Our-Way, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1980

247 N.L.R.B. 1441 (N.L.R.B. 1980)

OUR-WAY. INC
Our-Way, Inc./Our-Way Machine Shop, Inc. and
International Brotherhood of Firemen & Oilers,
AFL-CIO. Case 10-CA-14178
February 28, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on November 20, 978, by
International Brotherhood of Firemen & Oilers, AFL-
CIO, herein called the Union, and duly served on Our-
Way, Inc./Our-Way Machine Shop, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 10, issued a complaint and notice of
hearing on December 14, 1978, against Respondent,
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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 12,
1978, following a Board election in Case 10-RC-
10825, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about November 13, 1978, 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, and commencing on or about November 13,
1978, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively by refusing, and continuing to refuse, to
provide information requested by the Union. On
December 27, 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint, and pleading an affirma-
tive defense.
On December 3, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 7,
1979, the Board issued an order transferring the
' Official notice is taken of the record in the representation proceeding, Case
10-RC-10825, as the term "record" is defined in Secs. 102.68 and 102.69(g)
of the Board's Rules and Regulations, Series 8, as amended. See LTV
Flectrosystemtn Inc. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26
247 NLRB No. 177
proceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent thereaf-
ter filed a response to the 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, Respondent denies
the allegations that the Union was selected by a
majority of its employees, was duly certified, and is the
exclusive collective-bargaining representative of its
employees, and the allegation that the Union request-
ed certain information. Respondent admits the allega-
tions that the Union requested bargaining and that it
refused to furnish the requested information and
refused to bargain collectively with the Union. Re-
spondent also asserts an affirmative defense based on
newly discovered and previously unavailable evidence.
In response to a motion for summary judgment, an
adverse party may not rest on denials in its pleadings,
but must present specific facts which demonstrate that
there are material facts in issue which require a
hearing. Western Electric Company, Hawthorne
Works, 198 NLRB 623 (972); Peerless of America,
Inc., 229 NLRB 183 (1977). For the reasons explained
below, we find that Respondent has not presented any
material issues of fact not admitted or previously
determined, and has failed to meet its burden.
Review of the record herein reveals that, pursuant
to a Stipulation for Certification Upon Consent
Election in Case 10-RC-10825, an election was held
on November 4, 1976, in which the challenged ballots
were determinative of the results of the election. In
addition, Respondent filed timely objections to the
election. Thereafter, on September 20, 1978, the Board
issued a Decision and Order2 which, inter alia,
overruled the objections in their entirety; determined a
number of challenges; and directed the Regional
Director to open and count certain challenged ballots,
to issue a revised tally of ballots, and, if the Union
were designated by a majority, to issue a certification
of representative. Thereafter, on October 2, 1978 the
Regional Director issued a revised tally of ballots
showing that the Union received a majority of the
valid ballots cast. Subsequently, on October 12, 1978,
(5th Cir. 1969); Inferrype Co. v. Penellao 269 F.Supp. 573 (D.C.Va. 1967);
Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
:238 NLRB 209.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director certified the Union as the
collective-bargaining representative in the unit found
appropriate. Thus, these matters raised by Respondent
in its answer to the complaint have been previously
determined.
Paragraph 10 of the complaint alleges that, on or
about October 18, 1978, the Union requested the
following information:
The names of all employees that have been
transferred, laid off, recalled from lay-off, any
changes in employment, wage increase (sic), and
any and all changes in operations [and] the
names, addresses, wage rates, classifications and
all existing benefits being paid to [Respondent's]
Employees [in the unit . .].
Respondent denies this allegation, but admits that
"[o]n or about November 13, 1978, and at all times
thereafter, Respondent refused and has continued to
refuse to furnish the information requested by the
Union as alleged in paragraph 10." Thus, Respondent
has admitted the essential allegations of the complaint
in this matter. In addition, the General Counsel
attached to his Motion for Summary Judgement
certain exhibits, including a copy of the Union's letter,
apparently dated October 18, 1978, requesting the
above information and a copy of Respondent's No-
vember 13, 1978, letter of refusal which acknowledges
"receipt of your letters of November 6, 1978, request-
ing a meeting date . . . and requesting [the informa-
tion]." Respondent does not contest the accuracy or
authenticity of the exhibits, and, in its response to the
Notice To Show Cause, stated that the evidence cited
by the General Counsel would be admissible at a
hearing. Thus, there are no material issues of fact with
regard to the request for information,' the information
requested, or Respondent's refusal to furnish the
information.
In its answer to the complaint, Respondent asserts
as an affirmative defense that "both newly discovered
evidence and evidence which was previously unavail-
able to the Respondent will demonstrate that any
certification of [the Union] as the collective bargaining
representative of the employees of the Respondent in
the unit . . . was improper." In neither its answer to
the complaint nor its response to the Notice To Show
Cause has Respondent specified any newly discovered
or previously unavailable evidence. Thus, Respon-
dent's affirmative defense raises no material issues of
fact warranting a hearing.
In its response to the Notice To Show Cause,
Respondent contends that, as the representation pro-
' The apparent difference as to the date of the Union's request is not
material as Respondent acknowledges that the information was requested at
least by November 6, 1978. and that it refused to furnish the information
requested.
