279 N.L.R.B. 1121 (N.L.R.B. 1986)

Timsco, Inc.

National Labor Relations Board - Board DecisionsMay 27, 1986

279 N.L.R.B. 1121 (N.L.R.B. 1986)

TIMSCO, INC Timsco, Inc. and Local 285, Graphic Communica- tions International Union, AFL-CIO, CLC. Case 5-CA-17508 27 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon a charge filed by the Union 12 September 1985, and amended 26 September 1985, the General Counsel of the National Labor Relations Board issued a complaint on 24 October 1985 against the Company, the Respondent, alleging that it has vio- lated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 4 September 1985, following a Board election in Case 5-RC-12337, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 10 September 1985 the Company has refused to recognize and bargain with the Union, and additionally, since on or about 16 September 1985, the Company has refused to bargain regarding the Union's grievance concern- ing the discharge of employee Louise Robinson. The Company filed an answer admitting in part and denying in part the allegations in the com- plaint. On 10 January 1986 the General Counsel filed a Motion for Summary Judgment. On 14 January 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer admits the complaint's jurisdictional allegations, that the Union was certi- fied as the exclusive bargaining representative of the unit, and that it has failed and refused to bar- gain with the Union. It denies, however, that its re- fusal to bargain was unlawful, contending that the Union's Certification of Representative was issued 1121 in violation of Section 9(c)(3) of the Act.' In its opposition to the General Counsel's Motion for Summary Judgment, the Company contends that summary judgment is inappropriate because special circumstances exist for reexamining the Board's de- cision in Case 5-RC-12337 in light of the Board's recent decision in Sunnyvale Medical Clinic,2 be- cause of a dispute about material facts regarding its duty to bargain over the discharge of Robinson, and because the General Counsel requests an un- precedented remedial "visitorial clause." The General Counsel argues that the Company is attempting to relitigate those issues rejected by the Board in the representation proceeding, and be- cause there exists no newly discovered, previously unavailable evidence or special circumstances war- ranting relitigation the Motion for Summary Judg- ment should be granted. We agree. The record, including the record in Case 5-RC- 12337, discloses that pursuant to a Stipulation of Certification Upon Consent Election, an election was conducted 7 December 1984. The tally of bal- lots showed 11 votes for and 11 against the Union. There were no challenged ballots. The Union filed timely objections to the election. On 18 January 1985 the Regional Director for Region 5 directed that a hearing be held on the ob- jections. A hearing was held 28 January and 12 February 1985. On 19 March 1985 the hearing offi- cer issued his report, recommending overruling some union objections, sustaining the remainder, and directing a second election. The Company filed timely exceptions. On 26 July 1985 the Board issued its Decision and Direction of Second Elec- tion (not published in Board volumes). The Board relied solely on the hearing officer's finding of ob- jectionable interrogations to set aside the 7 Decem- ber 1984 election.3 The Regional Director on 23 August 1985 con- ducted a second election. The tally of ballots showed 11 ballots for, and 6 against, the Union. There were no challenged and no void ballots. The Regional Director issued a Certification of Repre- sentative 4 September 1985. It is well settled that in the absence of newly dis- covered and 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 that were or could have been 1 The Company, in its answer, also denies the complaint's characteriza- tion of the Union's correspondence requesting bargaining over Robin- son's discharge The General Counsel maintains that the Company raises no material factual issues concerning this allegation of the complaint 8 277 NLRB 1217 (1985) (Member Dennis, dissenting) , Chairman Dotson relied solely on the 6 December 1984 conversa- tions between the Respondent 's president and employees Marhefka and Green 279 NLRB No. 155 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD litigated in a prior representation proceeding. See Pittsburgh Glass Co. V. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor are there any special cir- cumstances that would require the Board to reex- amine the decision made in the representation pro- ceeding.4 We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing 11. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 23 August 1985 the Union was certified 4 September 1985 as the col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part -time production and maintenance employees employed by the Respondent at its Washington , D.C. plant, spe- cifically including all employees employed in the following departments : printing, name- plate , screen , art, engraving , shipping and re- ceiving, and maintenance . Excluding : all other employees , including office clerical employees, salespersons , guards and supervisors as defined in the Act. FINDINGS OF FACT I. JURISDICTION The Company, a District of Columbia corpora- tion, is engaged in the manufacture, nonretail sale, and distribution of screen printing products at its facility in Washington, D.C., where it purchased and received products, goods, and materials valued in excess of $50,000 directly from points outside the District of Columbia. We find the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. 