Leslie Metal Arts Co., Inc.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leslie Metal Arts Company, Inc. and International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW). Case 7-CA-17397 May 2, 1980 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge filed on February 11, 1980, by In- ternational Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Leslie Metal Arts Company, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on February 20, 1980, 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 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 January 15, 1980, following a Board election in Case 7-RC- 15312, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about February 6, 1980, 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 February 26, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. 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 Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent I Official notice is taken of the record in the representation proceed- ing, Case 7-RC-15312, as the term "record" is defined in Secs. 10268 and 102.69 (g) of the Board's Rules and Regulations, Series 8, as amended. See LT'V' Eletromysternm. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. I968; Golden Age Beverage Co., 167 NLR: 151 (1967), efd. 415 F2d 26 (5th Cir 1469). Interrype Co. vs Penello, 269 F.Supp. 573 (D C Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended 249 NLRB No. 21 thereafter filed a response to the 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, Respondent admits the Union's request and its refusal to bar- gain, but in substance attacks the validity of the Union's certification on the basis of its objections to the election in the underlying representation proceeding. The General Counsel argues that all material issues have been previously decided. We agree w.ith the General Cousel. Review of the record herein, including the record in Case 7-RC-15312, discloses that on April 25, 1979, pursuant to a Stipulation for Certification Upon Consent Election, an election was held among the employees in the stipulated unit. The tally of ballots showed that, of approximately 190 eligible voters, 84 cast valid ballots in favor of, and 79 against, the Union; there were 5 determinative challenged ballots. On May 1979, Respondent filed timely objections to conduct affecting the results of the election. Following an investigation, the Re- gional Director, on May 3, issued an order requir- ing that a hearing be held on the determinative challenges and objections. 2 After the hearing, the Hearing Officers recommended that Respondent's objections be overruled, that the challenges to four ballots be sustained, and that the challenge to the fifth ballot be overruled. Thereafter, Respondent filed exceptions to the recommendations that its ob- jections be overruled. On January 15, 1980, the Board adopted the Hearing Officers' reports, and certified the Union as the exclusive bargaining rep- resentative of the employees in the stipulated unit. 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.3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior 2 There were two Hearing Officers' reports in the underlying represen- tation case. Hearing Officer Joseph P. Canfield heard all evidence relat- ing to the challenges and Respondent's Objections I and 3. but recused himself on Respondent's Objection 2 because it required a credibility finding on testimony presented by a Board agent assigned to the staff of Region 7. Hearing Officer John Simonetti heard evidence and made a recommendation on Respondent's Objection 2. :' See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). LESLIE METAL ARTS COMPANY, INC. 231 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, a Michigan corporation, is and has been at all times material herein, engaged in the manufacture and nonretail sale of steel stampings and assemblies. Only its facility located at 3225 32d Street, SE., in Grand Rapids, Michigan, herein called Plant 1 is involved in this proceeding. During calendar year 1979, a representative period, Respondent sold and shipped goods valued in excess of $50,000 from its Grand Rapids, Michigan, Plant 1, directly to customers located outside the State of Michigan. 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 International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), 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 Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees, including tool room employees, employed by Respondent at its Plant I located at 3225 32d Street, SE., Grand Rapids, Michigan, but excluding all office clerical employees, plant clerical em- ployees, technical, engineering, and profession- al employees, drivers, confidential employees, salesmen, guards and supervisors as defined in the Act. 2. The certification On April 25, 1979, 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 7, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certi- fied as the collective-bargaining representative of the employees in said unit on January 15, 1980, and the Union continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 21, 1980, 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 February 6, 1980, 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 February 6, 1980, 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, 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 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 I- ------- 232 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. Leslie Metal Arts Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), 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, including tool room employees, employed by Respondent at its Plant 1 located at 3225 32d Street, SE., Grand Rapids, Michigan, but excluding all office clerical employ- ees, plant clerical employees, technical, engineer- ing, and professional employees, drivers, confiden- tial employees, salesmen, 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 January 15, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all the 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 February 6, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive 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)(l) 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, Leslie Metal Arts Company, Inc., Grand Rapids, Michigan, its officers, agents, successors, and as- signs, 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 Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time and regular part-time production and maintenance employees, including tool room employees, employed by Respondent at its Plant I located at 3225 32d Street, SE., Grand Rapids, Michigan, but excluding all office clerical employees, plant clerical em- ployees, technical, engineering, and profession- al employees, drivers, confidential employees, salesmen, 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 Plant 1, 3225 32d Street, SE., Grand Rapids, Michigan, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's 4In 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 Labor Relations Board " LESLIE METAL ARTS COMPANY, INC. 233 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 7, 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 Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America (UAW), as the exclusive repre- sentative 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 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 full-time and regular part-time produc- tion and maintenance employees, including tool room employees, employed by us at our Plant I located at 3225 32d Street, SE., Grand Rapids, Michigan, but excluding all office clerical employees, plant clerical em- ployees, technical, engineering, and profes- sional employees, drivers, confidential em- ployees, salesmen, guards and supervisors as defined in the Act. LESLIE METAL ARTS COMPANY, INC.