Southern Metal Service, Inc.

SOUTHERN METAL SERVICE, INC. Southern Metal Service, Inc. and District 73, Interna- tional Association of Machinists & Aerospace Workers, AFL-CIO. Case 15-CA-6767 June 12, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on January 26, 1978, by District 73, International Association of Machinists & Aero- space Workers, AFL-CIO, herein called the Union, and duly served on Southern Metal Service. Inc.. herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on Febru- ary 6, 1978, against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hear- ing before an Administrative 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 October 14. 1977, following a Board election in Case 15-RC-6139. the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about January 16, 1978, and at all times thereafter, Respondent has refused, and continues 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 February 10, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 21, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 2, 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the Official notice is taken of the record in the representation proceeding, Case 15-RC .6139. as the term "record" is defined in Sees. 1(0268 and 102.6 9 (g) of the Board's Rules and Regulations. Series 8, as amended. See LTI' Electrosvstems, Inc.. 166 NL.RB 938 (1967), enfd. 388 F.2d 683 (('A 4 1968): (olden A.ge Beerage Co, 167 Nl.RB 151 (1967). enfd 415 F:2d 2'6 ((C'A. 5. 1969); Intertpe (Co v Penell, 269 f:.Supp 573 (D(Va.. 1967): Follett Corp.. 164 NLRB 378 (1967}, enfd 397 .2d 91 ((C.A. 7. 1968): Sec 9(d) of the NLRA. as amended 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 and its response to the Notice To Show Cause, Respondent admits its refusal to bargain, but denies that it thereby violated Section 8(a)(5) and (I) of the Act. Respondent's an- swer to the complaint denies that the bargaining unit is appropriate and denies that the Union has majori- ty status among the unit employees. Respondent's re- sponse to the Notice To Show Cause alleges that "the Regional Director abused his discretion when he re- fused to consider Respondent's objections in the un- derlying representation case." The aforesaid conclu- sion is based on the Regional Director's decision to complete his investigation on Respondent's objec- tions without ordering a hearing on them. Further, Respondent contends that "the Regional Director err- ed by certifying an inappropriate unit for purposes of collective bargaining." Counsel for the General Counsel argues that Re- spondent's contentions 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 the record in Case 15-RC-6139, shows the following: On July 1., 1977, the Union filed a petition on which a hearing was held on July 18, 1977. On July 26, 1977, the Re- gional Director issued a Decision and Direction of Election in which the appropriate unit for collective bargaining was found to consist of all production and maintenance employees employed by Respon- dent at its Gulfport, Mississippi, facility, including the shipping clerks and truckdrivers, excluding all of- fice clerical employees, professional employees. guards, watchmen and supervisors as defined in the Act. On August 5, 1977. Respondent filed with the Board a request for review of the Regional Director's Decision and Direction of Election contesting the in- clusion of over-the-road truckdrivers in the bargain- ing unit. The request for review was denied on Au- gust 22, 1977. On August 25. 1977. an election by secret ballot was conducted under the direction and supervision of the Regional Director among the emp.oyees in the unit described above. A majority of the unit employ- ees designated and selected the Union as their repre- sentative for the purposes of collective bargaining with Respondent. On September 1, 1977, Respon- dent filed objections to the election which were over- 236 NLRB No. 96 827 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruled in their entirety in the Regional Director's Sup- plemental Decision and Certification of Representa- tive issued on October 14, 1977, certifying the Union as the exclusive o1llective-bargaining representative of Respondent's employees in the appropriate unit. Respondent's request for review of the aforemen- tioned Supplemental Decision and Certification of Representative was denied by the Board on Novem- ber 4, 1977. Commencing on or about December 16, 1977, the Union requested, and is continuing to request, Re- spondent to furnish it with a list of employees, their classifications, wage rates, and benefits and to recog- nize and bargain collectively with it concerning the employees' rates of pay, wages, hours, and other terms and conditions of employment. Since on or about January 16, 1978, and at all times thereafter to date, Respondent has refused, and is continuing to refuse, to recognize the Union and to meet and bar- gain collectively with the Union as the exclusive bar- gaining representative of Respondent's unit employ- ees. Respondent seeks to justify its refusal to recognize and deal with the Union on the ground that "The National Labor Relations Board certified an invalid bargaining unit and erred when it refused to sustain the Employer's objections to the election. For this reason Respondent submits that it is under no obli- gation to commence bargaining with an illegal bar- gaining unit." The issues which Respondent seeks to raise at this time were raised and decided by the Regional Direc- tor in the underlying representation proceeding. In denying Respondent's request for review of the Re- gional Director's Decision and Direction of Election, the Board affirmed his findings with respect to the appropriateness of the unit. In denying Respondent's subsequent request for review of the Regional Direc- tor's Supplemental Decision and Certification of Representative, the Board affirmed the Regional Di- rector's findings with respect to the disposition of Respondent's objections which were overruled in their entirety and thereby necessarily determined that those objections did not raise substantial or ma- terial issues of fact warranting a hearing thereon. It thus appears that Respondent is attempting to raise again issues which were specifically considered and resolved by the Regional Director and 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.2 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: FINDINGS OF FACT i. THE BUSINESS OF RESPONDENT Respondent is a Mississippi corporation engaged ini the processing of steel at its Gulfport, Mississippi, location. During the past 12 months, a representative period, Respondent sold and shipped products val- ued in excess of $50,000 directly to points located outside the State of Mississippi. During the same rep- resentative period, Respondent received goods val- ued in excess of $50,000 directly from points located outside the State of Mississippi. 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. T[H LABOR ORGANIZATION INVOLVED District 73, International Association of Machin- ists & Aerospace Workers, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. 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 and maintenance employees 2See Pittsbhurgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146. 162 (1941). Rules and Regulations of the Board. Sees. 102.67(f) and 102.6 9(c). 828 SOUTHERN METAL SERVICE. INC. employed by Respondent at its Gulfport, Missis- sippi, facility, including the shipping clerks and truckdrivers; excluding all office clerical employ- ees, professional employees. guards, watchmen and supervisors as defined in the Act. 2. The certification On August 25, 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 15, 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 October 14, 1977, and the Union con- tinues 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 16, 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 16, 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 16, 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 (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTIC(ES 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, 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. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate 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 he 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 Companm. Inc., 136 NLRB 785 (1962); Comnmerce Compan' d/h/a Lamar fHorel, 140 NLRB 226. 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (11964); Bur- netr Con.truction Companlrl,, 149 NLRB 1419. 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CON('I SIONS OF LAw 1. Southern Metal Service, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 73. International Association of Ma- chinists & Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ploved by Respondent at its Gulfport, Mississippi, facility, including the shipping clerks and truckdriv- ers. excluding all office clerical employees, profes- sional employees, guards. watchmen 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 October 14, 1977. the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 16, 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 829 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged 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 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, Southern Metal Service, Inc.. Gulfport, Mississippi, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with District 73, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its Gulfport, Missis- sippi, facility, including the shipping clerks and truckdrivers; excluding all office clerical em- ployees, professional employees, guards, watch- men 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 Gulfport, Mississippi, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able 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 Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WII.L NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Dis- trict 73, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclu- sive representaative of the employees in the bar- gaining 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 and maintenance employees employed by us at our Gulfport, Mississippi, facility, including the shipping clerks and truckdrivers; excluding all office clerical em- ployees, professional employees, guards, watchmen and supervisors as defined in the Act. SOUTHERN METAL. SERVICE, INC. 830