Sub-Zero Freezer Co.

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 47 (N.L.R.B. 1984)

SUB-ZERO FREEZER CO.
Sub-Zero Freezer Company, Inc. and Sheet Metal
Workers' International Association, AFL-CIO,
Local No. 485. Case 28-CA-7286
29 June 1984
DECISION AND ORDER
On 24 January 19831 the Regional Director for
Region 28 of the National Labor Relations Board
issued a complaint and notice of hearing in the
above-entitled proceeding, alleging that the Re-
spondent has violated Section 8(a)(1) and (5) and
Section 2(6) and (7) of the National Labor Rela-
tions Act.
The complaint alleges in substance that on 16
December 1982, following a Board election in Case
28-RC-4102, the Union was duly certified as the
exclusive collective-bargaining representative of
the Respondent's employees in the unit found ap-
propriate; and that, commencing about 11 January
1983, and at all times thereafter, the Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. (Official
notice is taken of the "record" in the representation
proceeding as defined in the Board's Rules and
Regulations, Sees. 102.68 and 102.69(g), amended
Sept. 9, 1981, 46 Fed. Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) On 1 February 1983
the Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On 18 February 1983 the General Counsel filed
directly with the Board a Motion for Summary
Judgment. Subsequently, on 25 February 1983, 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. The Respondent thereafter
filed a response to the Notice to Show Cause.
In its answer to the complaint and its response to
the Notice to Show Cause, the Respondent repeats
the argument, first raised in the representation pro-
ceeding, that conduct occurred during the preelec-
tion period which interfered with the election. The
Respondent maintains that the conduct included,
inter alia, threats to employees and property
damage, which resulted in an atmosphere of fear
and reprisal such that a free and fair election could
not be conducted. The Respondent thus contends
that it, in good faith, doubts that the Union repre-
sents a majority of the Respondent's employees in
the appropriate unit. The General Counsel argues
I On 25 January 1983 the Regional Director for Region 28 issued an
Erratum correcting the case number listed in the complaint.
271 NLRB No. 7
that all material issues have been previously pre-
sented to, and decided by, the Board, and that
there are no litigable issues of fact requiring a hear-
ing.
Our review of the record herein, including the
record in Case 28-RC-4102, discloses that, pursu-
ant to the Stipulated Election approved by the Re-
gional Director 27 April 1982, an election was con-
ducted 4 June 1982. The tally of ballots shows 36
votes cast for, and 34 against, the Petitioner; there
were no challenged ballots. On 11 June 1982 the
Respondent timely filed objections to conduct af-
fecting the results of the election. On 16 June 1982
the Regional Director issued an order directing
hearing and notice of hearing. On 16 July 1982,
after a full hearing, the hearing officer issued his
"Report and Recommendations on Objections to
Conduct Affecting the Results of the Election,"
recommending the overruling of the Respondent's
objections in their entirety. On 26 July 1982 the
Respondent filed with the Board its exceptions to
the hearing officer's "Report and Recommenda-
tions on Objections to Conduct Affecting the Re-
sults of the Election." On 16 December 1982 the
Board, with former Chairman Van de Water and
Member Hunter dissenting, issued its Decision and
Certification of Representative, reported at 265
NLRB 1521, in which it adopted the hearing offi-
cer's findings and recommendations in Case 28-
RC-4102, and certified the Union as the exclusive
collective-bargaining representative of the unit
found appropriate.
On further consideration, for the reasons fully set
forth in the dissenting opinion of our original deci-
sion, reported at 265 NLRB 1521, we agree with
the Respondent that conduct occurred which re-
sulted in an atmosphere of fear and reprisal such
that a free and fair election could not be conduct-
ed. Having reached this conclusion, we cannot let
stand a certification of representative premised on
an election that was conducted in such an atmos-
phere. While we share our dissenting colleague's
concern with stability in law and finality in litiga-
tion, at the same time we believe that the just reso-
lution of questions presented to the Board is our
primary duty. Therefore, while reconsideration of
issues in technical refusal-to-bargain cases may, in
some instances, cause delays or involve changes in
Board law, we are not willing to grant a Motion
for Summary Judgment that would result in an
order requiring an employer to bargain with a
union that has not attained the status of majority
representative from a free and fair election.
