MacAllister Machinery Co., Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1972

194 N.L.R.B. 928 (N.L.R.B. 1972)

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MacAllister Machinery Co., Inc. , and Local 103,
International Union of Operating Engineers,
AFL-CIO, and Local 135, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Case 25-CA-4401
January 11, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on July 2, 1971, by Local 103,
International Union of Operating Engineers,
AFL-CIO, and Local 135, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein collectively called the Union,
and duly served on MacAllister Machinery Co., Inc.,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 25, issued a complaint on August
31, 1971, against Respondent, alleging that Respon-
dent 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 a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 24, 1971,
following a Board election in consolidated Cases
25-RM-322 and 25-RC-4456 the Union was duly
certified as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit found
appropriate; I and that, commencing on or about
June 8, 1971, 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, although the Union has
requested and is requesting it to do so. On September
9, 1971, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On September 22, 1971, counsel for the General
Counsel filed directly with the Board a Motion To
Strike Portions of Respondent's Answer and Motion
for Summary Judgment. Subsequently, on October 1,
1971, the Board issued an order transferring the
proceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion to Strike and
Motion for Summary Judgment should not be
I Official notice is taken of the record in the representation proceeding,
consolidated Cases 25-RM-322 and 25-RC-4456 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.
granted. In response to the Notice To Show Cause,
Respondent filed an Answer Opposing Motion To
Strike and Motion for Summary Judgment. Thereaft-
er the General Counsel filed a reply. The Respondent
filed, on November 24, 1971, Additional Authority in
Support of its Answer Opposing the Motion.
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 response to the Notice To Show Cause the
Respondent contends that where the parties have
entered into a Stipulation for Certification Upon
Consent Election, the issue of whether certain
individuals should be included in the bargaining unit
will be determined by the intent of the parties in
accordance with the Board's decision in Tribune Co.,
190 NLRB No. 65 (1971). The Respondent further
contends that the Board should reconsider its finding
that three of the challenged voters, classified as lead
mechanics, or leadmen, whose ballots would be
determinative of the results of the election, were
supervisors within the meaning of the Act, rather than
employees; in the light of the decision in Fordham
University, 193 NLRB No. 23 (1971), and BASF
Wyandotte Corporation, 193 NLRB No. 101 (1971), a
case cited by Respondent as additional authority. In
reply the General Counsel asserts that the issue here is
not whether the parties intended to include the three
leadmen in the bargaining unit when they stipulated
for a consent election, but whether those men are
supervisors as defined in the Act and thus are
statutorily excluded from the bargaining unit, an issue
which already has been decided by the Board. The
General Counsel also contends that the decision in
Fordham University, 193 NLRB No. 23 (1971), is
inapplicable here. We agree with the General Coun-
sel.
In the election held November 3, 1970, 58 ballots
were cast, 28 for the Union, 22 against, and 8
challenged, a sufficient number to affect the outcome
of the election. However, because the challenged
ballots could have affected the results of the election,
the Union filed timely objections to conduct during
the election. After an investigation of the challenges
and objections, the Regional Director issued a Report
on Challenged Ballots and Objections to Conduct
Affecting Results of Election and Recommendations
388 'F2d 683 (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
194 NLRB No. 158
MacALLISTER MACHINERY CO., INC. 929
to the Board, and an Order Directing Hearing and
Notice of Hearing on December 30, 1970. As no
exceptions were filed, the Board adopted the Regional
Director's Report and Recommendations that one of
the challenges be overruled and that a hearing be
conducted to resolve the issues raised by the seven
remaining challenges and the objections.
After taking evidence, the Hearing Officer recom-
mended that four of the challenges be overruled and
that the remaining three challenges, involving three
leadmen, be sustained on the ground that they
possessed supervisory authority and were not employ-
ees within the meaning of the Act. Accordingly, he
concluded that while the Union's objections had
merit, his disposition of the challenged ballots made
the results of the election determinative of the Union's
representative status. The Respondent filed timely
exceptions again raising the status of the three
leadmen. Upon consideration of the entire record, the
Board issued a Decision and Certification of Repre-
sentative (unpublished), on May 24, 1971, in which it
adopted the findings and recommendations of the
Hearing Officer, certified the Union, and, therefore,
found it unnecessary to pass upon the Union's
objections.
