The Gunton Co.

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1875 (N.L.R.B. 1977)

THE GUNTON COMPANY 1875
The Gunton Company and Excavating , Building
Material, Construction Drivers, Manufacturing,
Processing, Assembling and Installer Employees,
Local Union No. 436, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case 8-
CA-10037
January 31, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND WALTHER
On October 28, 1976, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Gunton
Company, Warrensville Heights, Ohio, its officers,
agents , successors , and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on August 30, 1976, at Cleveland,
Ohio, pursuant to a charge filed by Excavating, Building
Material, Construction Drivers, Manufacturing, Process-
ing, Assembling and Installer Employees, Local Union No.
436, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter referred to as the Umon, on April 19,
1976, which was served on Respondent by registered mail
on April 26, 1976; on an amended charge filed by the
Union on May 18, 1976, which was served on Respondent
simultaneously with the complaint, and on a complaint and
notice of hearing issued by the Regional Director for
Region 8 on May 27, 1976, which was also duly served on
Respondent.
The complaint alleges in substance that, on September 8,
1975, following a Board-conducted election in Case 8-RC-
9502, the Union was certified by the Regional Director as
the exclusive bargaining representative of Respondent's
employees in the unit found appropriate, that the Respon-
dent's request for review of the Regional Director's certifi-
cation was denied by the Board on or about February 23,
1976, and that commencing on or about March 15, 1976,
and at all times thereafter, Respondent has refused, and
continues to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although the
Union has requested it to do so.
On June 3, Respondent filed its answer to the complaint
and, on the record at the hearing, it amended this answer.
In the answer, as amended, the Respondent admits the
essential factual allegations of the complaint, including
Respondent's refusal to bargain. However, Respondent
denies that it has committed any unfair labor practices
primarily on the basis of its further denial that the Umon
has been duly designated and certified as the exclusive
bargaining representative of the employees in the appropri-
ate unit.
After the General Counsel introduced the formal papers
at the hearing and after the parties jointly introduced the
union's certification and the related documents in Case 8-
RC-9502, the General Counsel moved for summary judg-
ment. This motion was opposed by Respondent. I held this
motion in abeyance and permitted Respondent the oppor-
tunity to present evidence which might warrant denial of
the motion. Respondent thereupon presented certain offers
of proof and a stipulation of fact. Since I found nothing in
these offers of proof or in the stipulation which would
warrant denial of the General Counsel's motion, I granted
that motion on the record at the hearing. However, I
advised the parties that I would issue a decision in the usual
format to provide Respondent the findings and conclusions
from which it could appeal should it so desire. In the
decision, which follows, I affirm my ruling on the General
Counsel's motion.
At the hearing the General Counsel and Respondent
were represented by counsel. Within the limitations im-
posed upon me in this type of proceeding, about which
more will be said hereinafter, each party was given full
opportunity to examine and cross-examine witnesses, to
introduce evidence, and to file briefs. The parties presented
oral argument in respect to the General Counsel's motion.
Subsequent to the hearing, the General Counsel and
Respondent submitted briefs which have been considered.
Upon the entire record 1 in this case including the briefs, I
make the following:
Affirmed Ruling on Motion for Summary
Judgment
As reflected above, the Respondent's answer to the
complaint admits the essential factual allegations of the
complaint, including its refusal to bargain with the Union,
1 Corrections to the transcript have been approved and noted according-
ly
227 NLRB No. 274
1876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which, as I have noted was certified, according to the jointly
introduced documents from Case 8-RC-9502, as the
exclusive bargaining representative of the employees de-
scribed in the complaint. In its answer to the complaint as
well as in its opposition to the General Counsel's Motion
for Summary Judgment and in its brief, the Respondent
continues to contest the validity of the Union's certifica-
tion, relying on (but not repeating) the contentions it raised
in the representation case, particularly its objections to the
election which were overruled by the Regional Director of
whose decision the Board denied review. It further con-
tends, based on one of its rejected offers of proof, that there
has been a turnover and increase of employees in the unit to
such a degree that almost 70 percent of the employees in the
unit at the time of the unfair labor practice hearing were not
on its payroll at the time of the election, hence could not
have voted herein. And it contends, on the basis of its other
rejected offer of proof, that there was a change in employee
sentiment towards the Union after the election when the
employees were denied a pay raise at that time. According
to the latter offer, as the employees purportedly understood
the situation after the election, the reason that the raise was
not immediately forthcoming was because the raise could
not be given while the determination of the election results
was delayed by postelection litigation of Respondent's
election objections. In these circumstances, according to
the thrust of this offer, the employee sentiment was that
their involvement with the Union had cost them a pay raise
they would have otherwise received.
