Crown Aluminum Industries Corp.

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony Ray acknowledged that on this last occasion Greene had asked him for a tele- phone number where Respondent Company could get in touch with them for future work and that Ray failed to furnish the same. It is acknowledged by all that Charles never applied for work with Respondent Company thereafter 15 and that Ray only applied the one time when Respondent Company was not hiring. I am of the opinion that Respondent Company did not discharge either Ray or Charles but was, as stated in open court by Respondent's attorney at the hearing, ready and willing to employ either or both upon application. Under all the facts in the instant case, I will recommend that this complaint be dis- missed in its entirety. On the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. Roadway Express, Inc., is engaged in commerce within the meaning of Section 2(7) of the Act. Respondents have not engaged in any unfair labor practices within the meaning of Section 8(a) (1) or (3) of the Act. RECOMMENDED ORDER I recommend that the complaint in the instant matter be dismissed in its entirety. 15 Nor am I convinced that any normally prudent man of less size than Markey would have done so. Crown Aluminum Industries Corporation and Sheet Metal Workers International Association , Local Union No. 159, AFL- CIO. Case No. 11-CA-?439. December 14, 1964 DECISION AND ORDER On October 15, 1964, Trial Examiner Lee J. Best issued his Deci- sion 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 attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 1 The Respondent has requested oral argument. This request is hereby denied because the record, exceptions , and briefs adequately present the issues and positions of the parties. 150 NLRB No. 8. CROWN ALUMINUM INDUSTRIES CORPORATION ORDER 59 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, and orders that Respondent Crown Aluminum Industries Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151 , at seq. (herein called the Act ), was heard pursuant to notice at Roxboro, North Carolina, on July 30, 1964, with all parties present before Trial Examiner Lee J . Best. Based upon a charge filed on May 22, 1964, by Sheet Metal Workers International Association , Local Union No. 159 , AFL-CIO, herein called the Union or Charging Party, the General Counsel of the National Labor Re- lations Board on June 10, 1964, issued a complaint against Crown Aluminum In- dustries Corporation, herein called the Employer or Respondent , alleging in substance that said Respondent has at all times on and since May 18, 1964, refused to bargain collectively with the Union as the duly certified and exclusive bargaining representa- tive of its employees in the appropriate unit, thereby engaging in unfair labor prac- tices within the meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the Act. With respect to the alleged unfair labor practices, the Respondent filed an answer admitting its refusal to bargain with the Union, but denies that such refusal consti- tutes any violation of the Act by reason of arbitrary and capricious conduct on the part of the Board's Regional Director in excluding approximately 13 group leaders from the appropriate unit prior to an election held on July 16, 1963, thereafter setting said election aside because aforesaid group leaders appeared at the polls on July 16, 1963, demanding the right to vote in said election; and thereafter illegally ordered a reelection scheduled for February 6, 1964 , as a result of which the Union was certi- fied as bargaining representative on April 30, 1964. Upon the entire record in the case, and after due consideration of briefs filed by counsel for the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. BUSINESS OF RESPONDENT Crown Aluminum Industries Corporation is, and has been at all times material herein, a corporation organized and existing under and by virtue of the laws of the State of Delaware, having its plant at Roxboro, North Carolina, where it is engaged in the manufacture and sale of aluminum siding and accessories , and rain-carrying equipment. During the past 12 months, which period is representative of all times material herein, the Respondent purchased raw materials valued in excess of $1,000,000, causing same to be shipped directly to Roxboro, North Carolina, from sources and suppliers outside said State; and during the same period sold and shipped processed products having a value in excess of $1,000,000 to points and places out- side the State of North Carolina. Consequently, I find, and it is admitted, that Re- spondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. LABOR ORGANIZATION INVOLVED Sheet Metal Workers International Association, Local Union No. 159, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act, existing in whole or part for the purpose of representing employees in dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment , and conditions of work. III. THE UNFAIR LABOR PRACTICES A. Background information On or about November 29, 1961 , Sheet Metal Workers International Association, Local Union No. 159, AFL-CIO, filed a representation petition in Case No. 11-RC- 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1564. After an investigative hearing, the Board found that certain group leaders of the Respondent were not supervisors within the meaning of the Act and should be included in the appropriate