Lee-Rowan Co.

LEE-ROWAN COMPANY 187 in conformity with Section 8(a)(3) of the Act. We will not discriminate against any employee because. of membership in or activity on behalf of any such labor organization. KAUFMAN-STRAUS COMPANY DOING BUSINESS AS KAUFMAN'S OF KENTUCKY, Employer. Dated------------------- By-------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, 4th and Vine Streets, Cincinnati 2, Ohio, Telephone Number, Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Lee-Rowan Company and International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Lodge 1012, AFL-CIO. Case No. 14-CA-2653. May 16, 1962 DECISION AND ORDER On March 5, 1962, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled, proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board I has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was, committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner 2 ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order. 'Pursuant to the provisions of Section 3(b) of the Act the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Panning]. 2 In finding in the representation proceeding that the line leaders were supervisors, the Board did not treat the determination made in Case No. 14-CA-2255, 129 NLRB 980, as to the status of the line leaders as rea judicata on that issue. The Board did consider the earlier determination but then stated: ". . . the record in the instant case indicates that the line leaders continue to possess supervisory duties and responsibilities previously found by the Board." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136; 73 Stat. 519), was heard before George A. Downing, 137 NLRB No. 16. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the duly designated Trial Examiner, in St. Louis, Missouri, on January 22, 1962, -,pursuant to due notice. The complaint, issued on December 4, 1961, by the General -Counsel of the National Labor Relations Board, based on a charge dated Novem- ber 14, 1961, alleged that Respondent had engaged in unfair labor practices pro- scribed by Section 8(a)(5) of the Act by refusing on or about November 3, 1961, and since, to bargain with the Union as the duly certified and exclusive collective- bargaining representative of Respondent's employees in an appropriate unit. Re- spondent answered, admitting that it had refused to bargain with the Union, but averred that its refusal was justified because the purported certification of the Union was unlawful and ineffective in that the Board unlawfully excluded certain employees from the unit. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED I find on facts alleged in the complaint and admitted by answer that Respondent, a Missouri corporation engaged at St. Louis in the manufacture of metal closet fix- tures and drying forms, is engaged in interstate commerce within the meaning of the Act (by direct sales and shipments to extrastate points valued in excess of $50,000 annually), and that the Union is a labor organization within the meaning of Section 2 (5) of the Act. H. THE UNFAIR LABOR PRACTICES The complaint alleges, the answer admits, and I find that all production and mainte-, nance employees of Respondent employed at its St. Louis establishment exclusive of office clericals, professionals, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act. See Decision and Direction of Election, Case No. 14-RC-3989, issued July 7, 1961 (not published in NLRB volumes). I find further, on Respondent's admissions, on stipulations of the parties, and on the record in the foregoing representation proceeding of which I take official notice,' that following an election held on August 7, 1961, the Board issued its Supplemental Decision and Certification of Representatives on November 3, 1961, certifying that the Union had been designated and selected by a majority of the employees in the aforesaid appropriate unit and certifying the Union as the exclusive representative of all the employees in such unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. On or about November 6, 1961, the Union requested Respondent to bargain with it for the purpose of negotiating a working agreement covering the said employees. Promptly thereafter Respondent notified the Union that it found it necessary to commit a technical failure to bargain in order that the courts might review the question whether the exclusion by the Board of certain employees from the unit was proper. Respondent has since continued its refusal to bargain with the Union so that it can obtain judicial review (via the present proceedings under Section 10(b)) of a claimed invalidity in the Board's certification of the Union in Case No. 14-RC-3989, supra. Respondent's contention is that the certification was unlawful and ineffective for the reason that the Board unlawfully excluded from the unit and sustained challenges to ballots of seven line leaders and an inspector although the line leaders and the inspector were employees as defined in the Act and entitled to be included in the unit and were not supervisors as defined in the Act. Conceding that the issue can- not properly be relitigated herein and that new evidence would be inadmissible, Re- spondent argues that the undisputed evidence in the representation proceeding, proper, supported not the Board's conclusion but Respondent's contrary contention that the disputed individuals were employees, not supervisors. Reaching then the heart of its position, Respondent argues that the Board did not in fact base its con- clusions on the unchallenged evidence in the representation proceeding but that it improperly and unlawfully gave conclusive effect to its previous findings concerning the status of the disputed individuals in an earlier unfair labor practice case against it (Case No. 14-CA-2255, 129 NLRB 980) 2 'Pursuant to Section 10(d) the record in that proceeding will become a part of the entire record to be filed with the court of appeals in enforcement or review proceedings under Section 10(e) and (f), respectively. 