I will treat with each of these matters seriatim. To the
extent that Respondent relies on its contentions in the
underlying election proceeding, Case 8-RC-9502, and
particularly its election objections, it is, of course, merely
repeating or attempting to relitigate the same issues it raised
in that case.
It is well settled that, in the absence of newly discovered
or previously unavailable evidence or special circumstanc-
es, a respondent in a proceeding alleging a violation of
Section 8(aX5) is not entitled to relitigate issues which were
or could have been litigated in a prior representation
proceeding.2
Since all issues raised by the Respondent in this proceed-
ing (with the exception of its offers of proof which I will
discuss infra) were or could have been litigated in the prior
representation proceeding, I did not permit it to relitigate
any such matters in the present proceeding other than to
provide it an opportunity to present any newly discovered
or previously unavailable evidence or special circumstances
which would require the Board to reexamine the decision
made in the representation proceeding. It offered no such
evidence nor did it rely on any special circumstances which
would warrant reconsideration of the election proceeding.3
2 See Pittsburgh Plate Glass Company v N LR B., 313 US 146, 162
(1941), Board 's Rules and Regulations and Statements of Procedure, Series
8, as amended, Secs 102 67 (t) and 102.69(c).
3 It merely offered into evidence the transcripts of the hearing on its
election objections which hearing was held on November 19 and 20, 1974.
4 Georgetown Dress Corporation, 217 NLRB 41 (1975).
S Ray Brooks v NLRB , 348 U S 96 (1954)
a Retail Store Employees' Union, Local No 692, Retail Clerks International
Association, AFL-CIO (Irvin, Inc), 134 NLRB 686, 689 (1961)
This brings us to Respondent's offers of proof which deal
with matters occurring in subsequent to the election. In
respect to Respondent's offer of proof concerning the
change in employee sentiment towards the Union following
the election, this alteration of attitude - assuming the
correctness of the offer of proof - traces directly from the
consumption of time necessary to provide Respondent due
process for the resolution of objections raised in respect to
the election proceeding. To entertain this defense would
produce the anomalous result of permitting the Respondent
- which failed to overturn the election results on the
grounds advanced in its objections and arguments - now
to defeat that election on the basis of the lapse of time
necessary for the Board to consider and dispose of those
very objections and arguments .4 I, accordingly, reaffirm my
rejection to this offer of proof.
As to the other offer of proof dealing with the alleged
employee turnover and increase of employee complement
after the election, this, even if true, is likewise irrelevant to
our deliberations here. Respondent's obligation to bargain
with the Union extends, as a matter of law, for 1 year from
the date of the Union's certification 5 which became
effective herein on September 8, 1975, the date the Regional
Director issued his Second Supplemental Decision and
Certification of Representative.6 Employee turnover does
not constitute an "unusual circumstance" sufficient to
relieve Respondent of that bargaining obligation.7 Further,
inasmuch as this obligation derives from the certification, it
matters not - contrary to Respondent's additional cont-
ention - that Respondent has committed no other unfair
labor practices.
In the light of all the foregoing, I conclude that Respon-
dent was obligated to bargain with the Union for a year
after it obtained its certification, and I affirm my ruling at
the hearing in which I granted the General Counsel's
Motion for Summary Judgment.8
On the basis of the entire record I also make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent is now, and has been at all times
material herein, a corporation duly organized and existing
by virtue of the laws of the State of Ohio. Its principal office
and place of business is located in Warrensville Heights,
Ohio, where it is primarily engaged in the nonretail sale and
installation of window units. Annually, in the course and
conduct of its business, Respondent receives goods valued
in excess of $50,000 at its Warrensville Heights, Ohio,
facility directly from points located outside the State of
Ohio.