' In General Knil of California. Inc.. 239 NLRB 619 1978), the Board
ceeding was conducted at a time when Shopping Karl
Food Market, Inc., 228 NLRB 1311 (1977), was in
effect, consideration of its objections alleging material
misrepresentations was precluded, and that, as the
applicable law has been changed4 and retroactively
applied, a hearing must be held on Respondent's
objections. However, the majority of the three-mem-
ber panel of the Board deciding the matter did
consider the objections on their merits and found the
alleged misrepresentations unobjectionable. Footnote
4 of the Decision and Order (238 NLRB 209) reads, in
relevant part:
In adopting the Administrative Law Judge's
overruling of the Employer's objections, Chair-
man Fanning does not rely on Shopping Karl
Food Market, Inc., 228 NLRB 1311 (1977), but
reaches the same result under the standards of
Hollywood Ceramics Company, Inc., 140 NLRB
221 [1962]. Member Truesdale concludes that,
under any view of the applicable law, the matters
raised by the objections do not warrant setting
aside the election.
Thus, this matter has been previously determined.
From the foregoing, it is apparent that the only
issue raised by Respondent is the validity or the
certification in Case 10-RC-10825 and that Respon-
dent is endeavoring to relitigate issues considered and
determined in the representation proceeding.
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.'
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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
Respondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
majority decided that the standards of Hollywood Ceramics Company,
Inc.. 140 NLRB 221 (1962), would apply to issues of material misrepresenta-
tions.
'See Pittsburgh Ploate 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).
1442
OUR-WAY, INC
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a Georgia corporation, with an office and place
of business located in Atlanta, Georgia, where it is
engaged in the manufacture and sale of machinery.
Respondent, during the past calendar year, which
period is representative of all times material herein,
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.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Firemen & Oilers,
AFL-CIO, is a labor organization 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 Respondent constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding truckdrivers and helpers, employed by
Respondent at its Bernina Street, Krog Street,
and Elizabeth Street, Atlanta, Georgia, locations,
but excluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
2. The certification
On November 4, 1976, 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 bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on October 12, 1978, 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 November, 6, 1978, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about November 13, 1978, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all the employees in said unit.
Accordingly, we find that Respondent has, since
November 13, 1978, 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.
C. The Request for Information and Respondent's
Refusal To
Furnish It
Commencing on, about, or before November 6,
1978, and at all times thereafter, the Union has
requested Respondent to provide it with the following
information:
The names of all employees that have been
transferred, laid off, recalled from lay-off, any
changes in employment, wage increase (sic), and
any and all changes in operations [and] the
names, addresses, wage rates, classifications, and
all existing benefits being paid to [Respondent's]
Employees [in the unit . .].
Commencing on or about November 13, 1978, and
continuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to provide the
Union with the requested information, which relates
to the conditions of employment and wages of the
employees in the appropriate unit. It is well settled
that such information is relevant and necessary for
purposes of collective bargaining and that an employer
is required, upon request, to furnish such information
to the exclusive bargaining representative of its unit
employees. Oregon Coast Operators Association, et al.,
113 NLRB 1338 (1955), enfd. 246 F.2d 280 (9th Cir.
1957).
Accordingly, we find that Respondent has, since
November 13, 1978, and at all times thereafter,
refused to furnish the Union with information relating
to the employment conditions and wages of the
employees in the appropriate unit, and that, by such
1443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (I) 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
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 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 appro-
priate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
We shall order that Respondent furnish the Union
with information it has requested relating to employ-
ment conditions and wages of the unit employees.
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 recognized
bargaining representative in the appropriate 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 (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, on the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Our-Way, Inc./Our-Way Machine Shop, Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Brotherhood of Firemen & Oilers,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees,
including truckdrivers and helpers, employed by
Respondent at its Bernina Street, Krog Street, and
Elizabeth Street, Atlanta, Georgia, locations, but
excluding all office clerical 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 October 12, 1978, the above-named labor
organization has been and now is the certified and
exclusive representative of all the employees in the
aforesaid appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about November 13, 1978, 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 refusing on or about November 13, 1978, and
at all times thereafter, to furnish the Union with
employment and wage data 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.
7. By the aforesaid refusal to bargain and refusal to
provide information, Respondent has interfered with,
restrained, and coerced, and is interfering with,
restraining, and coercing, employees 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.
8. 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, Our-
Way, Inc./Our-Way Machine Shop, Inc., 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 International Brotherhood of
Firemen & Oilers, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the following
appropriate unit:
All production and maintenance employees, in-
cluding truckdrivers and helpers, employed by
Respondent at its Bernina Street, Krog Street,
and Elizabeth Street, Atlanta, Georgia, locations,
1444
OUR-WAY, INC
but excluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
(b) Refusing to furnish the Union pertinent employ-
ment and wage data.
(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
the 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) Furnish forthwith to the Union the employment
and wage data requested by it.
(c) Post at its Atlanta, Georgia, plants copies of the
attached notice marked "Appendix. " , 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 immedi-
ately 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.
(d) 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.
' 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."
APPENDIX
NOTICE To EMPIOYEES
POSTED BY ORDI.R O 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 Inter-
national Brotherhood of Firemen & Oilers, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT refuse to furnish the Union
pertinent employment and wage data.
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 the 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 employees,
including truckdrivers and helpers, employed
by us at our Bernina Street, Krog Street, and
Elizabeth Street, Atlanta, Georgia, locations,
but excluding all office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
WE WILL furnish forthwith to the Union the
employment and wage data requested by it.
OUR-WAY, INC./OUR-WAY MACHINE
SHOP, INC.
1445