unit. An election was held pursuant to that decision on January 2, 1962, which resulted in a majority of the ballots being cast against the petitioning Union. After expiration of a year the petitioning Union filed another representation peti- tion, and a completely new investigative hearing was conducted on June 5, 1963, in Case No. 11-RC-1814 . Based upon the petition and record in this latter investiga- tion, the Board's Regional Director for Region 11 on June 14, 1963, issued his Deci- sion and Direction of Election excluding group leaders from the appropriate unit, citing in footnote 3 that the Employer's operations have been considerably expanded since the previous Decision and Direction of Election , which issued December 15, 1961. (Case No. 11-RC-1564 ; not reported in Boaid volumes.) Thereupon, the Employer requested a review by the Board of its Regional Director 's Decision and Direction of Election, especially with respect to the exclusion of group leaders from the appropriate unit. By telegraphic order dated July 2, 1963, the Employer 's request for review of the Regional Director 's Decision and Direction of Election was denied by the Board, because no substantial issues warranting review had been raised thereby. Thereupon, an election by secret ballot was conducted on July 17, 1963, under the supervision of the aforesaid Regional Director, as a result of which the petitioning Union was the loser by a substantial majority. Upon objections duly filed by the Petitioner, the aforesaid Regional Director on October 14, 1963, recommended that the election of July 17, 1963, be set aside upon his finding that the Employer , in pre- paring the eligibility list for this election, had placed the names of its excluded group leaders on the list, thereby causing its supervisors within the meaning of the Act to intermingle at the polls with eligible voters, and thereby interfering with the fair and proper conduct of this election. The Employer thereafter filed exceptions to the recommendations of the Regional Director, as set forth in his report on objections . Thereupon, the Board by Supple- mental Decision , Order, and Direction of Second Election, dated January 6, 1964, adopted the Regional Director's findings and recommendations, order that the elec- tion of July 17, 1963, be set aside, and directed that a new election be held . Pursuant thereto, a second election in Case No. 11-RC-1814 was held on February 6, 1964, wherein the petitioning Union received a majority of the votes cast. Having deter- mined the challenged ballots, the Regional Director overruled all objections filed by the Employer, and on April 30, 1964, issued a certification of representative certify- ing that Sheet Metal Workers International Association , Local Union No. 159, AFL- CIO, has been designated and selected by a majority of the employees as their repre- sentative in the appropriate unit consisting of: All production and maintenance employees at the Employer 's Roxboro, North Carolina, plant, excluding office clerical employees , professional employees , truck- drivers, group leaders, guards, and supervisors as defined in the Act. Following the foregoing certification of representative , the Union dispatched a tele- gram to the Respondent (Employer ) requesting that a meeting be held at the earliest possible time to discuss terms of wages , hours of work, and other conditions of em- ployment. In response to this telegraphic request by the Union, the Respondent re- plied by letter of May 18, 1964 , as follows: In re: Case No. 11-RC-1814 Dear Sir: Referring to your recent telegram of May 10, 1964, please be ad- vised that Crown Aluminum Industries Corp. respectfully declines your invita- tion to meet with you to discuss wages, terms, conditions of employment, etc., for the following reason: (a) The election held on February 6, 1964 , was illegal and unlawful. Very truly yours, CROWN ALUMINUM INDUSTRIES CORP. By N. H. Leventon General Counsel NHL: sj B. Issues involved Having admitted its refusal to bargain with the certified bargaining representative of its employees in the unit found to be appropriate in Case No . 11-RC-1814 and CROWN ALUMINUM INDUSTRIES CORPORATION 61 the ensuing certification of representative dated April 30, 1964, the Respondent now asserts that the election of February 6, 1964, was illegal and unlawful. This election was held under supervision of the Regional Director for Region 11 pursuant to Sup- plemental Decision, Order, and Direction of Second Election signed by the five mem- bers of,the Board on•January 6, 1964, ordering that a prior election conducted herein be set aside, and directing that a new election be held. On February 12, 1964, the 'Employer filed timely objections to conduct affecting the results of this election. After, an extended investigation, the Regional Director found that the objections of Respondent, raised' no material or substantial issues and specifically overruled each objection. No exceptions thereto were filed by Respondent and the Board was not requested to review the Second Supplemental Decision and Direction issued by the Regional Director on April 2, 1964. Consequently all issues pertaining to the legality of the election of February 6, 1964, have been determined insofar as the National Labor Relations Board is concerned.. The Respondent also seeks to contest herein the propriety of the unit found by the Regional Director.to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. It