Duncan Foundry & Machine Works, Inc.

16 DUNCAN FOUNDRY & MACHINE WORKS Duncan Foundry & Machine Works, Inc. and United Steelworkers of America, AFL-CIO. Case 14-CA- 5216 August 20, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On February 10, 1970, Trial Examiner George A. Downing issued his Decision 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 Decision. Thereafter, the Respondent filed exceptions to the Trial Examin- er's Decision, together with a supporting brief, and the Charging Party filed a brief in support of the Trial Examiner's Decision and in opposition to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner .2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders ' In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit See Mar-Jac Poultry Company, Inc., 136 NLRB 785, Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600 (C A. 5), cert. denied 379 US 817, Burnett Construction Company, 149 NLRB 1419, 1421, enfd 350 F2d 57 (C A 10) ' The Board has reviewed the record in Cases 14-RC-5787 and 14- RM-327, and finds, contrary to the Respondent's contention, that the Regional Director's Supplemental Decision overruling all objections to the election, and 180 of the 186 challenged ballots, without a hearing, was correct that the Respondent, Duncan Foundry & Machine Works, Inc., Alton, Illinois, its officers, agents, succes- sors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE A. DOWNING, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was heard at St. Louis, Missouri, on December 9, 1969. The complaint, which issued on October 7, 1969, on a charge filed and served on August 1, alleged in brief that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) of the Act by refusing to bargain with the Charging Union as the certified representative in a unit of Respondent's employees on and after June 11, 1969, and by refusing to pay to returning economic strikers the same vacation pay as non- strikers. Respondent by answer denied the unfair labor practices as alleged. I hereby grant the General Counsel's motion (unopposed) to correct the transcript herein by changing the word "election" to "legal action" at page 15, line 15. I also grant Respondent's unopposed motion to complete the record herein by incorporating some 24 documents as a part of General Counsel's Exhibit 5. Upon the entire record in the case and from my observa- tion of the witnesses I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION INVOLVED I find on admitted allegations of the complaint that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Charging Union is a labor organization within the meaning of Section 2(5). See also prior findings to that effect in Duncan Foundry & Machine Works, Inc., 176 NLRB No. 31. II. THE UNFAIR LABOR PRACTICES A. Introduction and Issues Following an earlier certification in 1966 and unsuccessful negotiations for a contract, Steelworkers called a strike on January 29, 1967, which continued until January 31, 1968. Representation proceedings which began on September 13, 1967, in Cases 14-RC-5787 and 14-RM-327 (officially noted herein) resulted ultimately in a new certification of Steelworkers by the Regional Director on December 4, 1968. Admitting by answer that it refused to bargain as alleged in the complaint, Respondent averred that the certification was invalid because the Regional Director failed to conduct a proper investigation of the status of some 160-odd strikers whose ballots were challenged in the election of January 26-28, 1968, refused to permit a hearing on said challenges, and erroneously overruled them. 185 NLRB No. 2 DUNCAN FOUNDRY & MACHINE WORKS 17 The 8(a)(3) allegations of discrimination in vacation pay to recalled economic strikers involved simply a continua- tion of the same practice which the Board found to be unlawful in an earlier unfair labor practice proceeding in Case 14-CA-4608, 176 NLRB No. 31, supra (decided May 29, 1969), also officially noted herein. B The 8(a)(5) Allegations Respondent's defense in this case is a frontal attack on the Regional Director's rulings on many of the challenged ballots in the representation proceedings, Respondent's attempts to review which, as later noted, the Board repeated- ly rejected. Thus, Respondent's attorney acknowledged at the hearing that his position on the challenged ballots and the objections was the same as it was before the Regional Director, candidly admitted he was attempting to obtain review of the Regional Director's decision despite the Board's denials of his earlier requests, and conceded further that the Trial Examiner was precluded under Board decisions from making such review . See Rules and Regula- tions, Section 102.67(f). Indeed, review of the lengthy and voluminous representa- tion proceedings shows that Respondent repeatedly raised before the Regional Director and the Board the same issues concerning voter eligibility and challenged ballots as are renewed in the present proceeding. As early as the represen- tation hearing on October 18, 1967, Respondent raised before the Hearing Officer many of the issues on voter eligibility and, when the Hearing Officer ruled the evidence irrelevant, Respondent immediately filed with the Regional Director a request for special permission to appeal and on October 25 it filed its posthearing brief renewing its contention that voter eligibility should be determined prior to the election. On October 30 the Regional Director issued his Decision and Direction of Election, sustaining the Hearing Officer's rulings. On November 9, 1967, Respondent filed with the Board its request for review of the Regional Director's Decision. On November 25 the Board denied the request for review on the ground that it raised no substantial issues warranting review. Following the election on January 26, 27, and 28, 1968, Respondent filed on February 2 its objections to conduct affecting the results of the election and on April 5, 1968, it filed a statement of position on the challenged ballots and sought a hearing. On June 5 , 1968, the Regional Director issued a lengthy supplemental decision of some 64 pages in which it considered seriatim all of Respondent's objections and all of the challenged ballots. He overruled the objections to the conduct of the election, sustained challenges to six ballots, overruled all remaining challenges, and ordered that the latter ballots be opened and