Accordingly, we shall vacate our Decision and
Certification of Representative in Case 28-RC-
4102 (265 NLRB 1521), dismiss the complaint in
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the instant proceeding, revoke the certification
issued in Case 28-RC-4102, and remand Case 28-
RC-4102 to the Regional Director for Region 28
for appropriate action consistent with the decision
herein, including the direction of a new election if
desired by the Petitioner.
ORDER
It is hereby ordered that the Decision and Certi-
fication of Representative in Case 28-RC-4102
(265 NLRB 1521) is vacated.
IT IS FURTHER ORDERED that the certification
issued in Case 28-RC-4102 is revoked and that
Case 28-RC-4102 is remanded to the Regional Di-
rector for Region 28 for appropriate action consist-
ent with the decision herein, including the direc-
tion of a new election if desired by the Petitioner.
MEMBER ZIMMERMAN, dissenting.
I would grant the General Counsel's Motion for
Summary Judgment in this technical test of certifi-
cation. In 1982, the Employer's objections alleging
conduct resulting in an atmosphere of fear and re-
prisal were the subject of a full hearing before a
hearing officer of the Board who issued a report
recommending the overruling of all objections. In
December 1982 the full Board considered the Re-
spondent's exceptions to the hearing officer's report
and issued a Decision and Order,1 adopting the
hearing officer's findings and certifying the Union.
Former Chairman Van de Water and Member
Hunter dissented.
The parties, therefore, have received the fullest
opportunity to litigate the issues concerning the
representative status of the Union and have in fact
done so. My colleagues in the majority do not dis-
pute this. Nor do they dispute that the Respondent
is attempting to relitigate these matters in a refusal-
to-bargain case-a practice which is normally pro-
hibited under the Pittsburgh Glass Co. rule.2 They
have simply decided to reconsider the underlying
representation case and adopt the position of the
dissent in that case.
Although I do not doubt my colleagues' author-
ity to do this, I do question the wisdom of exercis-
ing that authority in this case. The sole reason that
Reported at 265 NLRB 1521 (1982).
2 Pittsburgh Glass Ca v. NLRB, 313 U.S. 146, 162 (1941).
relitigation is being permitted here is a change in
the composition of the Board from the time the
representation case was litigated to the time the
test of certification occurred. Certainly the Act
allows for shifts in the law when the composition
of the Board changes, and undoubtedly Congress
intended for the Board to respond to changing
times and conditions. It is, therefore, inevitable that
a certain degree of instability in Board law will
arise as new Members enter into the decision-
making process. At the same time, however, such
changes undermine the goals stated by a long suc-
cession of Board Members of maximizing the vol-
untary settlement of cases and minimizing the liti-
gation of labor disputes. Those goals call for giving
due regard for both stability in the law and finality
in litigation. Avoiding unnecessary instability and
uncertainty is critical to the efficient administration
of the Act.
Early in my tenure at the Board I took the posi-
tion that factors favoring stability outweighed
those favoring reconsideration of the issues in tech-
nical refusal-to-bargain cases. In Bravos Oldsmobile,
254 NLRB 1056 (1981), I found that selective ap-
plication of the rule against relitigation of represen-
tation issues could cause far greater damage than
that which might result if the representation matter
was improperly decided. I decided that, in all
unfair labor practice cases testing certification, I
would not allow relitigation of the representation
matters even if I had dissented on the underlying
representation case or would have decided the case
differently had I participated in it.
A great deal can be gained by applying this form
of res judicata to the Board's processes. When
changes in the Board occur, the parties could at
least be certain that decisions already made at the
representation level are final. The wisdom of this
approach is particularly apparent here where there
was a full hearing on the representation issue and a
dissenting opinion which apparently sets forth what
is now the view of the current Board. The review-
ing court will have both the record in the hearing
and the dissenting opinion before it for full consid-
eration. In these circumstances, the Board would
lose very little in applying the rule of res judicata
and would contribute greatly to the orderly admin-
istration of the Act during a period of change.
48