Precision Fabricators, Inc.

PRECISION FABRICATORS, INC. Precision Fabricators, Inc. and Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Ironworkers, AFL- CIO. Case 29-CA-6157 November 21, 1978 DECISION AND ORDER By MEMBERS JENKINS, PENELLO. AND MURPHY Upon a charge filed on January 11, 1978, by Shopmen's Local Union No. 455, International As- sociation of Bridge, Structural and Ornamental Iron- workers, AFL-CIO, herein called the Union, and duly served on Precision Fabricators, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 29, issued a complaint and notice of hearing on February 28, 1978, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive 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 December 22, 1977, following a Board election in Case 29-RC- 3697, 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 January 3, 1978, and at all times thereafter, Respondent has refused, and con- tinues 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 March 20, 1978, Respondent filed its answer to the complaint admitting in part and deny- ing in part the allegations in the complaint. On June 20, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 6, 1978, 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 29-RC-3697, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTV Electrosystems, 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 (Sth Cir. 1969); Interrype Co. v. Penello, 269 FSupp. 573 (D.C.Va., 1967); 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, Respondent admits its refusal to bargain but denies that it thereby vio- lated Section 8(a)(5) and (1) of the Act in that the election held on March 11, 1977, should have been set aside on the ground that union representatives engaged in unlawful, objectionable conduct immedi- ately before and on the day of the election. In its statement in opposition to Motion for Summary Judgment, Respondent contends its objections raise serious factual issues requiring a hearing and that the Board erred in applying the principles of Shopping Kart Market, Inc., 228 NLRB 1311 (1977), rather than those of Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962), in affirming the Regional Director's overruling of its objections. Counsel for the General Counsel argues that Respondent's con- tentions are without merit as they raise issues which were presented to and decided by the Board in the underlying representation case. A review of the record herein, including that in Case 29-RC-3697, shows the following: On March 11, 1977, an election was held pursuant to a Stipula- tion for Certification Upon Consent Election in which a majority of the unit employees designated the Union as their representative for purposes of col- lective bargaining. On March 18, Respondent filed objections to the conduct of the election which were overruled in their entirety by the Regional Director in his Report on Objections, issued May 20, 1977. Thereafter, Respondent filed with the Board its ex- ceptions to the Regional Director's Report on Objec- tions. On December 22, 1977, the Board issued its Decision and Certification of Representative2 in which it adopted the Regional Director's findings and recommendations and certified the Union as the bargaining representative of the employees in the ap- propriate unit.3 By letter dated December 27, 1977, the Union re- quested Respondent "to set up collective bargaining 233 NLRB 1404. 3 Member Jenkins dissented in part and would have directed a heanng on Respondent's Objection 1. He agreed with the majority that Objections 2 through 5 were without merit He adheres to his view about Objection I hut recognizes that at this stage of the proceeding the nrajonty's view of Objec- tion I is controlling. 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sessions immediately." Since on or about January 3, 1978, and at all times thereafter, Respondent has re- fused, and is continuing to refuse, to recognize and bargain with the Union as the exclusive bargaining representative of the unit employees. Respondent seeks to justify its refusal to recognize and deal with the Union on the ground, that "the Board made a serious error [in the representation proceeding] depriving Precision Fabricators, Inc., and its employees of rights guaranteed by law .... " More specifically, it contends that the Regional Di- rector and Board improperly overruled its objections without holding a hearing on the alleged factual is- sues raised and that they further erred in applying the principles enunciated in the Board's decision in Shopping Kart, supra, in overruling its Objections 1, 2, and 3 (which dealt with alleged misrepresentations by the Union). In view of these asserted errors it con- tends, in effect, that the Union was not, though certi- fied, the lawful bargaining representative of unit em- ployees. The issues which Respondent seeks to raise at this time were raised in Respondent's exceptions to the Regional Director's report and necessarily found to be without merit in the Board's decision adopting the Regional Director's findings and recommendations that Respondent's objections to the election be over- ruled and the Union certified. It thus appears that Respondent is attempting to raise again issues which were specifically considered and resolved by the Board in the underlying representation case. 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. 4 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: 4See 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). FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a New York corporation with its principal office and place of business at 200 Broadway, Gar- den City Park, New York, where it is engaged in the manufracture of sheet metal components on a con- tract manufacturing basis. In the past year, it pur- chased goods and materials valued in excess of $50,000 directly from firms outside the State of New York, which goods and materials were delivered to its New York location. 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. II. THE LABOR ORGANIZATION INVOLVED Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. 111. 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, maintenance, shipping and re- ceiving employees and truckdrivers employed by the Employer at 200 Broadway, Garden City Park, New York, excluding office clerical em- ployees, technical and professional employees, sales personnel, watchmen, guards, all other em- ployees, and supervisors as defined in the Act. 2. The certification On March 11, 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 29, 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 December 22, 1977, and the Union 416 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 December 27, 1977, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about January 3, 1978, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 3, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that, by such refusal, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTI('ES PON COMMERCEF The activities of Respondent set forth in section 111, 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. TIF RFMEI)Y Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (I) 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 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 Companv, Inc., 136 NLRB 785 (1962); Commerce Companr, d, h'a La- mar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d PRECISION FABRICATORS, INC. 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: CONCLU ISIONS OF LAW I. Precision Fabricators, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. 3. All production, maintenance, shipping and re- ceiving employees and truckdrivers employed by the Employer at 200 Broadway, Garden City Park, New York, excluding office clerical employees, technical and professional employees, sales personnel, watch- men, guards, all other employees, 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 December 22, 1977, the above-named la- bor organization has been, and now is, the certified and exclusive representative of all 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 January 3, 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)( I) 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, Precision Fabricators, Inc., Garden City Park, New 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD York, 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 Shopmen's Local Union No. 455, International Association of Bridge, Struc- tural and Ornamental Ironworkers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production, maintenance, shipping and re- ceiving employees and truckdrivers employed by the Employer at 200 Broadway, Garden City Park, New York, excluding office clerical em- ployees, technical and professional employees, sales personnel, watchmen, guards, all other em- ployees, 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 its Garden City Park, New York, plant, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Re- gional Director for Region 29, after being duly signed by Respondent's representative, shall be post- ed 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. 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." 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 Direction for Region 29, 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 Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamen- tal Ironworkers, AFL-CIO, as the exclusive rep- resentative 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, maintenance, shipping and receiving employees and truckdrivers em- ployed by the Employer at 200 Broadway, Garden City Park, New York, excluding of.. fice clerical employees, technical and profes- sional employees, sales personnel, watchmen, guards, all other employees, and supervisors as defined in the Act. PRECISION FABRICATORS. INC. 418