counted. On July 15 Respondent filed with the Board a lengthy request for review in some 26 pages in which it outlined its contentions concerning the Regional Director 's refusal to grant a hearing and the alleged deprivation of due process. The request also contained Respondent 's conten- tions concerning the alleged errors in the Regional Director's rulings on challenged ballots and concluded with a request that the Board order a hearing on the challenges or that in the alternative the Board reverse the Regional Director and sustain the challenges to the ballots of all the strikers. On October 11, 1968, the Board denied Respondent's request for review on the ground that it raised no substantial issues warranting review. On November 11, 1968, Respond- ent filed its petition for reconsideration by the Board, a document of some 24 pages. On December 4, 1968, the Regional Director issued a second Supplemental Decision and Certification of Repre- sentative. The decision recited the results of tallying the challenged ballots formerly ordered to be opened and count- ed and contained a revised tally which listed the intervening Employer Association with having received 166 votes and Steelworkers with 174 and with four other votes as being cast against the participating labor organizations. The deci- sion concluded with a certification of Steelworkers as the bargaining representative. On July 1, 1969, the Board denied Respondent's motion for reconsideration as lacking in merit. The latter action constituted a final disposal of all issues involved in the representation proceeding, for under Section 102.67(f) of the Board's Rules and Regulations denial of the requests for review constituted an affirmance of the Regional Director's action and precluded litigating such issues in any elated subsequent unfair labor practice pro- ceeding.' And;iR'the Board is bound by its own prior determi- nation in the representation proceeding in the absence of new discovered evidence." Baumritter Corporation v. N.L.R.B., 386 F.2d 117, 121 (C.A. 1); see also Pittsburgh Plate Glass Company v. N. L. R. B., 313 U. S. 146. There remains the question whether alleged newly discov- ered evidence on which Respondent made an offer of proof was relevant on the issue of voter eligibility and was such as to require reversal of the Regional Director's findings. The bulk of Respondent's contentions before the Regional Director went to the point that the strikers were no longer its employees at the time they voted in the election in January 1968 because (1) they had been permanently replaced or their jobs permanently eliminated; (2) because they had obtained permanent employment elsewhere; (3) because they had made applications for permanent employ- ment elsewhere, representing they had resigned their employ- ment; or (4) because they had voluntarily and in writing resigned from employment and abandoned the strike. The Regional Director's Supplemental Decision of June 5, 1968, after reciting a full and complete investigation of Respond- ent's claims, set forth in detail the evidence which was submitted by the parties during the investigation concerning each of the strikers individually and concluded with a finding on each. Respondent contends however that at least some of the evidence on which it now relies is newly discovered. Its offer of proof showed however that all its offers of employ- ment to strikers were made long after the election of 1968 and that all except three, which were made in late March 1968, occurred during a period beginning around April 17, 1969, and ending September 12, 1969. Refusals ' The record in the representation case is of course a part of the entire record in enforcement or review proceeding before the court of appeals See Sec 9(d) of the Act 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of reinstatement subsequent to the election do not establish that the employee never intended to return, particularly since down to the present date Respondent has continued to discriminate against returning strikers. See 176 NLRB No. 31, and section C, infra. Indeed, many employees may still be unwilling to return to work until such time as Respondent's unfair labor practices are properly reme- died, and a refusal to return would not result in loss of employment status. Cf. Southwestern Pipe Inc., 179 NLRB No. 52. Furthermore, the fact that many strikers obtained other employment during and after the strike did not rebut their employee status as of the time of the election as found by the Regional Director. National Gypsum Company, 133 NLRB 1492, 1493.1 Neither did the securing of quit slips or the submission of oral or written resignations in order to work at other jobs constitute an abandonment of their status as strikers or as Respondent's employees at the time of the election. S & M Manufacturing Company, 165 NLRB No. 59. In sum, to the extent that Respondent's offer included newly discovered evidence it was either irrelevant to the status of the strikers as employees at the time of the election or it went to the same matters which were covered by the Regional Director's investigation and which were rejected in his decision. Finally it is also to be noted that to 1#ie extent that Respondent sought by its offer to buttress its earlier showing concerning an alleged permanent reduction of its labor force, such claims were considered and rejected by the Board in the prior unfair labor practice case, 176 NLRB No. 31, at footnote 1. I therefore conclude and find that Respondent refused to bargain with the Union on and after June 11, 1969, as alleged in the complaint C. The 8(a)(3) Allegations No substantial issue is presented concerning the discrimi- nation against returning strikers in failing to apply to them the same vacation plan as it did to nonstriking employ- ees, for the evidence showed that Respondent's conduct in this regard was simply a continuation of that which was found violative of the Act in the earlier unfair labor practice proceeding, 176 NLRB No. 31, supra. See section A, supra. As Respondent's brief offers no defense of its action it is assumed that its contentions are the same as those which it advanced to, and which were fully adjudi- cated by, the Board and found to be without merit. I therefore conclude and find as alleged in the complaint that Respondent, by failing and refusing to apply to return- ing strikers, since on or about May 1, 1969, the same vacation plan as it did to nonstriking employees, discriminat- ed against the strikers in violation of Section 8(a)(3) and (1) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: ' Indeed, a failure to seek other employment after the strike was terminated would have seriously prejudiced any backpay claims for strikers who may have been discriminatorily denied reinstatement CONCLUSIONS OF LAW 1. All production and maintenance employees including cast clerks, sample clerks and foundry department produc- tion clerks, janitors, and work leaders at Respondent's Alton, Illinois, facility, excluding guards, office and cost clerk employees, officials, foremen, professional 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. 