Rish Equipment Company

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1139 (N.L.R.B. 1981)

RISH EQUIPMENT COMPANY
Rish Equipment Company, a Subsidiary of Bluefield
Supply Company, Inc. and Food Store Employ-
ees Union, Local 347, United Food and Com-
mercial Workers International Union, AFL-
CIO. Case 9-CA-17080
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on July 6, 1981, by Food
Store Employees Union, Local 347, United Food
and Commercial Workers International Union,
AFL-CIO, herein called the Union, and duly
served on Rish Equipment Company, A Subsidiary
of Bluefield Supply Company, Inc., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 9, issued a complaint on July 23, 1981,
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 and the 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 4, 1981,
following a Board election in Case 9-RC-13677,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about June 2, 1981, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On August 3, 1981, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On August 12, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 17,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
' Official otice is taken of the record in the representation proceeding,
Case 9gRC-13677, as he ernm "record" is defined in Sees 10268 and
102.6 9(g) of the Board's Rules and Regulations. Series . .s, imended See
Ll'I' Elerrosystcmn. Inc., 166 NLRB 93.1 (1967). enfd 388 2d h83 (4ih
Cir. 19681) Golden Age Beverage Co.. 167 N.RH 151 (1967). enfd 415
F.2d 26 (5th Cir. 1969): literrvpi Co. v. Penlio, 269 1:Supp 573
(D.C.Va. 19h7); FIhllett Corp., 164 NRH 378 (1967). enfd 3q97 F 2d 91
(71h Cir 1968): Sec 9(d) of the NLRA, as amended
258 NLRB No. 151
thereafter filed a response to the Motion for Sum-
mary Judgment.
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 response to
the Motion for Summary Judgment, Respondent
admits it refused the Union's request to bargain
with it as the exclusive bargaining representative of
a unit comprised of Respondent's clerical employ-
ees. Respondent contests the validity of the certifi-
cation issued by the National Labor Relations
Board. Specifically, Respondent argues that the
unit is inappropriate because it includes confidential
employees regularly dealing with Respondent's
labor relations policy. The General Counsel asserts
that Respondent seeks to relitigate issues that were
raised and decided in the representation case. We
agree with the General Counsel.
Our review of the record, including the record
in Case 9-RC-13677, reveals that following a hear-
ing on the Union's petition, during which Respond-
ent was accorded full opportunity to be heard, the
Regional Director issued his Decision and Direc-
tion of Election on March 27, 1981. Thereafter,
Respondent filed a request for review. By telegram
dated April 21, 1981, the Board denied Respond-
ent's request for review because it raised no sub-
stantial issues warranting review. On April 24,
1981, an election was conducted which resulted in
a four to one vote for the Union with two chal-
lenged ballots. The challenged ballots were not suf-
ficient to affect the results of the election. On May
4, 1981, the Regional Director certified the Union
as the exclusive bargaining representative of the
unit employees.
By letter on or about May 28, 1981, the Union
requested that Respondent bargain with it as the
exclusive collective-bargaining representative of
the clerical employees with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment. By telephone on or
about June 2, 1981, Respondent advised the Union
that it would not bargain with the Union. The
Union filed with the Board an unfair labor practice
charge based on Respondent's refusal to bargain
with it. Respondent subsequently sent a letter to
the Regional Office for Region 9 reiterating its po-
sition that, contrary to the Regional Director's unit
findings, the certified unit is inappropriate. It thus
appears that Respondent is attempting to again
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raise issues that were raised in the underlying rep-
resentation case.
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-
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
1. THE BUSINESS OF RESPONDENT
Respondent, a West Virginia corporation, with a
place of business in St. Albans, West Virginia, is
engaged in the retail sale and service of construc-
tion machinery. During the past 12 months, a rep-
resentative period, Respondent, in the course and
conduct of its business operations, derived gross
revenues in excess of $500,000, and purchased and
received at its facility products and goods valued
in excess of $50,000 directly from points outside
the State of West Virginia.
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.
II. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union, Local 347, United
Food and Commercial Workers International
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2 See Pimtburgh Plate G/rrm Co. v. .L.R.., 313 U.S 14h, 162 (1941):
Rules and Regulations of the oard. Secs. 102.67(f) and 102 69 (c).
III. 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 office clerical employees employed by the
Employer at its Branch One facility at St.
Albans, West Virginia, excluding all other em-
ployees, and all professional employees, guards
and supervisors as defined in the Act.
2. The certification
On April 24, 1981, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 9, 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 May 4, 1981, 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 28, 1981, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about June 2, 1981, and continuing
at all times thereafter to date, Respondent has re-
fused, 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
June 2, 1981, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 1, above, have a close,
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RISH EQUIPMENT COMPANY
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
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:
CONCIUSIONS OF LAW
1. Rish Equipment Company, A Subsidiary of
Bluefield Supply Company, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Food Store Employees Union, Local 347,
United Food and Commercial Workers Internation-
al Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All office clerical employees employed by Re-
spondent at its Branch One facility at St. Albans,
West Virginia, excluding all other employees, and
all 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 May 4, 1981, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about June 2, 1981, 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 prac-
tices 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,
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,
Rish Equipment Company, A Subsidiary of Blue-
field Supply Company, Inc., St. Albans, West Vir-
ginia, 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 Food Store Em-
ployees Union, Local 347, United Food and Com-
mercial Workers International Union, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All office clerical employees employed by the
Employer at its Branch One facility at St.
Albans, West Virginia, excluding all other em-
ployees, and all professional 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 its Branch One facility at St. Albans,
West Virginia, copies of the attached notice
1141
DIECISIONS OF NATIONAL LAB()R REI.A'II()NS BOII()ARDI)
marked "Appendix. " 3 Copies of said notice, on
forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous 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 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' In the eent that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted hy
Order of the National Labor Relations Board" shall read "Polsled 'irsiu
-
ant I a Judgment olf Ihe United States Court of Appeals 'lilforcing ian
Order of the National l abor Relatiots Board
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARI)
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 Food Store Employees Union, Local 347,
United Food and Commercial Workers Inter-
national Union, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WI Wll.lI NO 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.
WIE Wll.l, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All office clerical employees employed by
the Employer at its Branch One facility at
St. Albans, West Virginia, excluding all
other employees, and all professional em-
ployees, guards and supervisors as defined in
the Act.
RISH EQUIPMENT COMPANY, A SUB-
SIDIARY OF BI.UFIFII.D SUPPLY COM-
PANY, INC.
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