Steele & Associates, Inc.

STEELE & ASSOCIATES, INC. 759 Steele & Associates, Inc. and International Associa- tion of Bridge, Structural & Ornamental Iron Workers, Shopmen's Local Union No. 527, AFL-CIO. Case 6-CA-4023 December 8, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon a charge filed by International Association of Bridge, Structural & Ornamental Iron Workers, Shopmen's Local Union No. 527, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Re- gional Director for Region 6, issued a complaint dated September 13, 1967, against Steele & As- sociates, Inc., herein called Respondent, alleging that the Respondent had engaged in and was engag- ing in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Co- pies of the charge and of the complaint and notice of the hearing were duly served upon the Respond- ent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that on July 26, 1967, the Regional Director for Region 6 certified the Union as the collective-bargaining agent of the Respondent's employees in the unit found appro- priate,) and that, since on or about July 26, 1967, the Respondent has failed or refused to recognize and bargain with the Union as the exclusive bar- gaining agent of the employees at the Respondent's McKeesport plant, although the Union has requested and is requesting it to do so. On Sep- tember 15, 1967, the Respondent filed its answer, denying the commission of the unfair labor prac- tices alleged and presenting an affirmative defense to the allegations. On October 2, 1967, the General Counsel filed with the Board a motion for summary judgment, submitting, in effect, that the Respondent's answer, including its affirmative defenses, raised no issues which have not been previously litigated in the prior representation case (Case 6-RC-4447) and, there- fore, an order should be issued finding all allega- tions in the complaint to be true and granting his motion for summary judgment. The General Coun- sel further moved that prior to, and without the necessity of, a hearing, the Board issue a decision against the Respondent containing findings of fact and conclusions of law in accordance with the al- legations of the complaint, and an order remedying the unfair labor practices so found. Thereafter, on October 3, 1967, the Board issued an order trans- ferring the proceeding to the Board and a notice to show cause, on or before October 16, 1967, why the General Counsel's motion for summary judgment should not be granted. On November 13, 1967, the Respondent filed an opposition to General Counsel's motion for summary judgment. 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 powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary Judgment In its opposition to the General Counsel's motion for summary judgment, the Respondent contends, in substance, that an outstanding 10(k) determina- tion of dispute in favor of employees represented by another labor organization2 constitutes a bar to the certification of the Union and that the Board's deni- al of its request for review of the Regional Director's Decision and Direction of Election did not constitute an adjudication of that issue as litigated in the representation case.3 We find these contentions to be without merit. Respondent, through its affirmative defenses, is merely seeking to relitigate matters decided by the Board in the prior representation proceeding. The record before us establishes that on June 19, 1967, the Regional Director issued his Decision and Direction of Election, finding, inter alia, that the aforementioned work assignment of the Board, arising out of a jurisdictional controversy in the State of New York, did not bar a question concern- ing representation with respect to, Respondent's employees at McKeesport, Pennsylvania. Thereafter, the Employer filed with the Board a request for review of the Regional Director's Deci- sion, which was denied by the Board on July 5, 1967. On July 18, 1967, a secret-ballot election was conducted among employees at the Respondent's McKeesport plant, under the supervision of the Re- gional Director for Region 6, in which the Union received a majority of the valid votes cast. Thereafter, on July 26, the Regional Director is- sued a certification of representative to the Union as the exclusive bargaining representative of the Employer's employees. On or about July 26, the Union requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of the employees. In response to this request, the Respond- ' Certification of representative issued July 26, 1967, in Case 6-RC-4447 (not published in NLRB volumes). 2 Structural Steel and Bridge Painters of Greater New York, Local 806, AFL-CIO (Steele & Associates, Inc.), 150 NLRB 1672. 3 See, however, Sec. 102 67(b), et seq., of the Board Rules and Regula- tions, Series 8, as amended. 168 NLRB No. 108 760 DECISIONS OF NATIONAL ent, by a letter dated September 8, 1967, advised that it would not negotiate with the Union because it considered the Board's certification of the Union to be erroneous. We find no basis for entertaining the Respond- ent's contention that the Board's certification of the Union was inappropriate. It is well established that, in the absence of newly discovered or previ- ously unavailable evidence, a respondent is not en- titled to relitigate in an 8(a)(5) proceeding issues which were or could have been raised in a related representation proceeding.4 As all material issues have previously been de- cided by the Board, or stand admitted by the failure of the Respondent to properly controvert the aver- ments of the General Counsel's motion, there are no matters requiring a hearing before a Trial Ex- aminer. Accordingly, General Counsel's motion for summary judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is, and has been at all times material herein, a corporation duly organized and existing under the laws of the State of Georgia and is engaged in business as corrosion engineers and contractors, specializing in the field of protective coating applications. It operates in