Johnson Controls, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1980

248 N.L.R.B. 1362 (N.L.R.B. 1980)

1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson Controls, Inc. and International Brother-
hood of Electrical Workers, Local 103, AFL-
CIO. Case -CA-16875
April 23, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on November 26, 1979, by
International Brotherhood of Electrical Workers,
Local 103, AFL-CIO, herein called the Union, and
duly served on Johnson Controls, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 1, issued a complaint and notice
of hearing on December 18, 1979, against Respon-
dent, 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 and 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 October 30,
1979, following a Board election in Case -RC-
16288 the Union was duly certified as the exclusive
collective-bargaining representative of Respon-
dent's employees in the unit found appropriate:'
and that, commencing on or about November 19,
1979, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On December
21, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint. On February 14, 1980,
the Regional Director for Region I issued an
amendment to the complaint. Respondent filed its
answer to the amendment to the complaint on Feb-
ruary 20, 1980.
On March 17, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 20,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
I Official notice is taken of the record in the rcpresetatiton proceed-
ing, Case I-RC-lh 288, as the term "record" is defined ill Secs ()2.68
and 102 69(g) of the Board's Rules and Regulationls. Series 8, as amended
See LTV Electroysterns, Inc., 166 NL.RB 938 (1967), enfd 388 F.2d 683
(4th Cil- 1968); Goldenl Age Beveruge Co.. 167 NL.RB 151 (1967), enfd 415
F 2d 26 (5th Cir. 1969); Intertype C, s Penello. 269 F Supp 573
(D CVa 1967); 'olleIt Corp., 164 NLRB 378 (1967,. crifd 97 F 2d 91
(7th Cir 1968); Sec 9(d) of the NI.RA, as amended
248 NLRB No. 188
Cause why the General Counsel's Motion for Sum-
mary 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 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 and its response to
the Notice To Show Cause, Respondent contends
that the Union's certification was invalid because
the Board agent significantly departed from the
prearranged election schedule and misrepresented
the number of votes that the Union needed to win
the election. Respondent also contends that the
Union's representative engaged in an improper con-
versation with the Board agent during the preelec-
tion conference in the presence of eligible voters.
The General Counsel argues that all material issues
have been previously decided and there are no liti-
gable issues of fact requiring a hearing. We agree
with the General Counsel.
Our review of the record herein, including the
record in Case -RC-16288, discloses that pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted on June 1,
1979. The tally showed four votes cast for and two
against the Union, with no challenged ballots. Re-
spondent filed timely objections to conduct affect-
ing the results of the election. During the investiga-
tion of the objections, the parties signed a stipula-
tion to set aside election and a motion to the Re-
gional Director to conduct a second election. On
July 31, 1979, an election was conducted pursuant
to the stipulation. The tally showed two votes cast
for and one against the Petitioner, with one void
ballot. Respondent again filed timely objections, al-
leging the same conduct as noted above. On
August 13, 1979, the Regional Director for Region
I issued a notice of hearing directing a hearing to
resolve the substantial and material factual issues
raised by the objections. On September 10, 1979,
the Hearing Officer issued a report recommending
that the objections be overruled and that a Certifi-
cation of Representative issue. Respondent filed ex-
ceptions to the Hearing Officer's report. On Octo-
ber 30, 1979, the Board adopted the Hearing Offi-
cer's findings and recommendations and issued a
Certification of Representative.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
JOHNSON CONTROLS, INC. 1363
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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. Accordingly, we 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 RESPONDENT
Respondent is a Wisconsin corporation engaged
in the sale, installation, and service of environmen-
tal control systems and related products. During
the past 12 months, Respondent received at its
Woburn, Massachusetts, facility directly from
points outside the Commonwealth of Massachusetts
goods valued in excess of $50,000.
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 jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
Local 103, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
i. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All electronic technicians in the technical sup-
port department employed by the Employer at
its 16 Wheeling Avenue, Woburn, Massachus-
setts, location, excluding all employees in
other departments, office clerical, professional,
2 See Pittsburgh Plate Glass Co, v. N.L.R.B., 313 U.S 146, 162 (1941L
Rules and Regulations of the Board, Secs 102.67(f) and 102.6
9 (c)
managerial, and confidential employees, guards
and supervisors as defined in the Act.
2. The certification
On July 31, 1979, 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
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on October 30, 1979, 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 November 16, 1979,
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 November 19, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
November 19, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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.
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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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
JOHNSON CONTROLS, INC.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication 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 (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
1. Johnson Controls, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Electrical Work-
ers, Local 103, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All electronic technicians in the technical sup-
port department employed by the Employer at its
16 Wheeling Avenue, Woburn, Massachussetts, lo-
cation, excluding all employees in other depart-
ments, office clerical, professional, managerial, and
confidential 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 October 30, 1979, 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 November 19, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 the Respondent,
Johnson Controls, Inc., Woburn, 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 International
Brotherhood of Electrical Workers, Local 103,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All electronic technicians in the technical sup-
port department employed by the Employer at
its 16 Wheeling Avenue, Woburn, Massachu-
setts, location, excluding all employees in
other departments, office clerical, professional,
managerial, and confidential employees, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at 16 Wheeling Avenue, Woburn, Mas-
sachusetts, copies of the attached notice marked
"Appendix." 3 Copies of said notice, on forms pro-
vided by the Regional Director for Region 1, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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.
3 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 Pursu-
ant to a Judgment of the United States Court of appeals enforcing an
Order of the National Relations Board."
JOHNSON CONTROLS, INC. 1365
(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.
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 International Brotherhood of Electrical
Workers, Local 103, AFL-CIO, as the exclu-
sive 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 employ-
ees 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 represen-
tative 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 electronic technicians in the technical
support department employed by the Em-
ployer at its 16 Wheeling Avenue, Woburn,
Massachusetts, location, excluding all em-
ployees in other departments, office clerical,
professional, managerial, and confidential
employees, guards and supervisors as de-
fined in the Act.
JOHNSON CONTROLS, INC.
JOHNSON CONTROLS, INC. 365