Visual Educom, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1972

198 N.L.R.B. 969 (N.L.R.B. 1972)

VISUAL EDUCOM 969
Visual Educom , Incorporated and Local 1392, Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO. Case 25-CA-4877
August 18, 1972
DECISION AND ORDER
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on April 6, 1972, by Local
1392, International Brotherhood of Electrical Work-
ers, AFL-CIO, herein called the Union, and duly
served on Visual Educom, Incorporated, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 25, issued a complaint on April
13, 1972, against Respondent, alleging that Respon-
dent 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
hearing before a Trial Examiner were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 9,
1972, following a Board-conducted election,' the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 2 and that, commenc-
ing on or about March 29, 1972, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On April 27, 1972, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. Subsequently, an
amendment to the complaint correcting the spelling
of one word issued, and Respondent filed an answer
to the amendment.
On May 8, 1972, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 17, 1972, 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. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
1 Case 25-RC-4750
2 Official notice is taken of the record in the representation proceeding,
Case 25-RC-4750, as the term "record" is defined in Secs 102 68 and
102 69(f) of the Board's Rules and Regulations , Series 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
198 NLRB No. 126
In its answer to the complaint and in its memoran-
dum on the General Counsel's Motion for Summary
Judgment, Respondent denies that the Union is the
exclusive bargaining representative of its employees
in the unit stipulated to be appropriate and that it is
obligated to bargain with the Union since the Board
did not afford it a hearing in the underlying
representation proceeding, Case 25-RC-4750. We
find no merit in Respondent's contention.
The record in Case 25-RC-4750 indicates that in
an election conducted pursuant to a Stipulation for
Certification Upon Consent Election, of 155 ballots
cast, 59 were for, and 49 against, the Union and 11
were challenged. The parties entered into a stipula-
tion for the resolution of challenged ballots, ap-
proved by the Regional Director, which resulted in a
final tally of ballots which disclosed that 57 ballots
were cast for, and 55 against, the Union. Respondent
filed objections to conduct affecting the results of the
election in which it alleged that the Union, during a
union organizational meeting, had made misrepre-
sentations.
After investigation, the Regional Director issued
his Report on Objections in which he recommended
that the objections be overruled and that the Union
be certified as exclusive bargaining agent in the
stipulated unit. The Board adopted the Regional
Director's recommendations and on March 9, 1972,
issued a Decision and Certification of Representa-
tive. Thus, all factual and legal issues raised in
Respondent's answer and in its memorandum on the
General Counsel's Motion for Summary Judgment
have been determined by admissions in the answer,
by a prior Board determination, or were ones that
could have been litigated in the prior Board
proceeding.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances, a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
All issues raised by the Respondent in this
Golden Age Beverage Co, 167 NLRB 151; Intertype Co v. Penello, 269
F Supp 573 (D.C Va., 1967); Follett Corp, 164 NLRB 378, enfd 397 F 2d
91 (C A 7, 1968); Sec 9(d) of the NLRA
3 See Pittsburgh Plate Glass Co v NLRB, 313 U.S 146, 162 (1941);
Rules and Regulations of the Board , Secs 102.67(1) nad 102 69(c).
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered 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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation with a place
of business in Michigan City, Indiana, where it is
engaged in the manufacture of educational commu-
nications products . During the past year Respondent
manufactured and shipped products valued in excess
of $50 ,000 directly to points outside the State of
Indiana . During the same period , Respondent
purchased goods and materials valued in excess of
$50,000 , which were shipped to its plant directly from
States other than the State of Indiana.
We find , on the basis of the foregoing, 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, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
2. The certification
On October 8, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 25, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 9, 1972, and the Union
continues 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 March 9, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about March 29, 1972, and continuing
at all times thereafter to date, the Respondent has
refused, 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 the Respondent has,
since March 29, 1972, 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, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1392, International Brotherhood of Electri-
cal Workers , AFL-CIO, is a labor organization
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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees
employed by the Respondent at its Michigan
City, Indiana , facility, but excluding all office
clerical employees , professional employees,
guards , and supervisors as defined in 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,
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 com-
merce.
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 (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.
VISUAL EDUCOM
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected 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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd . 328 F.2d 600 (C.A. 5),
cert . denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Visual Educom, Incorporated, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 1392, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Respondent at its Michigan City,
Indiana, facility, but excluding all office clerical
employees, 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. Since March 9, 1972, 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 9(a) of
the Act.
5. By refusing on or about March 29, 1972, 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 practices
within the meaning of Section 8(a)(5) 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, employ-
ees 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
971
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Visual Educom , Incorporated , 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 Local 1392, Interna-
tional Brotherhood of Electrical Workers , AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees
employed by the Respondent at its Michigan
City, Indiana , facility, but excluding all office
clerical employees, 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
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 Michigan City, Indiana , facility
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 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 Respon-
dent 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 this 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
972 DECISIONS OF 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Local
1392, International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive representa-
tive 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 representa-
tive 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 agree-
ment . The bargaining unit is:
All production and maintenance employees
employed by the Respondent at its Michigan
City, Indiana, facility, but excluding all
office clerical employees , professional em-
ployees , guards, and supervisors as defined
in the Act.
VISUAL EDUCOM,
INCORPORATED
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.