various States of the United States and also has a plant located in McKeesport, Pennsylvania, involved in this proceeding, where it is engaged in the fabrication and processing of steel beams and other items. Dur- ing the past year, Respondent's purchases of materials, which it received directly from outside the State in which it performed work, were in ex- cess of $100,000. During the past year, Respondent sold products which it shipped directly from its plant within the Commonwealth of Pennsylvania to points outside that Commonwealth valued in excess of $50,000. We find, on the basis of the foregoing, that the Respondent 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.5 II. THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural & Ornamental Iron Workers, Shopmen's Local Union No. 527, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Pittsburgh Plate Glass Company v N L R.B , 313 U.S. 146. We note that the Board asserted jurisdiction over the Respondent in ajurisdictional dispute proceeding . See Structural Steel and Bridge Pain- LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit At all times material herein, the following em- ployees of the Respondent have constituted a unit appropriate for collective bargaining within the meaning of the Act: All production and maintenance employees at the Employer's McKeesport, Pennsylvania, plant, ex- cluding all other employees, welding subcontrac- tors' employees, irregular part-time employees, of- fice clerical employees and guards, professional em- ployees, and supervisors as defined in the Act. 2. The certification On July 18, 1967, a majority of the emloyees of the Respondent in said unit, in a secret election con- ducted under the supervision of the Regional Director for Region 6, designated the Union as their representative for the purpose of collective bargaining with the Respondent. On July 26, 1967, the Regional Director for Region 6 certified the Union as the collective-bargaining representative of the employees in said unit, and the Union con- tinues to be such representative. B. The Request to Bargain and the Respondent's Refusal Commencing on or about July 26, 1967, and con- tinuing to date, the Union has requested and is requesting the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above- described unit. Since on or about July 26, 1967, and continuing to date, the Respondent did refuse, and continues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in said unit. We find that the Union has been at all times since July 18, 1967, and now is the exclusive bargaining representative of all the employees in the above- described unit, within the meaning of Section 9(a) of the Act. We further find that the Respondent has, since on or about July 26, 1967, refused to bargain collectively with the Union as the exclusive bar- gaining representative of its employees in the ap- propriate unit, and that, by such refusal, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. ters of Greater New York, Local 806, AFL-CIO (Steele & Associates, Inc.), supra STEELE & ASSOCIATES. INC. 761 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, in- timate, 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. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bar- gain 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. CONCLUSIONS OF LAW 1. Steele & Associates, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Bridge, Struc- tural & Ornamental Iron Workers, Shopmen's Local Union No. 527, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at the Employer's McKeesport, Pennsyl- vania, plant, excluding all other employees, welding subcontractors' employees, irregular part-time em- ployees, office clerical employees and guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 26, 1967, the above-named labor 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 July 26, 1967, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of the Respondent in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby en- gaged 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 practices affecting commerce within the meaning 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 Relations Board hereby orders that the Respond- ent, Steele & Associates, Inc., McKeesport, Pennsylvania, 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 Associa- tion of Bridge, Structural & Ornamental Iron Work- ers, Shopmen's Local Union No. 527, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees em- ployed at the Employer's McKeesport, Pennsyl- vania, plant, excluding all other employees, welding subcontractors' employees, irregular part-time em- ployees, office clerical employees and guards, professional employees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exer- cise of the rights guaranteed to them by 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 un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its McKeesport, Pennsylvania, place of business, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms pro- vided by the Regional Director for Region 6, after being duly signed by the Respondent's representa- tive, shall be posted by the Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees 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. '' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 6, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with International Association of Bridge, Structural & Ornamental Iron Workers, Shop- men's Local Union No. 527, 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 em- ployees 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 represent- ative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance em- ployees employed at the Employer's McKeesport, Pennsylvania, plant, exclud- ing all other employees, welding subcon- tractors' employees, irregular part-time employees, office clerical employees and guards, professional employees, and su- pervisors as defined in the Act. Dated By STEELE & ASSOCIATES, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 644-2977.