4 We do not agree with the Company's contention that there is a factu- al dispute regarding its duty to bargain over the Union's grievance con- cerning Robinson's discharge because the discharge occurred after the Union's election victory but prior to its certification as bargaining repre- sentative See Celotex Corp, 259 NLRB 1186, 1193 (1982), and cases cited therein Chairman Dotson finds no merit in the Company 's assertion that spe- cial circumstances exist for reexamining the representation decision in light of Sunnyvale, supra In that case, the Board simply made it clear that the totality of the circumstances test recently reiterated in Rossmore House, 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir 1985), for evaluating whether interrogations are unlawful , is to be applied to all in- terrogations, whether or not the employee involved is an open and active union supporter In the instant representation case, the hearing officer, af- firmed by the Board, expressly relied on Rossmore House in applying a totality of the circumstances test to the interrogations found to be objec- tionable Accordingly, since Sunnyvale merely clarifies Rossmore House, there is no need to reexamine the representation case in light of Sunny- vale Member Dennis finds it unnecessary to distinguish Sunnyvale where she dissented in relevant part See fn 2, above Member Babson did not participate in the underlying representation proceeding In joining his colleagues in granting the General Counsel's Motion for Summary Judgment , he notes that the Respondent is not enti- tled to litigate in this proceeding issues which could have been or were litigated in the underlying representation proceeding and that no special circumstances exist here which would warrant reexamination of the deci- sion in that prior proceeding The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 6 September 1985 the Union has requested the Company to bargain, and since 10 September 1985 the Company has refused. Since 16 September 1985 the Company has refused the Union's request to bargain regarding the Union's grievance con- cerning the discharge of employee Louise Robin- son. We find these refusals to bargain are in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 10 September 1985 to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, and by refusing since 16 September 1985 to bargain regarding the Union's grievance concerning the discharge of employee Louise Rob- inson , the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. 5 ' The General Counsel requests a "visitorial clause " authorizing the Board , for compliance purposes , to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request TIMSCO, INC We shall also order the Company to bargain with the Union concerning employee Louise Robinson's discharge. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Timsco, Inc., Washington, D.C., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 285, Graphic Communications International Union, AFL-CIO, CLC, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment, and bargain with the Union concern- ing employee Louise Robinson's discharge, and, if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time production and maintenance employees employed by the Respondent at its Washington, D.C. plant, spe- cifically including all employees employed in the following departments: printing, name- plate, screen, art, engraving, shipping and re- ceiving, and maintenance. Excluding: all other employees, including office clerical employees, salespersons, guards and supervisors as defined in the Act. (b) Post at its facility in Washington, D.C., copies of the attached notice marked "Appendix."s e If 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 Nation- al 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 " 1123 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 285, Graphic Communications International Union, AFL-CIO, CLC as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union, and WE WILL bargain with the Union regarding the Union's grievance concerning the discharge of em- ployee Louise Robinson, and put in writing and sign any agreement reached on terms and condi- tions of employment for our employees in the bar- gaining unit: All full-time and regular part-time production and maintenance employees employed by us at our Washington, D.C. plant, specifically in- cluding all employees employed in the follow- ing departments: printing, nameplate, screen, art, engraving, shipping and receiving, and maintenance. Excluding: all other employees, including office clerical employees, salesper- sons, guards and supervisors as defined in the Act. TIMSCO, INC.