William L. Bonnell Co., Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1971

187 N.L.R.B. 869 (N.L.R.B. 1971)

WILLIAM L. BONNELL CO. 869
William L. Bonnell Co., Inc ., and International Union
of District 50, Allied & Technical Workers of the
United States and Canada . Case 10-CA-8293
January 15, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on April 17, 1970, and an
amendment thereto filed on May 28, 1970, by
International Union of District 50, Allied & Technical
Workers of the United States and Canada, herein
called the Union, and duly served on William L.
Bonnell Co., Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 10, issued
a complaint on August 21, 1970, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices 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 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 or about
March 24, 1970, following a Board election in Case
10-RC-7485 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; i
and that, commencing on or about March 26, 1970,
again on August 26, 1970, 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
August 28, 1970, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. The Respondent alleges
that the certification issued to the Union is invalid by
reason of the Board's errors in overruling its objec-
tions to the election conducted on September 12,
i Official notice is taken of the record in the representation proceeding,
Case 10-RC-7485 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 (CA 4,
1968), 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
2 By its answer the Respondent alleges that the election conducted on
September 12, 1968, was not determinative of the employees' free choice of
a bargaining agent and the certification issued to the Union on March 24,
1970, was unlawful, and it denies that the Union is the collective-
bargaining representative of a majority of the employees in the bargaining
unit These issues were raised and litigated by the Respondent in the prior
representation case, the record of which is before us, and for the reasons
1968, alleges that the allegations of the complaint are
without merit, and prays the Board to dismiss the
complaint in its entirety.
On September 23, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, alleging that the Respondent's
answer raises no factual issues warranting a hearing in
this proceeding, and therefore requests the Board to
grant the Motion for Summary Judgment. Subse-
quently, on October 2, 1970, 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
National Labor Relations Board has delegated its
powers in connection with this case 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 response, the Respondent contends that the
granting of the Motion for Summary Judgment would
attempt to force the Respondent to recognize and
bargain with an unlawfully certified bargaining
representative, and would, contrary to law, deprive
the Respondent and its employees of the rights
guaranteed them by the National Labor Relations
Act. By this assertion, and more specifically by its
denials, in whole or in part, of the allegations in
paragraphs 7 through 12 of the complaint,2 the
affirmative defenses alleged in its answer, and the
arguments propounded in its response to the General
Counsel's motion the Respondent is attempting to
relitigate the same issues which it raised and litigated
in the representation proceeding in Case
IO-RC-7485, and which, after a hearing before a Trial
Examiner, were determined by the Board in its
Decision and Certification of Representative3 issued
on March 24, 1970, and reaffirmed by its Order
recited herein , may not be relitigated in this unfair practice case The
Respondent also denies paragraphs 10 and II of the complaint which
allege that the Union has requested and the Respondent has refused to
bargain Attached to the General Counsel 's Motion for Summary
Judgment are two letters dated March 26 and August 26, 1970, which
purport to be requests made by the Union to the Respondent for
bargaining In its Response to the Notice to Show Cause, the Respondent
neither alludes to nor seeks to controvert the contents or the receipt of the
letters attached to the General Counsel's Motion , nor does it aver that it
responded, or intended to respond, to the Union's requests for bargaining.
Accordingly, we shall deem the allegations in paragraphs 10 and I I of the
complaint to be admitted The May Department Stores Company, 186
NLRB No 17, and Carl Simpson Buick, 161 NLRB 1389
3 Not reported in the bound volumes of the Board 's decisions.
187 NLRB No. 124
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denying the Respondent's Motion for Reconsidera-
tion issued on August 17, 1970.
It is established Board policy, in the absence of
newly discovered or previously unavailable evidence
or special circumstances, not to permit litigation in an
unfair labor practice case of issues which were or
could have been litigated in a prior representation
proceeding.4 It is clear that the Respondent had, and
exercised, the opportunity in the representation
proceeding in Case 10-RC-7485 to litigate the issues
raised in its answer to the complaint and its response
to the Motion for Summary Judgment. The Respon-
dent alleges no newly discovered or previously
unavailable evidence, and it alludes to no special
circumstances which would require the Board to
reexamine the decision made in the representation
proceeding. As all material issues have been previous-
ly decided by the Board, are admitted by the
Respondent's answer to the complaint, or stand
admitted by failure of the Respondent to controvert
the averments of the General Counsel's motion, we
find that there are no matters requiring an evidentiary
hearing before a Trial Examiner. Accordingly, the
General Counsel's Motion for Summary Judgment is
granted.
On the basis of the entire record, the Board makes
the following:
FINDINGS Or FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times
material herein, a Georgia corporation, with its
principal office and place of business located at
Newnan, Georgia, where it is engaged in the manufac-
ture and sale of aluminum extrusions. The Respon-
dent, during the past calendar year, which period is
representative of its operations at all times material
herein, sold and shipped finished products valued in
excess of $50,000 directly to customers located
outside the State of Georgia.
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
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees of the Respondent at its Newnan,
Georgia, operation , but EXCLUDING office
clerical employees , technical employees , buyers,
salesmen , professional employees , guards , watch-
men and supervisors as defined in the Act.
2. The certification
On September 12, 1968, 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 10 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 March 24, 1970, 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 24, 1970, again on
August 26, 1970, and at all times thereafter, the Union
has requested the Respondent to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-described
unit. Commencing on or about March 26, 1970, again
on August 26, 1970, 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 representative for collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
March 26, 1970, again on August 26, 1970, 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 engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
International Union of District 50, Allied &
Technical Workers of the United States and Canada
is a labor organization within the meaning of Section
2(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
4 Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules
and Regulations of the Board , Secs 102 67 (f) and 102 69 (c)
WILLIAM L. BONNELL CO.
III, above, occurring in connection with its operations
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 com-
merce 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate 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. William L. Bonnell Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of District 50, Allied &
Technical Workers of the United States and Canada
is a labor organization within the meaning of Section
2(5) of the Act.
3. "All employees of the Respondent at its
Newnan, Georgia, operation, but EXCLUDING
office clerical employees, technical employees, buy-
ers, salesmen, professional employees, guards, watch-
men 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 24, 1970, 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-
871
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about March 26, 1970, again
on August 26, 1970, and at all times thereafter, to
bargain collectively with the above-named labor
organization as the exclusive bargaining representa-
tive 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, 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
Relations Board hereby orders that Respondent,
William L. Bonnell Co., Inc., 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 International Union of District
50, Allied & Technical Workers of the United States
and Canada as the exclusive bargaining representa-
tive of its employees in the following appropriate unit:
All employees of the Respondent at its Newnan,
Georgia, operation, but EXCLUDING office
clerical employees, technical employees, buyers,
salesmen, professional employees, guards, watch-
men and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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 understand-
ing is reached, embody such understanding in a
signed agreement.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Newnan, Georgia, operations copies
of the attached notice marked "Appendix.5 Copies of
said notice, on forms provided by the Regional
Director for Region 10, 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 10, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
S 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 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."
APPENDIX
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 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 under-
standing in a signed agreement. The bargaining
unit is:
All employees of the Respondent at its
Newnan, Georgia, operation, but EXCLUD-
ING office clerical employees, technical
employees, buyers, salesmen , professional
employees, guards, watchmen and supervi-
sors as defined in the Act.
WILLIAM L. BONNELL
CO., INC.
(Employer)
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 Interna-
tional Union of District 50, Allied & Technical
Workers of the United States and Canada as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
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 compliance
with its provisions may be directed to the Board's
Office, Peachtree Building, Room 701, 730 Peachtree
Street, N.E., Atlanta, Georgia 30308, Telephone
404-526-5760.