Peerless of America, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1977

229 N.L.R.B. 183 (N.L.R.B. 1977)

PEERLESS OF AMERICA, INC.
Peerless of America, Inc. and Local 1031, Internation-
al Brotherhood of Electrical Workers, AFL-CIO.
Case 13-CA-15876
April 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on October 12, 1976, by Local
1031, International Brotherhood of Electrical Work-
ers, AFL-CIO, herein called the Union, and duly
served on Peerless of America, Inc., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 13, issued a complaint and notice of hearing
on October 21, 1976, 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, complaint, and
notice of hearing before an Administrative 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 20, 1976,
following a Board election in Case 13-RC-13997, 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 October 7, 1976, 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 November 1, 1976, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. Respondent admit-
ted that it has refused upon request to bargain with
the Union since October 7, 1976. Respondent denied
that a majority of its employees in the unit found
appropriate selected the Union as their representa-
tive for the purposes of collective bargaining with
Respondent in the secret ballot election held on May
27, 1976. Respondent denied that on October 7,
1976, when it refused to bargain collectively with the
Union, and continuously thereafter, the Union was,
and continues to be, the duly designated exclusive
collective-bargaining representative of the employees
in the unit found appropriate. Respondent further
' Official notice is taken of the record in the representation proceeding,
Case 13-RC-13997, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
229 NLRB No. 30
denied the conclusory 8(aX5) and (1) allegations and
asserted that the Regional Director improperly
certified the Union as the exclusive collective-bar-
gaining representative of the employees in the unit
found appropriate since the Regional Director failed
to uphold Respondent's meritorious objections to the
election and/or failed to hold a hearing on the
objections.
On November 11, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 18,
1976, 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. Respon-
dent thereafter filed a response to the Notice To
Show Cause, entitled "Opposition to the General
Counsel's Motion for Summary Judgment."
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 its response to
the Nc:;ce To Show Cause, Respondent attacks the
Union's certification on the basis of preelection
conduct by the Union, which Respondent alleges
improperly influenced the results of the election.
Review of the record herein reveals that, pursuant
to a Decision and Direction of Election in Case 13-
RC-13997, an election was held on May 27, 1976,
and was won by the Union. On June 3, 1976,
Respondent filed timely objections to conduct
affecting the results of the election. Following an
investigation, the Regional Director issued a Supple-
mental Decision on Objections and Certification of
Representative on July 20, 1976, certifying the Union
as the collective-bargaining representative of Re-
spondent's employees in the unit found appropriate.
Respondent filed a request for review of the
Supplemental Decision on Objections and Certifica-
tion of Representative with the Board, which
subsequently issued an Order on October 1, 1976,
denying Respondent's Request for Review.
Following a request by the Union on or about
October 5, 1976, that Respondent bargain collective-
ly in good faith with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, Respondent refused to recog-
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967):
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nize and bargain with the Union as the exclusive
collective-bargaining representative of its employees
in the certified bargaining unit. Respondent has
refused to bargain with the Union since October 7,
1976.
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings, but must present specific facts which
demonstrate that there are material facts in issue
which require a hearing.2 Respondent in the instant
case presented no material issues or facts not
admitted or previously determined.
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.3
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.4 We there-
fore 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 FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation engaged in
the manufacture of heat transfer products. Respon-
dent's employees in the appropriate unit are located
in Respondent's Chicago, Illinois, facility, which is
comprised of three buildings on the same lot, one
located directly behind the other. During the last
calendar or fiscal year, a representative period,
Respondent, in the course and conduct of its
business operations, purchased and received at its
Chicago, Illinois, location goods and materials
valued in excess of $50,000, which goods and
materials were shipped directly to Respondent's
Illinois facility from points located outside the State
of Illinois.
We find, on the basis of the foregoing, the
Respondent is, and has been at all times material
2 Western Electric Company, 198 NLRB 623 (1972).
3 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).
4 Respondent's contention that there exists newly discovered evidence is
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
Local 1031, International Brotherhood of Electri-
cal Workers, 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 of
Respondent at its facility located at 5800 North
Pulaski Road, Chicago, Illinois, including the
truckdriver, quality control employees, janitorial
employees, plant clerical employees, and the
metallurgist; excluding office clerical employees,
manufacturers' representatives, technical repre-
sentatives, technical employees, and all guards,
professional employees and supervisors as defined
in the Act.
2. The certification
On May 27, 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 13, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on July 20, 1976, 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 October 5, 1976, 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-
ployees in the above-described unit. Commencing on
or about October 7, 1976, and continuing at all times
thereafter to date, Respondent has refused, and
without merit. All the evidence referred to in Respondent's opposition to the
General Counsel's Motion for Summary Judgment had been raised in the
request for review and was duly considered by the Board.
184
PEERLESS OF AMERICA, INC.
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 Respondent has, since
October 7, 1976, and at all times thereafter, refused
to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and by such 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 Peerless of America, Inc., 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 com-
merce.
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 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. Peerless of America, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 1031, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent at its facility -located at 5800 North
Pulaski Road, Chicago, Illinois, including the truck-
driver, quality control employees, janitorial employ-
ees, plant clerical employees, and the metallurgist,
excluding office clerical employees, manufacturers'
representatives, technical representatives, technical
employees, and all guards, professional employees
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 July 20, 1976, 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 October 7, 1976, 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, Respon-
dent 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 the Respondent,
Peerless of America, Inc., 5800 North Pulaski Road,
Chicago, Illinois, 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
conditions of employment with Local 1031, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees of
Respondent at its facility located at 5800 North
185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pulaski Road, Chicago, Illinois, including the
truckdriver, quality control employees, janitorial
employees, plant clerical employees, and the
metallurgist, excluding office clerical employees,
manufacturers' representatives, technical repre-
sentatives, technical employees, and all 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 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 5800 North Pulaski Road, Chicago,
Illinois, copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms
provided by the Regional Director for Regional 13,
after being duly signed by Respondent's representa-
tive, 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 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
s 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 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
1031, International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive representa-
tive 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 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 of Respondent at its facility located at
5800 North Pulaski Road, Chicago, Illinois,
including the truckdriver, quality control
employees, janitorial employees, plant cleri-
cal employees, and the metallurgist, exclud-
ing office clerical employees, manufacturers'
representatives, technical representatives,
technical employees and all guards, profes-
sional employees and supervisors as defined
in the Act.
PEERLESS OF AMERICA,
INC.
186