying in part, the allegations in the complaint.
On October 22, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 6,
1974, 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. Re-
spondent thereafter filed a response to Notice To
Show Cause, entitled "Answer to Notice To Show
Cause."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 answer to the complaint and response to the
Notice To Show Cause, Respondent admits the
factual allegations of the complaint, but contests the
Union's certification and status as exclusive repre-
sentative of the employees in the bargaining unit on
the basis that its objections to the election in the
underlying representation proceeding were errone-
ously overruled. The General Counsel contends, in
effect, that inasmuch as the issues raised by Re-
spondent's objections to the election were fully
litigated in the representation proceeding, they may
not be relitigated in the instant unfair labor practice
proceeding.
In view of the General Counsel's contention, we
have reviewed the record in the representation
proceeding, Case 10-RC-9755. It reveals that follow-
ing the Union's victory in the election conducted on
October 25, 1973, pursuant to a Stipulation for
Certification Upon Consent Election, Respondent
filed objections to the election alleging, in substance,
that the Union, by its agent who was also an
employee of Respondent, had (1) advised a foreman
in the presence of employees of potential strikes and
production slowdowns if the Union did not get what
it desired, (2) groundlessly challenged voters in the
election , and (3) injected an element of racial
animosity in the election by informing employees
and the plant manager that an allegedly known black
activist would create racial turmoil in the plant if the
Union did not get what it wanted. On January 25,
1974, the Regional Director issued his Report on
Objections, recommending that Objection 2 be
overruled, finding additional potentially objectiona-
ble conduct in the form of the Union's attempting to
coerce employees into a favorable vote by threats,
which he labeled Objection 4, and found that
Objections 1, 3, and the additional Objection 4 raised
issues warranting a hearing, and recommended
accordingly. There being no exceptions to this report,
the Board adopted his recommendations and ordered
that a hearing be held on Respondent's Objections 1
and 3 and the additional Objection 4. Following a
hearing at which all parties appeared and presented
evidence, the Hearing Officer issued a Report and
Recommendations on Objections, finding no merit in
the objections and recommending that they be
Official notice is taken of the record in the representation proceeding , 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
Case l0-RC-9755, as the term "record" is defined in Secs 102.68 and (C.A. 5, 1969); Intertype Co v. Penello, 269 F.Supp. 573 (D.C. Va., 1957);
102.69(1) of the Board 's Rules and Regulations, Series 8, as amended . See Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd . 388 F .2d 683 (C.A. 4, 9(d) of the NLRA.
216 NLRB No. 48
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overruled and the Union certified. Respondent
excepted to this report, essentially attacking credibili-
ty and evidentiary determinations made by the
Hearing Officer. On July 29, 1974, the Board issued a
Decision and Certification of Representative, adopt-
ing the findings and recommendations of the
Hearing Officer and certifying the Union.
From the foregoing review, it appears that the
General Counsel's contention that Respondent is
attempting to relitigate in this proceeding issues it
raised and litigated in the representation proceeding
is well founded.
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.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation 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 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
II. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union, Local 579,
AFL-CIO, 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 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
including truckdrivers, warehousemen, and me-
chanics employed by the Employer at its Atlanta,
Georgia, plant, but excluding all office clerical
employees, technical employees, professional
employees, salesmen , shipping clerks, managerial
personnel, watchmen, guards, and supervisors as
defined in the Act.
2. The certification
On October 25, 1973, 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 10, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent.
The Union was certified as the collective-bargain-
ing representative of the employees in said unit on
July 29, 1974, and the Union continues to be such
exclusive representative within the meaning of
Section 9(a) of the Act.
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation with an office
and plant located in Atlanta, Georgia, is engaged in
the manufacture and distribution of roofing prod-
ucts. During the past calendar year, a representative
period of all times material herein, Respondent sold
and shipped finished products valued in excess of
$50,000 directly to customers located outside the
State of Georgia.
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.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 31, 1974, 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, and to
provide pertinent information regarding the names,
home addresses, telephone numbers, rates of pay,
classifications, and hiring dates of unit employees.
Commencing on or about August 19, 1974, 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
2 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).
LLOYD A. FRY ROOFING COMPANY 247
all employees in said unit , and to provide the
information requested by the Union.
Accordingly, we find that the Respondent has,
since August 19, 1974, 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, Respond-
ent 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 commer-
ce.
V. THE REMEDY
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 provide the Union with-the
pertinent information requested and, if an under-
standing is reached , embody such understanding in a
signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected 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);
Burnett 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. Lloyd A. Fry Roofing Company is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local
579, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including truckdrivers, warehousemen, and mechan-
ics employed by the Employer at its Atlanta,
Georgia, plant, but excluding all office clerical
employees, technical employees, professional em-
ployees, salesmen, shipping clerks, managerial per-
sonnel, watchmen, guards, and supervisors as de-
fined 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 July 29, 1974, 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 August 19, 1974, 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, and to supply
the pertinent information requested by the Union,
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 and to
supply pertinent information upon request, Respond-
ent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed 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
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Lloyd A. Fry Roofing Company, Atlanta, Georgia,
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 Service Employees
International Union, Local 579, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees,
including truckdrivers, warehousemen, and me-
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chanics employed by the Employer at its Atlanta,
Georgia, plant, but excluding all office clerical
employees, technical employees, professional
employees, salesmen, shipping clerks, managerial
personnel , watchmen , guards, and supervisors as
defined in the Act.
(b) Refusing to provide Service Employees Interna-
tional Union, Local 579, AFL-CIO, with pertinent
information regarding names, home addresses, tele-
phone numbers, rates of pay, classifications, and
hiring dates of unit employees.
(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.
(b) Post at its Atlanta, Georgia, facility copies of
the attached notice marked "Appendix." 3 Copies of
said notice, on forms provided 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 consecutive days thereaft-
er, in conspicuous places, including all places where
notices 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 10, 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 Service
Employees International Union , Local 579, 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 employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL provide Service Employees Interna-
tional Union , Local 579, AFL-CIO, with perti-
nent information regarding names, home address-
es, telephone numbers , rates of pay, classifica-
tions, and hiring dates of unit employees.
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, including truckdrivers, warehousemen,
and mechanics employed by the Employer
at its Atlanta, Georgia, plant, but excluding
all office clerical employees, technical em-
ployees, professional employees, salesmen,
shipping clerks, managerial personnel,
watchmen, guards, and supervisors as de-
fined in the Act.
3 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
LLOYD A. FRY ROOFING
COMPANY
(Employer)