B. D. Holt Co., 311 (1974)

2. D. HOLT COMPANY B. D. Holt Company and International Union of Operating Engineers, Local 450, AFL-CIO. Case 23-CA-5168

   December 5, 1974 DECISION AND ORDER

   BY MEMBERS FANNING, KENNEDY AND PENELLO Upon a charge filed on July 2, 1974, by International Union of Operating Engineers, Local 450,

   AFL-CIO, herein called the Union, and duly served on B. D. Holt Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on July 17, 1974, against Respondent, 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, 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 29, 1974, following a Board election in Case 23-RC-4037 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about July 2, 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 July 29, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint.

   On August 9, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and an amendment thereto on August 27, 1974. Subsequently, on September 6, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the r'veneral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled 'Respondent's Opposition to the General Counsel's Motion to the Board for Official notice is taken of the record in the representation proceeding,

   Case 23-RC-4037, 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 LTVElectrosystems, 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 (CA. 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va, 1957), Follett Corp., 164 NLRB 378 (1967), enfd 397 F2d 91 (CA 7, 1968), Sec 9(d) of the NLRA 311

   Summary Judgment and a Motion to Include Additional Evidence in the Record.' 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 its opposition to the General Counsel's Motion for Summary Judgment,

   Respondent contends that it has not refused to bargain in violation of Section 8(a)(5) and (1) because the Board's certification was invalid and because it did not unequivocally refuse to bargain. The General Counsel contends that Respondent has either admitted the allegations of the complaint or raised issues which it previously presented in its objections to the election. We agree with the General Counsel.

   Our review of the record herein, including the record in Case 23-RC-4037, discloses that in an election conducted on January 9, 1974, pursuant to a Stipulation for Certification Upon Consent Election, the Union won by a vote of 47 to 29, with 5 ballots challenged.

   Respondent filed timely objections to conduct affecting the results of the election in which it alleged, in substance, that the Union misled unit employees with assurances that, in the event of a union victory, they would be assigned to a sublocal of the petitioning local in which the dues and initiation fee would be substantially lower than those of the parent local and that the Union threatened employees in order to secure authorization cards. After an investigation, the Regional Director, on March 12, 1974, issued a Report and Recommendations on Election in which he recommended that the objections be overruled in their entirety and that the Union be certified. Respondent filed timely exceptions to the Regional Director's report, together with a supporting brief, in which it substantially reiterated its election objections and requested an adversary hearing on its objections.

   On May 29, 1974, the Board issued a Decision and Certification of Representative in which it adopted the findings, conclusions, and recommendations of the Regional Director, overruled Respondent's objections to the election, and certified the Union as the exclusive bargaining representative of the employees in the stipulated appropriate unit.' 2 On September 23, 1974, Respondent, for the sake of accuracy, moved the Board to augment the record by directing the General Counsel to make available to us the original affidavits of employees which were submitted to the Regional Director in connection with his investigation of Respondent's objections in the underlying representation proceeding Absent any dispute by the Regional Director as to the accuracy of these affidavits, copies of 215 NLRB No. 49

   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.' .

   All issues raised by the Respondent in this proceeding were or could have been litigated in the...