Rish Equipment Co.

National Labor Relations Board - Board Decisions

May 19, 1967

164 N.L.R.B. 782 (N.L.R.B. 1967)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rish Equipment Company, Eastern Division
of Bluefield Supply Company and
International Union of Operating Engi-
neers, Local Union No. 158 , AFL-CIO.
Case 5-CA-3694.
May 19, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
Upon a charge filed by International Union of
Operating Engineers, Local Union No. 158,
AFL-CIO, herein called the Union, the General
Counsel for the National Labor Relations Board, by
the Regional Director for Region 5, issued a
complaint dated February 17, 1967, against Rish
Equipment Company, Eastern Division of Bluefield
Supply Company, herein called the Respondent,
alleging that the Respondent had engaged in and
was engaging in unfair labor practices within the
meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of
the National Labor Relations Act, as amended. The
Respondent filed a timely answer, admitting in part
and denying in part the allegations of the complaint,
and requesting that the allegations be dismissed.
Copies of the charge, complaint, and notice of
hearing were duly served on the Respondent and the
Union.
On March 3, 1967, the General Counsel filed with
the Board a motion for summary judgment,
submitting that Respondent's answer does not
allege, nor has the General Counsel been informed
of, any new evidence relevant to the issues that the
Respondent desires to place in issue in this
proceeding which were not previously litigated and
decided by the Board;' requesting that the Board
enter judgment against the Respondent on the
pleadings herein, making findings of fact as alleged
in the complaint; and, concluding that, as a matter of
law, the Respondent had violated Section 8(a)(1) and
(5) of the Act as alleged in the complaint, and order
an appropriate remedy therefor. On March 7, the
Board, through its Associate Executive Secretary,
issued an order transferring proceeding to the Board
and notice to show cause, in which it ordered that
the instant proceeding be transferred and continued
before the Board and gave notice that cause be
shown, in writing, filed with the Board in
Washington, D.C., on or before March 21, 1967, why
the motion for summary judgment should not be
granted. No response to the notice to show cause
was received by the Board within the prescribed
time limit.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
' Cases 5-CA-3379 and 5-RC-5359 not published in NLRB
volumes.
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY JUDGMENT
The record before us establishes that on
November 29, 1965, the Regional Director for
Region 5 issued a Decision and Direction of Election
in Case 5-RC-5359, in which a description of the
appropriate unit of the Respondent's employees was
set forth. On December 30, 1965, and January 3,
1966, a secret-ballot election was conducted under
the direction of the Regional Director for Region 5
among the employees in the appropriate unit; the
election was inconclusive inasmuch as the
challenged ballots were sufficient in number to
affect the results of the election. On January 10,
1966, the Respondent filed timely objections to
conduct affecting the ' results of the election. On
January 20, 1966, the Acting Regional Director,
following an investigation of the objections and
challenges, in a Supplemental Decision ordered a
hearing on the Employer's objections and to, resolve
the issues raised by'seven of the eight challenges;
with ' respect to the eighth and final challenge, the
Acting Regional Director noted that, if
determinative, it would,be resolved in an unfair labor
practice proceeding, Case 5-CA-3379. The
Supplemental Decision further provided that if no
exceptions were filed to the Hearing Officer's
recommendations, they would be adopted.
On February 7 and 8, 1966, a hearing was
held pursuant to the Supplemental Decision.
On March 16, 1966, Hearing Officer Maurice
V. Nelligan, Jr., issued his report on objections
and challenges, wherein he recommended that the
Employer's objections to the conduct of the election
be overruled, that the challenge to the ballot of
Morgan Bartlett be sustained, and that the chal-
lenges to the ballots of James Carter, Alfred
Dunham, Robert Meadows, Thomas Saunders,
Herman Phlegar, Jr., and Edward Bergloff be
overruled and their ballots 'be opened and counted.
No exceptions to these, recommendations were filed
within the time prescribed therefor.
