Rescar, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1981

254 N.L.R.B. 999 (N.L.R.B. 1981)

RESCAR,
Rescar,
steelworkers
Rescar,
8(a)(5) 2(6)
1980,
thereafter
pursuant
8(a)(5)
a
~roceeding.~
Accordingly,
' Ofkid the record representation proceed- the following:
in& Cne 13-RC-15155. u term Sea.
102.69(g) Seria u
Elmtmrysremc Inc.. 166 (1967), F.Zd
(Ith Cu. 1%8); Age Bewmge Ca, (1967).
F.Zd Inrenyp Ca Penello, F.Supp.
@.C.Va 1%7); Follett Corp., 164 (1%7), cnfd. F.2d Pirrsbugh Hare Glas Ca N.LR.B.
1966); Sec. 9(d) NLRA, u Rula and b r d , Secs. 102.67(0 102.69(c).
INC. 999
Inc. and United Steelworkers of America,
AFL-CIO. Case 13-CA-20 124
February 26, 1981
DECISION AND ORDER
Upon a charge filed on July 10, 1980, by United
of America, AFL-CIO, herein called
the Union, and duly served on Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 13, issued a complaint on July
24, 1980, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the
meaning of Section and (1) and Section
and (7) of the National Labor Relations Act, as
amended. Copies of the charge and the complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 14,
1980, following a Board election in Case 13-RC-
15155, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about July 1, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On July 30, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On November 28, 1980, counsel for the General
Counsel fded directly with the Board a Motion for
Summary Judgment. Subsequently, on December 9,
the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
filed a response to the Notice To Show
Cause.

Upon the entire record in this proceeding, the
Board makes the following:
notice is taken of in the
the "record" is defined in 102.68
and of the Board's Rula and Regulations, 8, amended.
See LTV
Golden
26 (5th Cir. 1969);
(7th Cir. of the
NLRB 938
167 NLRB
v.
NLRB 378
mended.
enfd. 388
151
269
397
enfd. 415
683
573
91
254 NLRB No. 122
Ruling on the Motion for Summary Judgment
Respondent's answer attacks the validity of the
Union's certification on the basis of its objections
to the election in the underlying representation
proceeding. The General Counsel argues that all
material issues have previously been decided. We
agree with the General Counsel.
A review of the record herein, including the
record in Case 13-RC-15155, discloses that on
August 31, 1979, to a Stipulation for Cer-
tification Upon Consent Election, an election was
held among the employees in the stipulated unit.
The tally of ballots showed that, of approximately
70 eligible voters, 38 cast valid ballots in favor of,
and 27 against, the Union; there were 3 challenged
ballots, an insufficient number to affect the results.
Respondent filed timely objections to the election.
Following an investigation, the Regional Director
issued a report on October 22, 1979, which ordered
that a hearing be held. After the hearing, the Hear-
ing Officer, on February 12, 1980, issued a report
which recommended overruling the objections and
issuing a certification of representative. Thereafter,
Respondent fded exceptions to the Hearing Offi-
cer's recommendations. On May 14, 1980, the
Board adopted the Hearing Officer's recommenda-
tions, and certified the Union as the exclusive bar-
gaining representative of employees in the stipulat-
ed unit.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section is not entitled
to relitigate issues which were or could have been
litigated in a prior representation
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
See v. 313 U.S. 146, 162 (1941);
Regulations of the and
OF
Rescar,
office
Kenton,
2(6)
11.
2(5)
111.
9(b)
Rosales
Kenton,
9(a)
The 3
8(a)(5)
111,
8(a)(5)
Inc.,
962),
F.2d 600 1964),
Burnett
(1964), F.2d
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. THE BUSINESS RESPONDENT
Inc., a Texas corporation, is engaged in
the repair of railway freight cars, and maintains an
and facility for that purpose at 2135 South
Chicago, Illinois. In calendar year 1979, a
representative period, Respondent purchased and
received at its Chicago, Illinois, facility goods and
services valued in excess of $50,000 directly from
points outside the State of Illinois.
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 and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section
of the Act.
THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section of the
Act:
All production and maintenance employees, in-
cluding plant clericals and Antonio
and Antonio Hernandez, employed by Respon-
dent at its facility at 2135 South Chi-
cago, Illinois, but excluding guards and super-
visors as defined by the Act.
2. The certification
On August 31, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 13, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on May 14, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section of the Act.
B. Request To Bargain and Respondent
Refusal
Commencing on or about June 17, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about July 1, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
July 1, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR

PRACTICES UPON COMMERCE

The activities of Respondent, set forth in section
above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1 enfd. 328
(5th Cir. cert. denied 379 U.S. 817;
Construction Company, 149 NLRB 14 1 9,
1421 enfd. 350 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
RESCAR,
Rescar,
2(6)
2(5)
Rosales
Kenton,
9(b)
9(a)
8(a)(5)
labor-practices
8(a)(l)
The
2(6)
lqc )
Rescar,
Steelwork-
e n
Rosales
Kenton,
"Appendi~."~
States
ORDER
WILL colletively
AFL-
employ-
INC.
1. Inc., is an employer engaged in com-
merce within the meaning of Section and (7)
of the Act.
2. United Steelworkers of America, AFL-CIO,
is a labor organization within the meaning of Sec-
tion of the Act.
3. All production and maintenance employees,
including plant clericals and Antonio and
Antonio Hernandez, employed by Respondent at
its facility at 2135 South Chicago, Illinois,
but excluding guards and supervisors as defined by
the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section of the Act.
4. Since May 14, 1980, 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
of the Act.
5. By refusing on or about July 1, 1980, 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 prac-
tices within the meaning of Section 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,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair
within the meaning of Section of the Act.
7. aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section and (7) of the Act.
ORDER

Pursuant to Section
of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Inc., Chicago, Illinois, 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 United
of America, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees, in-
cluding plant clericals and Antonio
and Antonio Hernandez, employed by Respon-
dent at its facility at 2135 South Chi-
cago, Illinois, but excluding guards and super-
visors as defined by the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Chicago, Illinois, facility copies of
the attached notice marked Copies
of said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent'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
notices to employees are customarily posted. Rea-
sonable 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 here-
with.
In the event that this Order is enforced by a Judgment of a United
Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant 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 OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE NOT refuse to bargain
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Steelworkers of America,
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our
ees
Ro-
Kenton,
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
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 agreement. The bargaining unit is:
All production and maintenance employees,
including plant clericals and Antonio
sales and Antonio Hernandez, employed by
us at our 2135 South Chicago, Illi-
nois facility, but excluding guards and super-
visors as defined by the Act.