Crown Metal Mfg., Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crown Metal Manufacturing Co., Inc. and United Steelworkers of America, AFL-CIO. Case 13-CA- 17902 November 22, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on August 7, 1978, by United Steelworkers of America, AFL-CIO, herein called the Union, and duly served on Crown Metal Manu- facturing Co., Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13. is- sued a complaint and notice of hearing on August 22, 1978, 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 be- fore an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges, in substance, that on June 30, 1978, following a Board election in Case 13-RC-14433, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; ' and that, commenc- ing on or about July 13, 1978, and at all times there- after, 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 September 1, 1978, Respondent filed its answer to the complaint admitting in part and denying in part the allegations in the complaint. On September 12, 1978, the Regional Director for Region 13 issued an amendment to the complaint. Respondent filed its answer to the amendment to the complaint on Sep- tember 21, 1978. On September 26, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 6, 1978, the Board issued an order transferring the pro- Official notice is taken of the record in the representation proceeding, Case 13 RC 14433. as the term "record" is defined in Sec 102.68 and Sec 102.6 9 (g) of the Board's Rules and Regulations, Series 8. as amended. See LTV Electrosvstems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968). Golden Age Beverage Co., 167 NiLRB 151 (1967). enfd 415 F 2d 26 (5th Cir. 1969); Inrerype (Co. v. Penello, 269 F.Supp. 573 (D.C Va., 1967); Follett Corp.. 164 NLRB 378 (1967). enfd 397 F 2d 91 (7th (ir. 1968). Sec. 9(d) of the NL.RA, as amended. ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after 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 its response to the Notice To Show Cause, Respondent contends that the Union's certification was invalid because the Union threatened voters with, inter alia, loss of jobs and raids by the Federal Immigration and Naturali- zation Service, and because the secrecy of the ballot was impaired, thus interfering with the employees' choice in the election. The General Counsel argues that all material issues have been previously decided and there are no litigable issues of fact requiring a hearing. We agree with the General Counsel. Our review of the record herein, including the rec- ord in Case 13-RC-14433, discloses that, pursuant to a Stipulation for Certification Upon Consent Elec- tion, an election was conducted on July 29, 1977. The tally showed 50 votes cast for and 46 against the Union, with 4 challenged ballots. Respondent filed timely objections to conduct affecting the results of the election, alleging essentially the same conduct as noted above. On September 23, 1977, the Regional Director for Region 13 issued a report on the challenged ballots and notice of hearing in which he recommended that one challenge be sustained and a hearing be held to resolve the substantial factual and material credibili- ty issues raised by the objections. The Board adopted the Regional Director's report on October 19, 1977. On March 30, 1978, the Hearing Officer issued a re- port recommending that Respondent's objections be overruled in their entirety and that a certification of representative issue. Respondent filed exceptions and the Union filed cross-exceptions to the Hearing Officer's report. On June 30, 1978, the Board adopt- ed the Hearing Officer's findings and recommenda- tions and issued a certification of representative. 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 reliti- gate issues which were or could have been litigated in a prior representation proceeding.2 'See Pittsburgh Plate Glass Co. . N.LR.B. 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.6 9(c). 436 CROWN METAL MFG. CO.. INC. 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 pre- viously 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 proper- ly 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: FINDIN;S OF FA(CI I THE BUSINESS OF RESPONDENI Respondent is an Illinois corporation engaged in the manufacture and distribution of metal display products. During the past 12 months, Respondent sold and shipped from its Chicago, Illinois, facility directly to points outside the State of Illinois goods valued in excess of $50,000. 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 juris- diction herein. I1. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 11I. THE UNFAIR LABOR PRACTICES 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 warehouse employees, toolroom em- ployees, and plant clerical employees employed at the Employer's facilities now located at 5912 S. Lowe, 5925 S. Lowe, and 535 West 59th Street, Chicago, Illinois, but excluding all office clerical employees, and all professional employ- ees, guards, and supervisors as defined in the Act. 2. The certification On July 29, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 13, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 30, 1978, and the Union contin- ues to be such exclusive representative within the meaning of Secticn 9(a) of the Act. B. The Rcquext To Bargain and Respondent's Refusal Commencing on or about July 5, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about July 13, 197S, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, 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 July 13, 1978, 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 (I) of the Act. IV. I1E FFFrE(r OF THEill UNFAIR LABOR PRACTI(ES UtPON COMMERCE The activities of Respondent set forth in section 11, above, occurring in connection with its opera- tions described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. HFE 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 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 (lOth Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI.USIONS OF LAW I. Crown Metal Manufacturing Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding all warehouse employees, toolroom employ- ees, and plant clerical employees employed at the Employer's facilities now located at 5912 S. Lowe, 5925 S. Lowe, and 535 West 59th Street, Chicago, Illinois, but excluding all office clerical employees, and all professional employees, guards, and supervis- ors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 30, 1978, 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 July 13, 1978, 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 mean- ing 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 Re- lations Board hereby orders that the Respondent, Crown Metal Manufacturing Co., Inc., Chicago, Illi- nois, its officers. agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with United Steelworkers of America, AFL-CIO, as the exclusive bargaining rep- resentative of its employees in the following appro- priate unit: All production and maintenance employees, in- cluding all warehouse employees, toolroom em- ployees, and plant clerical employees employed at the Employer's facilities now located at 5912 S. Lowe, 5925 S. Lowe, and 535 West 59th Street, Chicago, Illinois, but excluding all office clerical employees, and all professional employ- ees, guards, and supervisors as defined 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at 5912 S. Lowe, 5925 S. Lowe, and 535 West 59th Street, Chicago, Illinois, copies of the at- tached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respon- 3 In 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 Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 438 CROWN METAL MFG. CO., INC. dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, 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 United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, 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 warehouse employees, toolroom employees, and plant clerical employees em- ployed at the Employer's facilities now locat- ed at 5912 S. Lowe, 5925 S. Lowe, and 535 West 59th Street, Chicago, Illinois, but ex- cluding all office clerical employees, and all professional employees, guards, and supervis- ors as defined in the Act. CROWN METAL MANUFACTURING CO.. INC. 439