2. At all times on and after January 28, 1968, the Union has been the certified bargaining representative of Respondent's employees in the aforesaid unit. 3. By refusing to bargain with the Union on and after June 11, 1969, as the exclusive representative of its employees in said unit, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. By discriminating against returning strikers in refusing to apply to them the same vacation plan and to make the same vacation payments as it did to nonstriking employ- ees, Respondent engaged in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in conduct viola- tive of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action as outlined below which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. The complaint allegations concerning discrimination in the payment of vacation benefits to nonstrikers covered conduct beginning on or about May 1, 1969, and General Counsel and Union seek a remedy for that period similar to that adopted by the Board in 176 NLRB No. 31, supra. My Recommended Order will therefore include a requirement that Respondent pay to all strikers who returned to Respondent's employ on and after May 1, 1969, or who may hereafter return, vacation pay computed in the same manner as with all other nonstriking employees, together with interest thereon at the rate of 6 percent' per annum. Isis Plumbing & Heating Company, 138 NLRB' 716. Upon the foregoing findings of fact and conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Duncan Foundry and Machine Works, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the certified bargaining representative of its employees in, the bargaining unit as found above. (b) Discriminating against returning strikers in refusing to apply to them the same vacation plan and to make the same vacation payments as it did the nonstriking employ- DUNCAN FOUNDRY & MACHINE WORKS ees, or in any other manner discriminating against them because of their engaging in concerted activities for mutual aid or protection (c) In any like or similar manner interfering with , restrain- ing, or coercing its employees in the exercise of their rights to self-organization , to form labor organizations, to join or assist United Steelworkers of America, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent provided in Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Bargain collectively upon request with United Steel- workers of America, AFL-CIO, concerning rates of pay, wages, hours of employment , or other conditions of employ- ment of its employees in the bargaining unit above found and, if an understanding is reached , embody such under- standing in a signed agreement. (b) Pay to all striking employees who returned to its employ on and after May 1, 1969, or who may hereafter return, vacation pay computed in the manner as with all other nonstriking employees, together with interest thereon at the rate of 6 percent per annum . Isis Plumbing & Heating Co., 138 NLRB 716 (c) Post in its offices and plant at Alton , Illinois, copies of the notice attached hereto marked "Appendix."'Copies of said notice, on forms provided by the Regional Director for Region 14 shall, after being duly signed by Respondent's representative, be posted by it 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. (d) Notify the Regional Director for Region 14 in writing within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.4 ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice read "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX 19 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 with United Steelworkers of America, AFL-CIO, as the exclusive representative of our employees in the bargain- ing unit described below. WE WILL NOT discriminate against returning strikers in refusing to apply to them the same vacation plan and to make the same vacation payments as we did to nonstriking employees. WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights to self-organization, to form labor organi- zations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activites for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent provided in Section 8(a)(3) of the Act. WE WILL pay to all striking employees who returned to our employ on and after May 1, 1969, or who may hereafter return, vacation pay computed in the same manner as with all other nonstriking employees together with interest thereon at the rate of 6 percent per annum. WE WILL bargain collectively upon request with United Steelworkers of America, AFL-CIO, as the exclusive representative of our employees in the bargain- ing unit described below concerning rates of pay, wages, hours of employment and other conditions of employ- ment and, if an understanding is reached, we will embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees includ- ing cast clerks, sample clerks and foundry depart- ment production clerks, ,janitors, and work leaders at our Alton, Illinois, facility, excluding guards, office and cost clerk employees, officials, foremen, professional employees, and supervisors as defined in the Act. All our employees are free to become and remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent provided in Section 8(a)(3) of the Act. DUNCAN FOUNDRY AND MACHINE WORKS, INC. (Employer) Dated By (Representative) (Title) 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions, may be directed to the Board's Office, 1040 This notice must remain posted for 60 consecutive days Boatmen's Bank Building, 314 North Broadway St. Louis, from the date of posting and must not be altered, defaced, Missouri 63102, Telephone 314-622-4167 or covered by any other material.