should be noted that the Board on July 2, 1963, denied Respondent's request for review of Regional Director's Decision and Direction of Election prior to the election of July 17, 1964, in which the identical issue was the exclusion of group leaders from the appropriate unit. The Board held at that time that the request of Respondent for review raised no substantial issues warranting review. Consequently, all issues with respect to the validity of the appro- priate unit have been determined insofar as the National Labor Relations Board is concerned. I find .no arbitrary or capricious conduct -herein by either Regional Di- rector or the Board. CONCLUDING FINDINGS Testimony proffered by the Respondent at the hearing before the Trial Examiner was admittedly available when issues arising in the representation case were con- sidered by the Board. There is no new issue here, and the admission of such testi- mony would constitute a relitigation of matters already heard and determined by the Board. It is a well-settled doctrine that the issues litigated in the representation pro- ceeding are not subject to relitigation in the complaint proceeding predicated upon it.' Such evidence was excluded, but Respondent was permitted to make offers of proof for the record. I deem the findings of the Board and the certification of rep- resentative by the Regional Director in the representation proceeding (Case No. 11-RC-1814) to be conclusive and binding upon the Trial Examiner. I find, there- fore, as a formal conclusion of law that the Union was duly designated and now is by reason of Board certification, the exclusive bargaining representative for all em- ployees in the appropriate unit, within the meaning of Section 9(a) of the Act. I fur- ther find that the Respondent, by its admitted refusal to bargain with the Union pur- suant to the Board's certification of representative, has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1 ) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions, and upon the entire record in this case and in the representation proceedings (Case No. 11-RC-1814), I hereby recommend that Respondent, Crown Aluminum Industries Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Sheet Metal Workers International Asso- ciation, Local Union No. 159, AFL-CIO, as the duly certified exclusive bargaining representative of its employees in the following unit: All production and maintenance employees at the Employer's Roxboro, North Carolina, plant, excluding office clerical employees, professional employees, truck- drivers, group leaders, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of Sheet Metal Workers International Association, Local Union No. 159, AFL-CIO, to negotiate for or represent all employees in the 1 Pittsburgh Plate Glass Company v. N.L.R B., 313 U S. 146, 157-158; N.L.R.B. v. West Kentucky Coal Company, 152 F. 2d 198, 200-201 (C.A. 6), cert. denied 328 U.S 866; Atkinson Dredging Company, 141 NLRB 1316, and cases cited at footnote 3. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aforesaid appropriate unit as their exclusive bargaining representative for the pur- poses of collective bargaining. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with Sheet Metal Workers International Association, Local Union No. 159, AFL-CIO, as the certified exclusive bargaining representative of all employees in the unit described above, with respect to griev- ances, labor disputes, rates of pay, wages, hours of employment, and other condi- tions of work, and if an agreement is reached, embody it in a signed contract. (b) Post at its factory and principal office in Roxboro, North Carolina, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 11, shall, after being duly signed by the Respond- ent's representative, be posted by it immediately upon receipt thereof, and 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, Winston-Salem, North Carolina, in writing, within 20 days from the receipt of this Recommended Order, what steps Respondent has taken to comply therewith .3 2 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial 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 "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 81n the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 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 our employees that: WE WILL bargain collectively, upon request, with Sheet Metal Workers Inter- national Association, Local Union No. 159, AFL-CIO, as the exclusive bargain- ing representative of all employees in the bargaining unit described below con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of work, and if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All production and maintenance employees at the Employer's Roxboro, North Carolina, plant, excluding office clerical employees, professional em- ployees, truckdrivers, group leaders, guards, and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the above-named Union to negoti- ate for or represent all employees in said appropriate unit as their certified ex- clusive bargaining representative for the purposes of collective bargaining. CROWN ALUMINUM INDUSTRIES CORPORATION, Employer. Dated------------------- By--------------------------- (Representative ) -----(Title) ----- This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone No. 724-8356, if they have any questions concerning this notice or compliance with its provisions.