P.A.F. Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1975

216 N.L.R.B. 271 (N.L.R.B. 1975)

P.A.F. EQUIPMENT CO., INC. 271
P.A.F. Equipment Co., Inc. and United Steelworkers
Union, AFL-CIO-CLC. Case 17-CA-6157
January 23, 1975
DECISION AND ORDER
By ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
Upon a charge filed on July 24, 1974, by United
Steelworkers Union, AFL-CIO-CLC, herein called
the Union, and duly served on P.A.F. Equipment
Co., Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 17, issued a
complaint on August 22, 1974, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commer-
ce 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 May 13, 1974,
following a Board election in Case 17-RC-7279, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;1 and that, commenc-
ing on or about May 31, 1974, 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 September 3, 1974, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On September 23, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 1,
1974, 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. Re-
spondent 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
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 in its response to
the Notice To Show Cause, Respondent admits the
factual allegations of the complaint , but contends
that it is not obligated to bargain with the certified
Union because the Regional Director erred in
processing the Union 's petition in the underlying
representation case , despite the alleged supervisory
participation in the Union's organizing campaign,
and because it has been denied a hearing on the issue
of supervisory participation which it also raised in its
objections to the election . The General Counsel
contends that Respondent is attempting to relitigate
matters heard and determined in the representation
proceeding. We agree with the General Counsel.
Our review of the record herein , including the
record in Case 17-RC-7279, indicates that 1 day
before the hearing in the representation case Re-
spondent filed a motion to dismiss the petition on the
ground that four of its five foremen had secured, or
otherwise contributed to, the acquisition of union
authorization or membership cards used by the
Union as a showing of interest to support its petition.
After an administrative investigation, the Regional
Director , in his Decision and Direction of Election,
denied the motion, finding that, after eliminating
cards involving supervisory solicitation , the showing
of interest was sufficient . Respondent requested
review of the Regional Director 's Decision and
Direction of Election , reiterating its contention of
supervisory participation in securing cards. In a
telegraphic communication of January 21, 1974, the
Board denied the request for review as raising no
substantial issues warranting review. In the election
conducted pursuant to the Regional Director's
Decision and Direction of Election , the vote was 83
to 40 in favor of the Union , with 5 ballots challenged.
Respondent filed timely objections to conduct
affecting the results of the election . The first
objection again raised the issue of supervisory
participation in organizational activity , and the
second alleged that the Union had misrepresented
the amount of its dues and had promised to waive
initiation fees for employees who joined the Union
before the election . After an investigation, the
Regional Director, on March 28 , 1974, issued a
Supplemental Decision on Objections and Order
Directing Hearing on Certain Objection, in which he
overruled Respondent's first objection relating to
I
Official notice is taken of the record in the representation proceeding, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
Case 17-RC-7279, as the term "record" is defined in Secs . 102.68 and (C.A. 5, 1969); Intertype Co v. Penello, 269 F.Supp. 573 (D.C. Va., 1957);
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd . 388 F .2d 683 (C.A. 4, 9(d) of the NLRA.
216 NLRB No. 36
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory participation and denied a hearing
thereon because there were no substantial or material
issues of fact or law warranting a hearing. However,
he directed a hearing on the second objection.
Respondent requested review of said Supplemental
Decision insofar as it related to the Regional
Director's disposition of its first objection and
affirmatively requested a hearing thereon. In a
telegraphic communication of April 22, 1974, the
Board denied Respondent's request for review of the
Regional Director 's Supplemental Decision on the
ground that it raised no substantial issues warranting
review.
Respondent , on May 6, 1974, filed with the
Regional Director a motion to withdraw Objection 2
on the basis that its resolution would not decide the
basic question of whether the petition should have
been processed in the first place. In a Second
Supplemental Decision on Objections and Certifica-
tion of Representative issued May 13, 1974, the
Regional Director approved Respondent 's motion
and permitted withdrawal of its second objection and
ruled that since all objections were thus either
overruled or withdrawn he would certify the Union,
which he did. Respondent thereupon filed a request
for review of the Second Supplemental Decision on
Objections and Certification of Representative in
which it again raised the issue of supervisory
participation in the election process , the subject of its
first objection, and requested a hearing thereon. In a
telegraphic communication of June 17, 1974, review
was denied as raising no substantial issue warranting
review. It thus appears that the issues raised by
Respondent in this proceeding have been litigated in
a hearing before the Regional Director and have
been determined by the Board on three occasions.
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.2
All issues raised by the Respondent in this
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.
2 See Pittsburgh Plate Glass Co v. NLR.B., 313 U .S. 146, 162 ( 1941);
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation engaged in the pro-
duction of handtools at its facility in Hiawatha,
Kansas, annually sells goods and services 'valued in
excess of $50,000 directly to firms and enterprises
located outside the State of Kansas . It also sells
annually goods and services valued in excess of
$50,000 directly to firms and enterprises within the
State of Kansas which , in turn, annually sell goods
and services valued in excess of $50,000 directly to
firms or enterprises located outside the State of
Kansas.
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 Steelworkers Union , AFL-CIO-CLC, 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 full-time and regular part-time production
and maintenance employees of P.A.F. Equipment
Co., Inc., at its Hiawatha , Kansas, plant , includ-
ing janitors-watchmen, but excluding office cleri-
cal employees , foremen , professional employees,
guards and other supervisors as defined in the
Act.
2. The certification
On February 15, 1974, 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 17, designated the Union as their
representative for the purpose of collective-bargain-
ing with the Respondent. The Union was certified as
Rules and Regulations of the Board , Sam. 102 .67(f) and 102.69(c).
P.A.F. EQUIPMENT CO., INC.
the collective -bargaining representative of the em-
ployees in said unit on May 13, 1974, 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 May 24, 1974, 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 May 31, 1974, 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 May 31, 1974, 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, Respond-
ent 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 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 commer-
ce.
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-
273
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. P.A.F. Equipment Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Steelworkers Union, AFL-CIO-CLC,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees of P.A.F. Equipment
Co., Inc., at its Hiawatha, Kansas, plant, including
janitors-watchmen, but excluding office clerical
employees, foremen, professional employees, guards
and other 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 May 13, 1974, 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 May 31, 1974, 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, Respond-
ent 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 Respondent,
P.A.F. Equipment Co., Inc., Hiawatha, Kansas, its
officers, agents, successors, and assigns, shall:
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Steelworkers
Union , AFL-CIO-CLC, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All full-time and regular part -time production
and maintenance employees of P.A.F. Equipment
Co., Inc ., at its Hiawatha, Kansas , plant, includ-
ing janitors-watchmen , but excluding office cleri-
cal employees , foremen , professional employees,
guards and other 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 plant in Hiawatha, Kansas, copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional
Director for Region 17, 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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 17, 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 United
Steelworkers Union, AFL-CIO-CLC, 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 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 full-time and regular part-time pro-
duction and maintenance employees of
P.A.F. Equipment Co., Inc., at its Hiawatha,
Kansas, plant, including janitors-watchmen,
but excluding office clerical employees,
foremen, professional employees, guards and
other supervisors as defined in the Act.
P.A.F. EQUIPMENT CO.,
INC.
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 pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "