Wesco Electrical Co.

National Labor Relations Board - Board Decisions

Apr 6, 1978

235 N.L.R.B. 741 (N.L.R.B. 1978)

WESCO ELECTRICAL COMPANY
J. K. Electronics, Inc. d/b/a Wesco Electrical Com-
pany and United Electrical, Radio and Machine
Workers of America. Case 1-CA-13723
April 6, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on October 11, 1977, by
United Electrical, Radio and Machine Workers of
America, herein called the Union, and duly served
on J. K. Electronics, Inc., d/b/a Wesco Electrical
Company, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 1, issued a com-
plaint and notice of hearing on December 8, 1977,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning 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 an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December 9,
1976, following a Board election in Case I-RC-
14745, the Union was duly designated as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate; l and
that, commencing on or about October 4, 1977, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On December 16, 1977,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On January 6, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. Subse-
quently, on January 18, 1978, 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
National Labor Relations Act, as amended, the
I Official notice is taken of the record in the representation proceeding,
Case 1-RC-14745, as the term "record" is defined in Secs. 102.68 and
102.
6 9
(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.., 1967):
235 NLRB No. 92
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
In its answer to the complaint, Respondent admits
the request and refusal to bargain. In its response to
the Notice To Show Cause, however, Respondent
contends that the General Counsel's Motion for
Summary Judgment should be denied inasmuch as
the Union has never been selected as bargaining
agent by a majority of the employees in an appropri-
ate unit.
Review of the record herein, including the record
in Case l-RC-14745, reveals that the Union and
Respondent entered into a Stipulation for Certifica-
tion Upon Consent Election which was approved by
the Regional Director for Region I on October 26,
1976, in which the parties agreed to include, inter
alia, group leaders in the unit. Pursuant to the
stipulation, an election was held on December 9,
1976, in the unit stipulated to be appropriate. The
tally of ballots showed that, of approximately 117
eligible voters, 56 cast ballots for, and 47 against, the
Union. There were 12 challenged ballots, a number
sufficient to affect the results of the election. Thereaf-
ter, the Union filed timely objections to conduct
affecting the results of the election. On January 25,
1977, the Regional Director issued his Report on
Objections and Challenged Ballots in which he found
that the objections and challenged ballots raised
issues which could best be resolved through a hearing
and ordered that Case I-RC-14745 be consolidated
with the related Case I-CA-12404 for hearing before
an Administrative Law Judge. On May 31, 1977, the
Administrative Law Judge issued his Decision in
which he found, inter alia, that the 11 group leaders
whose ballots were challenged in the election were
not supervisors within the meaning of the Act and
therefore recommended that the challenges to their
ballots be overruled.2 On September 28, 1977, the
Board issued its Decision, Order, and Certification of
Representative, 3 wherein it found, inter alia, that the
group leaders were supervisors within the meaning of
the Act, sustained the challenges to their ballots, and
found appropriate a unit which did not include the
group leaders. On October 18, 1977, Respondent
filed a motion for reconsideration of these portions
of the Board's Decision, which was denied by the
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 The Administrative Law Judge also granted the Union's motion to
withdraw its objections.
3 232 NLRB 479.
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board on November 30, 1977. In its response to the
Notice To Show Cause, Respondent relies on the
arguments set forth in its brief previously filed with
the Board in the prior proceeding. It thus appears
that Respondent is attempting in this proceeding to
relitigate issues fully litigated and finally determined
in the representation 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. 4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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 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, a Massachusetts corporation with its
principal place of business located in Greenfield,
Massachusetts, is engaged in the manufacture, sale,
and distribution of electrical components. Respon-
dent, in the course and conduct of its business,
annually receives at its principal location directly
from points outside the Commonwealth of Massa-
chusetts goods valued in excess of $50,000, and ships
from its principal location to points directly outside
the Commonwealth of Massachusetts goods valued
in excess of $50,000.
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.
II. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of
America is a labor organization within the meaning
of Section 2(5) of the Act.
4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
111. 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, regu-
lar part-time employees, production control cleri-
cal employees, and shipping and receiving em-
ployees at J. K. Electronics, Inc., d/b/a Wesco
Electrical Company, 201 Munson Street, Green-
field, Massachusetts, excluding office clerical
employees, sales clericals, inside and outside
salesmen, quality control technicians, profession-
al employees, guards and supervisors as defined
in the Act.
2. The certification
On December 9, 1976, 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 1, 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 September 28, 1977, 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 September 30, 1977, 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. Com-
mencing on or about October 4, 1977, and continu-
ing at all times thereafter to date, 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 Respondent has, since
October 4, 1977, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
742
WESCO ELECTIRICAL COMPANY
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 1, above, have a ciose,
intimate, and substantial relationship to trade, traff-
ic, 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 (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.
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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. J. K. Electronics, Inc. d/b/a Wesco Electrical
Company, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Electrical, Radio and Machine Work-
ers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
regular part-time employees, production control cler-
ical employees, and shipping and receiving employ-
ees at J. K. Electronics, Inc. d/b/a Wesco Electrical
Company, 201 Munson Street, Greenfield, Massa-
chusetts, excluding office clerical employees, sales
clericals, inside and outside salesmen, quality control
technicians, 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 September 28, 1977, 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 October 4, 1977, 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
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
J. K. Electronics, Inc. d/b/a Wesco Electrical Com-
pany, Greenfield, Massachusetts, 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 United Electrical,
Radio and Machine Workers of America as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees, regu-
lar part-time employees, production control cleri-
cal employees, and shipping and receiving em-
ployees at J. K. Electronics, Inc., d/b/a Wesco
Electrical Company, 201 Munson Street, Green-
field, Massachusetts, excluding office clerical
employees, sales clericals, inside and outside
salesmen, quality control technicians, profession-
al 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:
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 facility at 201 Munson Street,
Greenfield, Massachusetts, copies of the attached
notice marked "Appendix." 5 Copies of said notice,
on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's
representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable 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 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that 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 read "Posted Pursuant 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with United
Electrical, Radio and Machine Workers of Amer-
ica as the exclusive representative of the employ-
ees 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,
regular part-time employees, production
control clerical employees, and shipping and
receiving employees at J. K. Electronics,
Inc., d/b/a Wesco Electrical Company, 201
Munson Street, Greenfield, Massachusetts,
excluding office clerical employees, sales
clericals, inside and outside salesmen, quali-
ty control technicians, professional employ-
ees, guards and supervisors as defined in the
Act.
J. K. ELECTRONICS, INC.
D/B/A WESCO
ELECTRICAL COMPANY
744