On April 18, 1966, the Regional Director for
Region 5 issued a Second Supplemental Decision
and Order, adopting the Hearing Officer's recom-
mendations, absent exceptions thereto, and
stating that 'he would open and count the ballots of
Carter, Dunham, Meadows, Saunders, Phlegar, and
Bergloff and thereupon prepared and caused to 'be
served on the parties a ' revised tally of ballots,
including therein the count of said ballots, He
further stated that in the event the'revised tally of
ballots showed that the Petitioner ' received a
majority of the valid ballots cast, a ,certification of
representatives would issue, but if the'revised tally
164 NLRB No. 107
RISH EQUIPMENT CO.
showed that the challenged ballot of
Richard J. Brooke was determinative of the, results
of the election, the matter would'be^held in abeyance
pending final, resolution of Case 5-CA-3379.
On April 27, 1966, the Regional Director issued a
revised tally of ballots, which showed that the
challenged ballot of Richard J. Brooke was still
determinative of the election.
On May 20, 1966, Trial Examiner Sidney Sherman
issued a Decision and Recommended Order in Case
5-CA-3379, finding that Richard J. Brooke, an
employee of the Respondent, had been
discriminatorily discharged in violation of Section
8(a)(3) of the Act, and ordering the Respondent offer
him immediate and full reinstatement to his former
or substantially equivalent position. On July 5, the
Board, by its Associate Executive Secretary, issued
an Order affirming in its entirety the Decision and
Recommended Order of the Trial Examiner. On
July 22, 1966, the Regional Director issued a'second
revised tally of ballots, including therein the count of
Brooke's ballot, which showed that a majority of the
valid votes in the election had been cast for the
Petitioner. Accordingly, on July 28, 1966, the
Regional Director 'certified the Union as the
exclusive bargaining representative of the
Respondent's employees in the appropriate unit.
The complaint substantively alleges the
appropriateness of the unit, the election, and the
certification in Case 5-RC-5359, all of which
matters were or could have been litigated in that
case. It further alleges that the Union, on or about
August 3 and 9 and September 14, 1966,,requested
that the Respondent bargain with it with'respect to
the, employees in the 'certified unit, and that
Respondent refused the requests at all material
times herein, in violation of Section 8(a)(5) of the Act.
The answer contains a general denial of these
allegations.
We find that Respondent's denial of the General
Counsel's allegations relative to Case 5-RC-5359
raises no issues which are properly triable in the
instant unfair labor practice proceeding, it being
well established that, absent newly discovered or
previously unavailable evidence, issues which were
or could have been raised in a representation
proceeding may not 'be ' relitigated in a related
refusal-to-bargain proceeding,2 and at no time has
Respondent alleged the , existence of newly
discovered or previously unavailable ' evidence
relevant to such issues. We further find that the
Respondent's denial of the General Counsel's
allegations relative to the Union's bargaining
demands raises no triable factual issues. The motion
for summary judgment contends that exhibits 1, 2,
and 3, attached thereto, comprising copies of two
783
letters and a' telegram addressed to Respondent to
which the Respondent made no,reply, establish the
demand for bargaining allegations of the complaint.
On the basis of this exhibit evidence, and absent any
countervailing evidence or' response by Respondent
to the notice to show cause, we agree with this
contention and find, as facts, that on August 3 and 9
and September 14, 1966, the Union requested that
Respondent bargain collectively with the Union as
the exclusive bargaining representative of all the
employees of Respondent in the certified unit, with
respect to rates of pay, wages, hours of employment,
and other conditions of employment, and that the
Respondent, at all times since August 3, 1966, has
refused and continues to refuse to bargain
collectively in good faith with the Union as the
exclusive representative of all the employees of
Respondent in the certified unit.
All material factual issues thus having been
decided by the Board or admitted in the answer to
the complaint, there are no matters requiring a
hearing before a Trial Examiner. Accordingly, the
General Counsel's motion for summary judgment is
granted. On the basis of the record before it, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is and at all times material herein has
been a corporation duly organized and existing by
virtue of the laws of the State of West Virginia,
having a place of business in Salem, Virginia, where
it is engaged in the business of servicing heavy road
building and construction equipment. During the 12-
month period preceding the filing of the complaint, a
representative period, the Respondent sold and
shipped goods, materials, and products valued in
excess of $50,000 from its place of business in
Salem, Virginia, directly to points located outside
the Commonwealth of Virginia, and made purchases
of goods and equipment valued in excess of $50,000
from points and places outside the Commonwealth
of Virginia.