2 At the conclusion of the representation hearing the Union's representative had moved that the Board take official notice of the findings in that case. Respondent not only LEE-ROWAN COMPANY 189 As argued at the present hearing, Respondent's contention was that the status of the line leaders as supervisors was only a "collateral and evidentiary issue" in the earlier unfair labor practice case; that the issue was not so litigated as "to make it conclusive"; and that subsequently in its Decision and Direction of Election in the representation proceeding, the Board "erroneously treated the decision in the unfair labor practice case as res judicata, that it went outside of the record in the certification case, to look at that case." In its brief, however, the thread of the argument runs somewhat differently, i.e., that the finding in the unfair labor practice case that the line leaders were supervisors was not essential to the decision in that case, and therefore, whether those findings were correct or not, the Board could give them no conclusive effect, nor, indeed, any weight at all in the later representation proceeding. Respondent's contentions require a brief review of the earlier proceedings. The Board's findings in the representation proceeding were stated as follows: The parties agree as to the composition of the unit, except that the Employer would include the seven line leaders and the inspector, while the Petitioner would exclude them on the ground that they are supervisors within the meaning of the Act. The Employer employs 139 individuals in production and main- tenance work, including the individuals whose unit placement is here involved. The production employees are divided into 7 groups with approximately 20 employees in each. Each line leader is in charge of a group. Line leaders are directly responsible to a shift foreman who in turn is supervised by the pro- duction foreman. In a recent case involving this Employer (129 NLRB 980), the Board found that the line leaders were supervisors. This finding was based on the facts that line leaders received 15 cents per hour more than the production employees; attended monthly meetings in the company of the fore- men at which such matters as wages, production, and general working condi- tions were discussed; were given authority to and were expected to maintain discipline in their respective groups, and were authorized to recommend merit increases for production employees; and, were responsible for the performance of work schedules and the assignment of work to employees. In this proceed- ing, the Employer does not contend that the duties and responsibilities of line leaders have changed since the Board's earlier determination, but urges that the record in the earlier case was incomplete as to those duties and responsi- bilities. However, the record in the instant case indicates that the line leaders continue to possess supervisory duties and responsibilities previously found by the Board. Accordingly, we find that the line leaders are supervisors within the meaning of the Act and we exclude them. See Knights of Columbus, 129 NLRB 76. With respect to the inspector, the record shows that she spends at least 20 percent of her time performing the duties of line leaders. In view of this fact, we find that the inspector is a supervisor and we exclude her. See Swift & Company, 129 NLRB 1391. The Regional Director later issued his report on the challenged ballots cast by the individuals in question, stating in part: Investigation discloses that the duties, responsibilities and authority of the line leaders and the inspector have not changed between the date of the hearing and the date of the election, and that the status of these individuals at the time of the election was the same as it had been for some substantial period of time. Then, after reviewing at length the employer's position, the report concluded that the employer had raised no issues not previously considered by the Board and recommended that the challenges be sustained. On Respondent's exceptions, the Board adopted the Regional Director's recommendations and sustained the chal- lenges, stating that, "We find that the Employer's exceptions do not raise material and substantial issues which would warrant reversal of the Regional Director's findings and recommendations." We now reach the question whether supervisory status was effectively litigated in the earlier unfair labor practice case (119 NLRB 980) and whether the Board could properly note and give weight to its findings therein. Respondent admits in its brief to the present Trial Examiner that the complaint in the earlier case alleged, and that its answer denied, that certain line leaders were supervisors within the meaning of the Act. The Trial Examiner in that case specifically noted in his report that one of the issues was whether the line leaders were supervisors, though he termed it a subordinate one (119 NLRB 980, 984). Furthermore, be then proceeded to entered no objection, but urged that the Board should read the entire record, expressing confidence that it would "come up with a different result even on the old record." 