Vinyl Craft Fence Co.

National Labor Relations Board - Board Decisions

Jan 4, 1979

239 N.L.R.B. 1201 (N.L.R.B. 1979)

VINYL CRAFT FENCE CO.
Andrew Craft, a sole proprietor, d/b/a Vinyl Craft
Fence Co. and United Steelworkers of America.
Case 25-CA-10105
January 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on August 15, 1978, by United
Steelworkers of America, herein called the Union,
and duly served on Andrew Craft, a sole proprietor,
d/b/a Vinyl Craft Fence Co., herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region
25, issued a complaint and notice of hearing on Au-
gust 25, 1978, against Respondent, alleging that Re-
spondent had engaged in, and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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 hear-
ing before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges, in substance, that on May 16, 1978,
following a Board election in Case 25-RC-6517 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about February 15, 1978, and more particu-
larly, on May 3, 1978, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
August 31, 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 8, 1978, counsel for the General
Counsel filed directly with the Board a motion to
strike portions of Respondent's answer and Motion
for Summary Judgment, submitting in effect, that no
issues remain between the parties in the case which
have not been previously decided by the Board, and
that Respondent, in its answer, is attempting to ligi-
f Official notice is taken of the record in the representation proceeding.
Case 25-RC-6517. 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 Electrosystenu, Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d
26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.SuDp. 573 (D.C.Va.. 1"67);
Folleul Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA, as amended.
tage issues which were or could have been raised in
the prior representation proceeding. He, therefore,
moved that Respondent's denial of complaint para-
graphs 5(b), 5(c), 5(d), and 5(e) be stricken, that the
Board enter a summary judgment that Respondent
has violated Section 8(a)(1) and (5) of the Act, order
the Respondent to bargain with the Union, and all
other relief, in the premises. Subsequently, on Sep-
tember 15, 1978, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's motions
should not be granted. Respondent thereafter filed
no response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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, Respondent, in ef-
fect, attacks the certification of the Union as the bar-
gaining representative of the employees in the appro-
priate unit by asserting that the Board improperly
denied Carl Rossini, William Hobbs, and Danny
Hobbs their rights to vote in the representation elec-
tion held in Case 25-RC-6517.
Our review of the record, including that of Case
25-RC-6517, shows that, pursuant to a Stipulation
for Certification Upon Consent Election, an election
was conducted on June 9, 1977, in the agreed-upon
appropriate unit. Challenged ballots were determina-
tive of the outcome of the election. On July 26, 1977,
the Regional Director for Region 25 issued a report
recommending that one of the challenged ballots be
overruled and that the remaining seven be sent to
hearing. The Board adopted the Regional Director's
report on August 17, 1977. After a hearing, the Hear-
ing Officer recommended that the challenges to the
ballots of three employees be overruled and the chal-
lenges to the ballots of the other four employees, in-
cluding Rossini and the two Hobbs, be sustained. On
April 19, 1978, the Board adopted these recommen-
dations and directed the Regional Director to take
certain further appropriate action based thereon.
Consequently, on May 4, 1978, the Regional Direc-
tor opened and counted the four ballots to which
challenges had been overruled and thereupon issued
a revised tally of ballots which showed that the
Union had won the election. On May 16, 1978, the
Acting Regional Director certified the Union as the
bargaining representative of the employees in the ap-
propriate unit.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It thus appears that Respondent's contentions that
Carl Rossini and William and Danny Hobbs were
denied the right to vote in the election held in the
underlying representation proceeding were consid-
ered by the Board and rejected in that proceeding
and, therefore, may not be reconsidered here.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding. 2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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 proper-
ly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.3
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent Andrew Craft, a sole proprietor,
d/b/a Vinyl Craft Fence Co., with principal offices
and place of business in Kokomo, Indiana, is en-
gaged in the manufacture, sale, and distribution of
vinyl-coated fencing and related products. In the
course and conduct of its business operations during
the past year, Respondent caused to be manufac-
tured, sold, and distrubuted at its facility products
valued in excess of $50,000 directly to customers in
the State of Indiana, each of which, in the same rep-
resentative time period, in the course and conduct of
their business operations at their Indiana estab-
lishments, received goods and materials valued in ex-
cess of $50,000 directly from sources located outside
the State of Indiana and/or each of which enterprises
manufactured, sold, and distrubuted at their re-
spective Indiana establishments products valued in
excess of $50,000 which were shipped directly to
States other than the State of Indiana.
2See Pittsbugh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Secs. 102.67(f) and 102.69(c).
3As we are granting the General Counsel's Motion for Summary .udg-
ment, we find it unnecessary to rule upon his motion to strike portions of
Respondent's answer.
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 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
11 THE LABOR ORGANIZATION INVOLVED
United Steelworkers of American is a labor orga-
nization 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
employed by the Respondent at its facility in
Kokomo, Indiana, including all extruder opera-
tors, all inspectors, and all truckdrivers, but ex-
cluding all office clerical employees, all profes-
sicnal employees, all guards and all supervisors
as defined in the Act.
2. The certification
On June 9, 1977, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 25, 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 May 16, 1978, and the Union contin-
ues 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 February 15, 1978, and
more particularly on June 21, 1978, and at all times
thereafter, the Union has requested Respondent to
bargain collectively with it as the exclusive collective-
bargaining representative of all the employees in the
above-described unit. Commencing on or about May
3, 1978, and continuing at all times thereafter to day,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit.
1202
VINYL CRAFT FENCE CO.
Accordingly, we find that Respondent has, since
May 3, 1978, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged 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 activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, 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.
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 (I) 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 appro-
priate unit will be accorded the services of their se-
lected 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
(5th Cir. 1964), cert. denied 379 U.S. 817; Burnett
Construction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Respondent, Andrew Craft, a sole proprietor,
d/b/a Vinyl Craft Fence Co., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, United Steelworkers of America, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its facility in Kokomo, In-
diana, including all extruder operators, all inspectors,
and all truckdrivers, but excluding all office clerical
employees, all professional employees, all guards,
and all supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since May 16, 1978, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about May 3, 1978, and at all
times thereafter, to bargain collectively wiht the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, 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 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 Re-
lations Board hereby orders that Respondent, An-
drew Craft, a sole proprietor, d/b/a Vinyl Craft
Fence Co., Kokomo, Indiana, its 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 con-
ditions of employment with United Steelworkers of
America as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees
employed by the Respondent at its facility in
Kokomo, Indiana, including all extruder opera-
tors, all inspectors, and all truckdrivers, but ex-
cluding all office clerical employees, all profes-
sional employees, all guards, and all supervisors
as defined in the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 its Kokomo, Indiana, facilities copies
of the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional
Director for Region 25, 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 no-
tices to employees are customarily posted. Reason-
able 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 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced by ajudgment 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 Judg-
ment 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
I WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with
United Steelworkers of America as the exclusive
representative of the employees in the bargain-
ing unit described below.
I WILL NOT in any like or related manner inter-
fere with, restrain, or coerce my employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
I 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 understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees
employed by the Respondent at its facility in
Kokomo, Indiana, including all extruder op-
erators, all inspectors, and all truckdrivers,
but excluding all office clerical employees, all
professional employees, all guards, and all
supervisors as defined in the Act.
ANDREW CRAFT, A SOLE PROPRIETOR. d/b/a
VINYL CRAFT FENCE CO.
1204