Oxequip Health Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1976

227 N.L.R.B. 677 (N.L.R.B. 1976)

OXEQUIP HEALTH INDUSTRIES, INC. 677
Oxequip Health Industries, Inc. and Local 73, General
Service Employees Union, S.E.I.U., AFL-CIO.
Case 13-CA-15589
December 30, 1976
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND
WALTHER
Upon a charge filed on June 30,1976, by Local 73,
General Service Employees Union, S.E.I.U., AFL-
CIO, herein called the Union, and duly served on
Oxequip Health Industries, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 13, issued a complaint and notice
of hearing on July 30, 1976, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative 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 June 9, 1976,
following a Board election in Case 13-RC-13981, 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 June 16, 1976, 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 9, 197.6, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 17, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and on September 27, 1976, the
Respondent "filed an opposition to said motion.
Subsequently, on September 30, 1976, 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 entitled "Motion in Opposi-
tion to and Showing Cause why General Counsel's
1 Official notice is taken of the record in the representation proceeding,
Case 13-RC-13981, 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 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);
227 NLRB No. 110
Motion for Summary Judgment should not be
Granted."
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.
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 and response to the
Notice To Show Cause, the Respondent attacks the
validity of the Union's certification because the
Union's alleged objectionable conduct precluded the
holding of a fair election. Counsel for the General
Counsel contends that the Respondent is attempting
to relitigate issues which were raised and determined
in the underlying representation case and this it may
not do. We agree with the General Counsel.
Review of the record herein, including that in Case
13-RC-13981, shows that, in_the election conducted
pursuant to a Stipulation for Certification Upon
Consent Election,2 there were approximately 45
eligible voters of whom 23 voted for the Union, none
voted for the Intervenor, and 20 voted against the
participating labor organizations. There were no
challenged ballots. The Respondent filed timely
objections alleging, in substance, that (1) one or more
of the participating unions had circulated an exact
copy of the official Board ballot with an "X" inserted
in the union's box for the purpose of giving the ,
impression that the Board desired the employees to
cast their votes for one of the participating labor
organizations; and (2) by this and other conduct, the
unions had interfered with the election. After investi-
gation, the Regional Director issued, on May 13,
1976, his report on objections in which he recom-
mended that the Respondent's objections be over-
ruled and the Union certified. As to Objection 1, the
Regional Director found that, since the sample ballot
was marked in the Intervenor's box and was distrib-
uted by the Intervenor, and not by the successful
Union, this distribution by the Intervenor did' not
interfere with the election under the precedent of
Vernon Convalescent Center Company, 194 NLRB 439
(1971), where the Board distinguished its decision in
Allied Electric Products, Inc., 109 NLRB 1270 (1954),
on which the Respondent relied. As to Objection 2,
the Respondent submitted no evidence in support
thereof. The Respondent failed to file exceptions to
Follett Corp., 164 NLRB 378 (1967), enfd . 397 F.2d 91 (C.A. 7,1968); Sec.
9(d) of the NLRA , as amended.
2 Oil, Chemical and Atomic Workers International Union, AFL-CIO-
CLC, herein called the Intervenor , also executed the stipulation and
appeared on the ballot.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director's report. Accordingly, the
Board on June 9, 1976, issued its Decision and
Certification of Representative in which it overruled
the Respondent's objections and certified the Union
(not reported in volumes of Board decisions).
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 proceed-
ing 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
1. THE BUSINESS, OF THE RESPONDENT
III. THE 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 production and maintenance employees
including plant clerical employees, but excluding
all office clerical employees, professional employ-
ees, technical employees, managerial employees,
guards, and supervisors as defined in the Act.
2. The certification
On April 15, 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 13, 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 June 9, 1976, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
Respondent, an Illinois corporation, has main-
tained an office and place of business at 12601 South
Springfield, Alsip, Illinois, where it is engaged in the
manufacture of health industry supplies. During the
past - calendar or fiscal year, Respondent, from its
facility, shipped goods valued in excess of $50,000
directly to enterprises located outside the State of
Illinois. During that same period, Respondent, at its
facility, received goods valued in excess of $50,000
directly from enterprises Jocated outside the State of
Illinois.
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
Local 73, General Service Employees Union,
S.E.I.U., AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3 See Pittsburgh Plate Glass Co v. N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
4 Respondent's answer to the complaint admits that the Union has
claimed and does claim to represent the unit employees but is not certain of
B. The Request To Bargain and Respondent's
Refusal
-Commencing on or about June 16, 1976, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees - in the above-described unit .4 Com-
mencing on or about June 16, 1976, 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 June 16, 1976, 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.
the date. As the Respondent's answer also admits that it refused to bargain
on or about June 16 , 1976, we find the request to bargain to have been made
on or about June 16, 1976.
OXEQUIP HEALTH INDUSTRIES , INC. 679
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 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 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
(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. Oxequip Health Industries, Inc., is an employer
engaged in commerce within 'the meaning of Section
2(6) and (7) of the Act.
2. Local 73, General Service Employees Union,
S.E.I.U., AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
including plant clerical employees, but excluding all
office clerical employees, professional employees,
technical employees, managerial employees, guards,
and 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 June 9, 1976, 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 June 16, 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 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 the Respondent,
Oxequip Health Industries, Inc., Alsip, Illinois, 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 73, General
Service Employees Union, S.E.I.U., AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees
including plant clerical employees, but excluding
all office clerical employees, professional employ-
ees, technical employees, managerial 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.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Alsip, Illinois, facility copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 13, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 13, 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 Local
73, General Service Employees Union, S.E.I.U.,
AFL-CIO, 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 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
understanding in a signed agreement. The bar-
gaining unit is:
All production and maintenance employ-
ees including plant clerical employees, but
excluding all office clerical employees, pro-
fessional employees, technical employees,
managerial employees, guards, and supervi-
sors as defined in the Act.
OXEQUIP HEALTH
INDUSTRIES, INC.