Merit Stainless Steel, Inc.

MERIT STAINLESS STEEL. INC. Merit Stainless Steel, Inc. and International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, (UAW). Case 7-CA 16459 September 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on June 7, 1979, by Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW), herein called the Union, and duly served on Merit Stainless Steel, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on June 21, 1979, against Respondent, alleging that Respondent had engaged in and was en- gaging 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 proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on May 4, 1979, fol- lowing a Board election in Case 7-RC-15141 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 June 1, 1979, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On June 29, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 20, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 27, 1979, 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 I Official notice is taken of the record in the representation proceeding, Case 7-RC-15141, as the term "record" is defined in Seecs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electroysrems, Inc., 166 NLRB 938 (1967) enfd. 388 F.2d 683 (4th Cir 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.. 1967)1: Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir 1968): Sec. 9(d) of the NLRA. as amended. be granted. Respondent 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 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 Notice To Show Cause, Respondent asserts that the certification issued to the Union in the underlying representation case is invalid because (I) its objec- tions to the conduct of the election raise substantial and factual issues; (2) Respondent was denied an evi- dentiary hearing on its objections; (3) there were too many Board agents assigned to the election which precluded any continuity or consistency; and (4) the Union and certain employees of Respondent engaged in conduct which destroyed the "laboratory condi- tions" of the election. A review of the record herein, including the record in Case 7-RC-15141, reveals that pursuant to a Stipulation for Certification Upon Consent Election an election was held on December 15, 1978, and re- sulted in a 26-to-17 vote in favor of the Union with 13 challenged ballots, which were sufficient to affect the outcome of the election. On January 15, 1979, the Regional Director approved a stipulation resolving certain challenged ballots which was entered into by the parties. A revised tally of ballots issued showing a 28-to-26 vote in favor of the Union with 2 challenged ballots remaining unresolved and determinative of the election results. Respondent filed timely objec- tions to the conduct affecting the election. Respon- dent alleged that the Union made material misrepre- sentations to employees and distributed literature to employees within the insulated 24-hour period prior to the election. On February 2, 1979, the Regional Director issued his report and recommendations on the determinative challenges and the objections in which he recommended that the Board sustain the challenge to one ballot on the basis that the individ- ual involved was determined to be a supervisor, make no ruling on the other challenge, issue a revised tally. overrule all of the Employer's objections, and issue the appropriate certification. On February 13, 1979, Respondent filed timely ex- ceptions to the Regional Director's recommendation in which it, inter alia, requested that an evidentiary hearing be held. On May 4, 1979, the Board issued a Decision and Certification of Representative adopt- ing the Regional Director's findings and recommen- 245 NLRB No. I DECISIONS OF NATIONAL LABOR RELATIONS BOARD dations. 2 On May 9, 1979, Respondent reiterated its request to the Board that a hearing be held. The Board on May 30, 1979, issued an order denying the request, holding that an evidentiary hearing was not warranted. It is well settled that in the absence of newly dis- covered 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 proceeding.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly 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 Michigan corporation, with its prin- cipal place of business at 28332 Hayes, Roseville, Michigan, is engaged in the fabrication, sale, and dis- tribution of steel and related products. During the past calendar year, Respondent received gross rev- enues in excess of $50,000, and purchased and re- ceived, in interstate commerce, steel products and other materials valued in excess of $50,000 from points located outside the State of Michigan. We find, on the basis of the foregoing, that Respon- dent 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 Amer- ica, (UAW), is a labor organization within the mean- ing of Section 2(5) of the Act. 2 The Decision and Certification of Representative is not reported in vol- umes of Board Decisions. 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). II111. THE UNFAIR LABOR PRA(CTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding all shipping and receiving employees and local truck drivers employed by the Employer at its Roseville plant; but excluding all office cleri- cal employees, over-the-road truck drivers, man- agerial employees, guards and supervisors as de- fined in the Act. 2. The certification On December 15, 1978, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on May 4, 1979, 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 15, 1979, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of all the employees in the above-described unit. Commencing on or about June 1, 1979, and continuing at all times thereafter to date, Respondent has refused, and continues to re- fuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 1, 1979, 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, Respondent has en- gaged 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 PRACTI(CES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations 2 MERIT STAINLESS STEEL. INC. described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate 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 Con- struction 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. Merit Stainless Steel, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica, (UAW), is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees in- cluding all shipping and receiving employees and lo- cal truck drivers employed by the Employer at its Roseville plant; but excluding all office clerical em- ployees, over-the-road truck drivers, managerial em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 4, 1979, 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 , 1979, and at all times thereafter to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 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 Rela- tions Board hereby orders that the Respondent, Merit Stainless Steel, Inc., Roseville, Michigan, 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 con- ditions of employment with International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, (UAW), as the exclu- sive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees in- cluding all shipping and receiving employees and local truck drivers employed by the Employer at its Roseville plant; but excluding all office cleri- cal employees, over-the-road truckdrivers, man- agerial employees, guards and supervisors as de- fined 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its 28332 Hayes. Roseville, Michigan, plant copies of the attached notice marked "Appen- 3 DECISIONS OF NATIONAL LABOR RELATIONS BOAR[ dix."4 Copies of said notice, on forms provided by the Regional Director for Region 7, 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 thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, 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. 4 In the event that this Order is enforced by a Judgment ofa 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." 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 Inter- national Union. United Automobile. Aerospace and Agricultural Implement Workers of Amer- ica, (UAW), as the exclusive representative of the employees in the bargaining unit described below. WI: wII.. NOI 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 de- scribed 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 agreement. The bargaining unit is: All production and maintenance employees including all shipping and receiving employees and local truck drivers employed by the Em- ployer at its Roseville plant; but excluding all office clerical employees, over-the-road truck drivers, managerial employees, guards and su- pervisors as defined in the Act. MERIT STAINLESS STEEL, IN('. 4