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make detailed findings on the issue (id. at pp. 984-985), concluding with the follow- ing findings: It is clear from all the evidence in the case that aforesaid line leaders in Re- spondent's plant are the representatives of management rather than production employees; and I find that they are supervisors within the meaning of Section 2 (11) of the Act. The Trial Examiner thereupon found Respondent to be responsible for certain conduct which the line leaders had engaged in. On Respondent's exceptions, the Board adopted without modification the Trial Examiner's finding as to supervisory status. I therefore conclude and find, contrary to Respondent's contentions, that the :status of the line leaders as supervisors was put directly in issue by the pleadings ;in the earlier case, which involved the same parties as the representation proceeding (as well as the same parties in the present case); that the issue was fully litigated; that the Trial Examiner's finding thereon formed the basis of his subsequent finding that Respondent had engaged, through the line leaders, in certain unfair labor prac- tices; and that the Board could properly take official notice in the representation proceeding of its findings in the earlier case. N.L.R.B. v. M. L. Townsend, 185 F. 2d 378, 380-381 (C.A. 9); and see footnote 2, supra. I therefore conclude and find that Respondent, on and after November 6, 1961, -refused to bargain with the Union within the meaning of Section 8(a) (5) of the Act. in. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases as provided in the Recom- mended Order below, which is found to be necessary to remedy and remove the -effects of the unfair labor practices and to effectuate the policies of the Act. The unfair labor practices in this case can be fully remedied by requiring Respondent, Ripon request, to bargain collectively with the Union. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees of Respondent employed at its St. Louis establishment, exclusive of all office clericals, professionals, guards, and super- visors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2. The Union has been at all times since November 3, 1961, the exclusive rep- resentative of all employees in the aforesaid unit for the purpose of collective bargain- ing within the meaning of Section 9(a). 3. By refusing to bargain with the Union since November 6, 1961, Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5). 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, it is recommended that the Respondent, Lee-Rowan Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with International Broth- erhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Lodge 1012, AFL-CIO, as the exclusive representative of its employees in the unit herein found appropriate with respect to wages, rates of pay, hours of employment, or other conditions of employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Bargain collectively, upon request, with International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Lodge 1012, AFL-CIO, as the exclusive representative of its employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post in its plant at St. Louis, Missouri, copies of the notice attached hereto marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional 3In the event that this Recommended Order be adopted by the Board, the words "A ,Decision and Order" shall be substituted for the words "The Recommendations of a Trial FIORE BROTHERS OIL CO., INC . 191 Director for the Fourteenth Region, shall, after being duly signed by Respondent's representative, be posted 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 to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fourteenth Region, in writing, within 20 days from the date of receipt of this Intermediate Report, what steps Respondent had taken to comply herewith .4 Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 'In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL bargain collectively on request with International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths, Forgers and Helpers, Lodge 1012, AFL-CIO, as the exclusive representative of all our employees in the following appropriate collective-bargaining unit, and , if an understanding is reached, em- body such understanding in a signed agreement . The appropriate collective- bargaining unit is: All production and maintenance employees employed at our St. Louis establishment, exclusive of office clericals, professionals, guards, and super- visors as defined in the Act. All our employees are free to become or remain , or to refrain from becoming or remaining, members of the above -named or any other labor oganization. LEE-ROWAN COMPANY, Employer. Dated---- --------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 4459 Federal Building, 1520 Market Street, St. Louis, Missouri , Telephone Number, Main 1-8100, Extension 2142, if they have any question concerning this notice or com- pliance with its provisions. Fiore Brothers Oil Co., Inc. and United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters District, AFL-CIO Amalgamated Union Local 355 and United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lake and Inland Waters Dis- trict, AFL-CIO. Cases Nos. 9-CA-8146 and 2-CB-3234. May 1811962 DECISION AND ORDER On February 15, 1962, Trial Examiner Thomas S. Wilson issued his Intermediate Report herein, finding that the Respondents engaged in 137 NLRB No.19.