7 Ray Brooks v. N L R B., supra.
8 Ray Brooks v. N LRB., supra Those cases relied upon by Respondent
for a contrary result are inapposite on their facts . Thus, in Clark's Gamble
Corporation v NLRB, 422 F.2d 845 (C.A. 6, 1970), the union's majority
was based on an authorization card showing , and not, as here, upon a Board
certification. In Royal Typewriter Co v. NLRB., 533 F 2d 1030 (C A. 8,
1976), the union had already enjoyed collective bargaining and a contract for
more than I year under its certification at the time its majority status was
called into question by the employer.
THE GUNTON COMPANY 1877
The complaint alleges, the answer admits, and I find that
Respondent is now, 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
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respresentation Proceeding, Case
8-RC-9502
1. Its history
On May 16, 1974, the Union filed its petition for a Board-
conducted election in a unit of the Respondent's truckdriv-
ers and warehousemen.
After a hearing on this petition, the Regional Director on
June 26, 1974, issued a Decision and Direction of Election
in which he found appropriate the foregoing bargaining
unit including certain part-time employees and a night dock
loader.
On or about July 9, 1974, the Respondent filed with the
Board in Washington, D.C., a request for review of the
Regional Director's decision, contending that the night
dock loader and the five part-time employees should have
been excluded from the unit.
This request for review was denied by the Board in July
1974.
On July 25, 1974, an election was held in the instant unit
under the supervision of the Regional Director and the
results showed that out of approximately 19 eligible voters
12 voted in favor of the Union, 6 against, and 1 ballot was
void.
On July 30, 1974, the Employer timely filed four
objections to conduct affecting the results of the election.
These objections were, in substance, that:
1. The Union illegally promised employees on and
before June 28, 1974, that, if they signed up before the
election, they would not have to pay initiation fees.
2. The Union illegally promised employees on and
before July 5, 1974, that if they signed up before the
election they would not have to pay the regular
initiation fees and would be given a lower reduced rate
but that employees who joined after the election would
pay the regular initiation fees.
3. The Union disseminated a fictitious story that an
agent of the Board had addressed a union meeting
thereby giving the impression that the Union was aided
or assisted by the Board.
4. By the foregoing actions the Union interfered
with employees' free choice in the election.
On August 30, 1974, the Acting Regional Director, after
investigation , issued a Supplemental Decision overruling all
of Respondent's objections and certified the Union as the
9 The Board's denial of review, of course, constituted an affirmance of the
Regional Director's action. Sec 102.67(f) of the Board's Rules and Regula-
tions and Statements of Procedure, Series 8, as amended.
exclusive bargaining representative of the employees in the
unit.
On September 9, 1974, the Respondent filed with the
Board in Washington, D.C. a request for review of the
Regional Director's Supplemental Decision and a motion
for hearing on its objections.
On or about October 21, 1974, the Board denied the
request for review in part and granted it in part, remanding
it to the Regional Director for hearing on Respondent's
Objections 1 and 2.
On November 19 and 20, 1974, a hearing was held on
these two objections before a duly designated Hearing
Officer of the Board.
On December 23, 1974, the Hearing Officer issued his
Report on Objections in which he recommended that
Objections 1 and 2 be overruled and the Union certified.
On January 20, 1975, Respondent filed exceptions to this
report along with a supporting brief with the Regional
Director.
On April 17, 1975, the Regional Director remanded the
case to the Hearing Officer for the making of credibility
findings.
The Regional Director amended his remand order on
April 28, 1975.
On May 6, 1975, the Hearing Officer issued a Supplemen-
tal Report on Objections in which he again recommended
that Objections 1 and 2 be overruled and that the Union be
certified.
On June 16, 1975, Respondent filed exceptions and a
supporting brief with the Regional Director in respect to
this supplemental report.
On September 8, 1975, the Regional Director issued his
Second Supplemental Decision in which he certified the
Union as the collective-bargaining representative of the
employees in the unit.
On September 15, 1975, Respondent filed with the Board
in Washington, D.C. a request for review of the Regional
Director's Second Supplemental Decision followed by a
brief on or about October 2, 1975.