Respondent admits, and we find, 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.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local
Union No. 158, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
' Pittsburgh Plate Glass Company v N L R B, 313 U S 146,
Collins & Atkman Corporation , 160 NLRB 1750, United States
Rubber Company, 155 NLRB 1298
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein the following
employees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All mechanics, service personnel, servicemen,
utility men, apprentices, parts department
employees, and custodians at the Respondent's
Salem, Virginia, plant, excluding all office cleri-
cal employees, sales personnel, professional
employees, guards, and supervisors as defined
in the Act.
2. The certification
On January 3, 1966, a majority of the employees of
Respondent in said unit, in a secret election
conducted under the supervision of the Regional
Director for Region 5, designated the Union as their
representative for the purposes of collective
bargaining with Respondent; and, on July 28, 1966,
the Regional Director for Region 5 certified the
Union as the collective-bargaining representative of
the employees in said unit and the Union continues
to be such representative.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on or about August 3, 1966, and
continuing to date, Respondent did refuse, and
continues to refuse, to bargain collectively with the
Union as the exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of the employees of the Respondent in the
appropriate unit described above, and that the
Union, at all times since July 28, 1966, has been and
now is, the exclusive bargaining representative of all
the employees in the aforesaid unit, within the
meaning of Section 9(a) of the Act. We further find
that Respondent has, since August 3, 1966, refused
to bargain collectively with the Union as the
exclusive bargaining representative of its employees
in the appropriate unit, and that, by such refusal, the
Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close, intimate,
and substantial relation 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 the Respondent has engaged 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 embody in a signed agreement any
understanding reached.
CONCLUSIONS OF LAW
1. Rish Equipment Company, Eastern Division of
Bluefield Supply Company, is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Operating Engineers,
Local Union No. 158, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All mechanics, service personnel, servicemen,
utility men, apprentices, parts department
employees, and custodians at the Respondent's
Salem, Virginia, plant, excluding all office clerical
employees, sales personnel, 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. On July 28, 1966, and at all times thereafter,
the above-named labor organization has been and
continues to be the certified and exclusive
representative of all employees in the aforesaid
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 3, 1966, and at
all times thereafter, to bargain collectively with the
above-named 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) and (1) 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 has
thereby 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
meaning of Section 2(6) and (7) of the Act.
RISH EQUIPMENT CO.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Rish Equipment Company, Eastern Division of
Bluefield Supply Company, Salem, Virginia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with International Union of Operating
Engineers, Local Union No. 158, AFL-CIO, as the
exclusive and duly certified bargaining
representative of its employees in the following
appropriate unit:
All mechanics, service personnel, servicemen,
utility men, apprentices, parts department
employees, and custodians at the Respondent's
Salem, Virginia, plant, excluding all office cleri-
cal employees, sales personnel, professional
employees, guards, 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 to them by 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 embody in
a signed agreement any understanding reached.
(b) Post at its Salem, Virginia, facilities, copies of
the attached notice marked "Appendix."3 Copies of
said notice, to be furnished by the Regional Director
for Region 5, 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 the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
785
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board , and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with International Union of Operating
Engineers , Local Union No. 158, AFL-CIO, as
the exclusive representative 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
wages, hours, and other terms and conditions of
employment , and embody in a signed
agreement any understanding reached. The
bargaining unit is:
All mechanics , service personnel,
servicemen , utility men, apprentices, parts
department employees , and custodians at
the Respondent 's Salem , Virginia , plant,
excluding all office clerical employees,
sales personnel , professional employees,
guards, and supervisors as defined in the
Act.
RISH EQUIPMENT
COMPANY , EASTERN
DIVISION OF BLUEFIELD
SUPPLY COMPANY
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Sixth Floor, 707 North Calvert Street,
Baltimore, Maryland 21202, Telephone 752-8460,
Extension 2100.