North Electric Co.

National Labor Relations Board - Board Decisions

Jan 25, 1979

240 N.L.R.B. 220 (N.L.R.B. 1979)

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Electric Company, Plant No. 10, Gray, Tennes-
see and Communications Workers of America. Case
10 CA 13000
January 25, 1979
DECISION AND ORDER
BY( CHAIRMAN FANNING AND MEMBERS J NKINS
AND PI-NI.Lo
Upon a charge filed on August 11, 1977, by Com-
munications Workers of America, herein called the
Union, and duly served on North Electric Company,
Plant No. 10, Gray. Tennessee. herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board. by the Regional Director for Region
10, issued a complaint and notice of hearing on Au-
gust 18, 1977, against Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (I) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of hear-
ing before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on April 1, 1977. fol-
lowing a Board election in Case 10 RC 10126. the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; ' and that, commenc-
ing on or about April 18. 1977, 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, and to fur-
nish it information necessary for the purpose of col-
lective bargaining, although the Union has requested
and is requesting it to do so. On August 25, 1977.
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint, submitting affirmative defenses, and
requesting that the complaint be dismissed. Respon-
dent admits all of the factual allegations of the com-
plaint, including its refusal to recognize and bargain
with the Union, and to furnish it information neces-
sary for the purpose of collective bargaining. Re-
spondent denies that the Union is the representative
Io ()fficial notice I[ tken of the ecord i the t eprserltaon pr..cccdig.
(aec 10 R(' 101126. Ihr tIerm "recold " IS defineld im Sec 1()21t.n and1
1112 69(g) of the Boalrd's Rules aind RCeulalitr.n, Series 8. as allineirded See
1.I( lr ,,i\ i cnm. In. 1l6NI RB93 11967). enrd 3881 2d683 (4th(lr
19)h): (/idn 14' Bcvri.u (m. 167 N RBH ISI 119671 enifd 415 I 2d 2(
15t1h ('Ir 1949). Inltrltpl ( 2 / . ni[/. 19 Spp 573 () ( V. 196' :
I /i't! (Hr-p. 164 NI RB 378 1967,. crud 37 I 2 91 7th ('it 196f) Se,
9
d) if the NI RA . as .lamended
240 NL.RB No. 32
of the employees described in the complaint and it
denies that it violated Section 8(a)(5) and ( 1) of the
Act.
On September 12, 1977, counsei for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached, submit-
ting. in effect, that Respondent is attempting to reliti-
gate issues which it raised or could have raised in the
underlying representation proceeding. Thereafter,
Respondent filed a response to the Motion for Sum-
mary Judgment, renewing and incorporating by ref-
erence its answer to the complaint. Subsequently, on
September 28, 1977, the Board issued an order trans-
ferring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to the Notice To
Show Cause, renewing and incorporating by refer-
ence its previous answer to the complaint and its pre-
vious response to the Motion for Summary Judge-
ment.
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
As reflected above, Respondent's answer admits
all of the factual allegations of the complaint, includ-
ing its refusal to recognize and bargain with the
Union which has been certified as the collective-bar-
gaining representative of the employees described in
the complaint. and to furnish the Union information
necessary for the purpose of collective bargaining. In
its answer to the complaint, and in its responses to
the Motion for Summary Judgment and Notice To
Show Cause, Respondent attacks the Board's rulings
in the representation proceeding.2 As an affirmative
defense in its answer, Respondent contends that its
objections to the second election held on October 6
and 7, 1976, should have been sustained either as
unlawful misrepresentations under Hollywood Ce-
ramlics (Compan,. Inc., 140 NLRB 221 (1962), which
was operative at the time of the second election, or as
deceptive campaign practices under the Board's deci-
sion in Shopping Ktart Food MIarket, 228 NLRB 1311
il al leciol held oni (tiohber and 11 , 1974 the nion lost bh 1.441
t, 72 lcs arid fried lltieln l obhectl ns to cnduct affecting he result,.s he
Boald r. l ts D[)eclon. ()rder., and [)lrectlin i)f Secnd lection reported 1
225 N RB I 114 1
97
6). set he elccl-n aside. Pursuant to that [)ecisiin, a
secold lctlinn u.as conducted Ihe tall\ as h682 ifr. nd 679 againsl the
'ctrilolclr there ere 2 ch;dllenged hallIt,. an nslfflcent numbher to affect
thile rtllt,
NORTH ELECTRIC COMPANY 221
(1977), which overruled Hollywood Ceramics.3 low-
ever, in General Knit of Californiia, Inc., 239 NLRB
No. 101 (1978), the Board reversed the Shopping Karl
decision and stated that it was returning "to the stan-
dard of review for alleged misrepresentations most
cogently articulated in Hollwood (Ceramics Company.
Inc." Accordingly, we conclude that Respondent's
misrepresentation objection was properly overruled
under those standards in the underlying representa-
tion proceeding.4
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by Respondent in this proceeding.
except as to its alleged affirmative defense with re-
spect to Shopping Kart, supra. which we have found
to be without merit, were or could have been litigated
in the prior representation proceeding, and 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.
We therefore find that 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 FA(Cr
I TH[ BUSINESS OF- RSPONDENT
Respondent is, and has been at all times material
herein, an Ohio corporation. with an office and place
of business located at Gray, Tennessee, where it is
The Board. n its Supplemental )ecrlsin and ('ertlifca3in of Represen-
tative. issued on April 1. 1977. adopted the Regional Director', findings, an d
recommendatlons and erruled Respondenl's hbjections to the eletion
(Not reported in nolumes of Board decslotli. ) In Ihe SupplementarlI )eci-
sion. Member Penello relied on his rationale In his dissenting opnon ,, In
Ereno I.e.i, 217 NI.R 239 ( 1975). and !leda,/i4 ncd/iirrl Scrn, 'r. Irl .212
NLRB 582 1974). and former Memiber Walther rehlied on .ans sie, of he
applicahili of Illl,/in,rd (eralmi-i in fnding Ihat the alleged rnlrereprec-
tamtions did nt warrant setting aside the electilon ior directing a hearing. In
Shorppng Kuart. the Bard abah.ndioned ts ll/,ii n m ( rinltn rule anid held