On February 23, 1976, the Board issued a telegraphic
order in which it denied the Respondent's request for
review on the ground that it raised no substantial issues
warranting review.9
2. The unit
The following employees constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All truckdrivers, warehousemen, and porters, includ-
ing regular part-time employees, employed by the
Employer at its 19801 Miles Avenue and 18000 Miles
Avenue, Cleveland, Ohio, facilities but excluding all
carpenters, woodworkers, office clerical employees, and
professional employees, guards and supervisors, as
defined in the Act.io
10 The Regional Director so found in the representation case and
Respondent likewise so admitted in its answer to the complaint herein
1878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A summary of Case 8-RC-9502; the
certification
On July 25, 1974, a majority of the employees in said unit,
in a secret ballot election conducted under the supervision
of the Regional Director for Region 8, designated the
Union as their representative for the purpose of collective
bargaining with the Respondent . The Union was certified
as the collective-bargaining representative of the employees
in said unit on September 8, 1975, and the Union continues
to be such exclusive representative within the meaning of
Section 9(a) of the Act.
B. Respondent's Refusal To Bargain
Commencing on or about March 15, 1975, and at all
times thereafter, Respondent did refuse, and continues to
refuse, to recognize and bargain collectively with the Union
as the exclusive bargaining representative of all the employ-
ees in the unit described above in that , commencing on or
about March 15, 1976, and continuing to date, Respondent
has refused, and continues to refuse , to meet , negotiate, and
discuss with the Union matters with respect to rates of pay,
wages , hours of employment, and other terms and condi-
tions of employment.11 Respondent has taken this stance
notwithstanding that the Union was then and still is the
exclusive bargaining representative within the meaning of
Section 9(a) of the Act of the employees in the above-
described appropriate bargaining unit.
Accordingly, I find that by such refusal to bargain with
the Union on and since March 15, 1976, Respondent has
violated, and is violating, Section 8(axl) and (5) 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 de-
scribed 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.
ing agent for the period provided by law, I 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.12
CONCLUSIONS OF LAW
1. Respondent is now, 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.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All truckdnvers, warehousemen, and porters, includ-
ing regular part-time employees, employed by the
Employer at its 19801 Miles Avenue and 18000 Miles
Avenue, Cleveland, Ohio, facilities but excluding all
carpenters, woodworkers, office clerical employees, and
professional employees, guards and supervisors, as
defined in the Act.
4. On and since September 8, 1975, the above-named
labor organization has been and is now the certified and
exclusive representative of all 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 March 15, 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
aforesaid appropriate unit, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX5) and
(1) of the Act, I shall recommend a remedial order requiring
it to cease and desist therefrom, and, upon request, to
bargain collectively with the Union as the exclusive
representative of all employees in the unit found appropri-
ate here, and, if an understanding is reached, embody such
understanding in a signed agreement . I shall also recom-
mend that Respondent be ordered to post an appropriate
notice.
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected bargain-
11 Respondent so admitted in its amended answer to the complaint.
12 Prestohte Wire Division, Eltra Corporation, 225 NLRB 1 (1976), and
cases cited therein.
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
ORDER 13
Respondent, The Gunton Company, Warrensville
Heights, Ohio, 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 Excavating, Building Material, Construc-
tion Drivers, Manufacturing, Processing, Assembling and
Installer Employees, Local Union No. 436, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
THE GUNTON COMPANY
bargaining representative of its employees in the following
appropriate unit:
All truckdrivers, warehousemen, and porters, includ-
ing regular part-time employees, employed by the
Employer at its 19801 Miles Avenue and 18000 Miles
Avenue, Cleveland, Ohio, facilities but excluding all
carpenters, woodworkers, office clerical employees and
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 them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive bargaining
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 understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its Warrensville Heights, Ohio, facilities copies
of the attached notice marked "Appendix." 14 Copies of
said notice, on forms provided by the Regional Director for
Region 8 , after being duly signed by Respondent's repre-
sentative, 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. 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 8, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
14 In the event that the Board's 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
1879
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 concern-
mg rates of pay, wages, hours, and other terms and
conditions of employment with Excavating, Building
Material, Construction Drivers, Manufacturing, Pro-
cessing, Assembling and Installer Employees, Local
Union No. 436, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, 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
rights guaranteed 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 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. The bargaining unit is:
All truckdrivers, warehousemen, and porters,
including regular part-time employees, employed
by us at our 19801 Miles Avenue and 18000 Miles
Avenue, Cleveland, Ohio, facilities but excluding
all carpenters, woodworkers, office clerical em-
ployees, and professional employees, guards and
supervisors, as defined in the Act.
THE GUNTON COMPANY