Contrary to the Respondent's contention, and in
agreement with the General Counsel, the intent of the
parties to the stipulation is not relevant here since the
parties cannot stipulate that supervisors be included
in the unit when they are expressly excluded by the
Act. Whether certain individuals are employees or
supervisors is determined by the application of the
facts to the statutory criteria contained in Section
2(11) of the Act and not by any agreement between
the parties. Tribune Co., 190 NLRB No. 65 (1971), is
inapposite since it involved the inclusion or exclusion
of employees and not individuals, as here found by
the Board to be supervisors. Further, we have
considered the Fordham and BASF cases cited by the
Respondent and find them to be factually distinguish-
able from the situation herein. In Fordham, the Board
majority found as a fact that the authority possessed
by the department chairman was vested in the group
of faculty members and was exercised by the
chairman on behalf of the group; while here, by
contrast, the authority was vested in the leadmen by
their Employer, the Respondent on whose behalf they
exercised the authority. In BASF, the Board decided
that a group leader was an employee because neither
the factors on which the Hearing Officer relied nor the
record as a whole warranted the finding that he
possessed or exercised any meaningful authority
2 See Pittsburgh Plate Glass Co. v. NLRB., 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c)
3 In view of our determination herein , we find it unnecessary to pass
sufficient to constitute him a supervisor within the
meaning of the Act.
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 proceed-
ing 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.3
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under
the laws of the State of Indiana engaged in the retail
and wholesale distribution and in the servicing of
heavy duty construction equipment and related
components. The Respondent maintains its principal
office and place of business at Indianapolis, Indiana,
where it has purchased and received goods valued in
excess of $50,000 during the past 12 months, a
representative period, from points located outside the
State of Indiana. During this period the Respondent
received gross revenues in excess of $500,000 from
sales of equipment and parts.
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 ORGANIZATIONS INVOLVED
Local 103, International Union of Operating Engi-
neers, AFL-CIO, and Local 135, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America are labor organizations
within the meaning of Section 2(5) of the Act.
upon the General Counsel's Motion To Strike Portions of the Respondent's
Answer
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All Parts and Service Department employees
employed by the Employer at its Indianapolis,
Indiana, facility, including parts and service
truckdrivers, shipping clerks, countermen, jani-
tors, the service dispatcher, the service analyst, the
warranty write-up man, and the parts expediter,
but excluding office clerical employees, the inven-
tory control analyst, the key punch operator, field
parts salesmen, professional employees, guards,
the warehouse foreman, and all other supervisors
as defined in the Act.
2. The certification
On November 3, 1970, a majority of the employees
of Respondent in said unit, in a secret ballot election
held pursuant to a Stipulation for Certification Upon
Consent Election and conducted under the supervi-
sion of the Regional Director for Region 25 designat-
ed the Union as their representative 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 May
24, 1971, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
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 com-
merce 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
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
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed 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
1419,142 1, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about the week of May 24, 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 June 11, 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
June 11, 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, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
1. MacAllister Machinery Co., Inc. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 103, International Union of Operating
Engineers, AFL-CIO, and Local 135, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America are labor organizations
within the meaning of Section 2(5) of the Act.
3. All Parts and Service Department employees
employed by the Employer at its Indianapolis,
Indiana, facility, including parts and service truckdri-
vers, shipping clerks, countermen, janitors, the service
dispatcher, the service analyst, the warranty write-up
man, and the parts expediter, but excluding office
clerical employees, the inventory control analyst, the
key punch operator, field parts salesmen, professional
employees, guards, the warehouse foreman, and all
other supervisors as defined in the Act constitute a
unit appropriate for the purposes of collective
MacALLISTER MACHINERY CO., INC. 931
bargaining within the meaning of Section 9(b) of the
Act.
4. Since May 24, 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 June 11, 1971, 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 practices
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
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,
MacAllister Machinery Co., 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 103, International Union
of Operating Engineers, AFL-CIO, and Local 135,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All Parts and Service Department employees
employed by the Employer at its Indianapolis,
Indiana, facility, including parts and service
truckdrivers, shipping clerks, countermen, jani-
tors, the service dispatcher, the service analyst, the
warranty write-up man, and the parts expediter,
but excluding office clerical employees, the inven-
tory control analyst, the key punch operator, field
parts salesmen, professional employees, guards,
the warehouse foreman, and all other 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Indianapolis, Indiana, facility copies
of the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional
Director for Region 25 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 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.
(c) Notify the Regional Director for Region 25 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 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."
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
103, International Union of Operating Engineers,
AFL-CIO, and Local 135, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America 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 representative 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 under-
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing in a signed agreement. The bargaining
unit is:
All Parts and Service Department employ-
ees employed by the Employer at its Indian-
apolis, Indiana, facility, including parts and
service truckdrivers, shipping clerks, counter-
men, janitors, the service dispatcher, the
service analyst, the warranty write-up man,
and the parts expediter, but excluding office
clerical employees, the inventory control
analyst, the key punch operator, field parts
salesmen, professional employees, guards,
the warehouse foreman, and all other super-
visors as defined in the Act.
MACALLISTER
MACHINERY CO., 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, 614 ISTA Center, 150 West Market Street,
Indianapolis, Indiana 46204, Telephone 317-633-
8921.