Ihat an eleclln would be set aide here a part? hasl engaged in deptaie
campaign praciices such a, Imnprroper isolinmg the Board .anid its pro-
cesses or he use of foreed dcunients which render itecra unable i r.oig-
nize the propaganda for what it is
As indicated In n . r1qriu. Member Penello did nlt rel; v 11 ndIrll JIir,
(eramwr s in the representatiol proceedinig and dores n d so r1lno See hs
dissenting orpinin i (nerrtl Anti. lura
See Prhurrh Phnc (;lrr ( , x \ I R B 313 I S 146. 162 (I I41:
Rules and Regulahllonrs oI the Boardl Sets 12 t7(ri and 10)2 t9(c
engaged in the manufacture of telephone switching
equipment. Respondent. during the past 12 months.
which period is representative of all times material
herein, sold and shipped finished products valued in
excess of $50,000 directly to customers located out-
side the State of Tennessee.
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 juris-
diction herein.
II HE I.ABOR OR(;ANIZATO IN '()O '\ E)
Communications Workers of America is a labor
organization within the meaning of Section 2(5) of
the Act.
I11 Itl L N1 AIR ABOR PRA,( IES
A. The Representation Proceeding,
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All hourly paid production and maintenance
employees. warehousing and shipping employ-
ees of the Respondent's Plant #10, Gray. Ten-
nessee. operations, but excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
2. The certification
On October 6 and 7, 1976, a majority of the em-
ployees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the Re-
gional Director for Region 10, designated the Union
as their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of the
employees in said unit on April i, 1977. 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 Reftusal
Commencing on or about April 4. 1977, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
plo ees in the above-described unit, and to furnish it
NORTH ELECTRIC COMPANY !
.. ... .. .
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with information necessary for the purpose of collec-
tive bargaining. Commencing on or about April 18.
1977, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
April 18, 1977, 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 en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
IV. i. lF FCI 01 i ti Ni AIR ABOR PRA( I I('S T'ON
(1OMMi R(I
The activities of Respondent, set forth in section
Ill, above, occurring in connection with its opera-
tions described in section 1, above, have a close, inti-
mate, 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 commerce.
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
and to provide the Union, on request, information
necessary for collective bargaining.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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 Poulrr)v Compatn. Inc. 136
NLRB 785 (1962); ('ommerce Company d/i, 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:
CON(CLUSIONS Of LAW
1. North Electric Company, Plant No. 10. Gray,
Tennessee, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Communications Workers of America is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All hourly paid production and maintenance
employees, warehousing and shipping employees of
Respondent's Plant #10. Gray, Tennesse, opera-
tions, but excluding all office clerical employees, pro-
fessional employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since April 1, 1977, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about April 18, 1977, and at
all times thereafter, to bargain collectively with the
above-named organization as the exclusive bargain-
ing representative of all the employees of Respon-
dent in the appropriate unit, and to provide it with
information necessary for the purpose of collective
bargaining, Respondent has engaged in and is engag-
ing 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 them in Sec-
tion 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 Re-
lations Board hereby orders that the Respondent.
North Electric Company, Plant No. 10, Gray. Ten-
nessee. 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 con-
ditions of employment with Communications Work-
ers of America as the exclusive bargaining represen-
NORTH ELECTRIC COMPANY 223
tative of its employees in the following appropriate
unit:
All hourly paid production and maintenance
employees, warehousing and shipping employ-
ees of the Respondent's Plant 10. Gray. Ten-
nessee, operations, but excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
(b) Refusing to provide the above-named Union.
upon request, information necessary for the purpose
of collective bargaining.
(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, and provide the Union, upon re-
quest, information necessary for the purpose of col-
lective bargaining.
(b) Post at its Gray, Tennessee, facility, copies of
the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 10, after being duly signed by Re-
spondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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.
6 In the event that this Order is enforced by ajudgment of a United States
Court of Appeals. the words in the notice reading "Posted b Order of the
National Labor Relations Board" shall read Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board/'
(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
No ICE(r To EPI O)I E S
POSTFD BY ORDER OF 1IHE
NAIIONAI. LABOR REI.ATIONS BOARD)
An Agency of the United States Government
WE WILt. NOi refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Com-
munications Workers of America as the exclu-
sive representative of the employees in the bar-
gaining unit described below.
WE WILL NOT refuse to provide the Union.
upon request, information necessary for the pur-
pose of collective bargaining.
WE WiLt. 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement and provide the Union, upon request,
information necessary for the purpose of collec-
tive bargaining. The bargaining unit is:
All hourly paid production and mainte-
nance employees, warehousing and shipping
employees of the Respondent's Plant #10,
Gray. Tennessee, operations, but excluding all
office clerical employees. professional em-
ployees, guards and supervisors as defined in
the Act.
NORTH ELLCTRIC COMPANY, PANT No 10
GRAY, TENNESSEE
NORTH ELECTRIC COMPANY
. . .