Andrews Wire Corp.

ANDREWS WIRE CORPORATION 179 Andrews Wire Corporation andUnited Steelworkers of America, AFL-CIO. Case 11-CA-4378 January 28, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN Upon a charge filed on October 9, 1970, by United Steelworkers of America, AFL-CIO, herein called the Union, and duly served on Andrews Wire Corpora- tion, herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint on October 27, 1970, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning 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 hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on August 10, 1970, following a Board election in Case 1I-RC-3122 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about September 21, 1970, 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 November 5, 1970, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. In addition, the Re- spondent by its answer alleged certain affirmative de- fenses to the allegations set forth in the complaint. On November 12, 1970, counsel for the General Counsel filed directly with the Board a motion to strike portions of Respondent's answer, accompanied by a Motion for Summary Judgment. In substance, the General Counsel contends that the Respondent's answer to the complaint raises no issues warranting an evidentiary hearing, and prays the Board to grant the Motion for Summary Judgment. Subsequently, on November 23, 1970, the Board issued an Order trans- 1 Official notice is taken of the record in the representation proceeding, Case I I -RC-3122 as the term "record" is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations , Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co., 167 NLRB 151 Ineertype Co v. Penello, 269 F Supp. 573 (D.C Va., 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA ferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice to Show Cause, accompanied by a Cross-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 proceeding, includ- ing the record in Case 11-RC-3122, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT The record in Case I1-RC-3122 reveals that fol- lowing the election the Respondent filed its objections by a telegram, in which it alleged that the Union had engaged in material misrepresentations and a threat to one of the Respondent's managerial agents, and additionally alleged that by the specified acts, and other acts, the Union had engaged in conduct that materially and substantially affected the results of the election. No evidence accompanied the objections and, by telegram, the Regional Director requested the Respondent to submit a copy of the leaflet alleged to contain the material misrepresentations and the de- tails, including the time, place, words, and the names of the witnesses to the alleged threat. In response, by letter, the Respondent provided the Regional Direc- tor with a copy of the Union's leaflet together with its contentions thereon, and also informed the Region of the essential elements concerning the alleged threat, including the names of the management's representa- tives, the Union's representatives, and the employees who were present at the time of the incident. Later at a time prior to the issuance of the Regional Director's Supplemental Decision and Certification of Repre- sentative, and in response to an inquiry from the Re- gion, the Respondent advised that it had no additional evidence pertaining to the "other acts" specified in the conclusionary allegations in its objec- tions. Thereafter, on the basis of interviews with wit- nesses to the alleged threat, and a statement obtained from the counsel for the Respondent who was present at the time of the incident, the Regional Director concluded that the Respondent's objections did not raise substantial and material issues with respect to the conduct of the election, overruled the objections, and certified the Union as the collective-bargaining representative of the employees in the appropriate unit. Subsequently, the Respondent filed "excep- tions" with the Board, supported by a brief, in which it raised the same contentions as are now advanced in 188 NLRB No. 27 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this unfair labor practice proceeding. On September 4, 1970, the Board denied the request for review. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a Respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, the record of which is be- fore us and has been reviewed. Moreover, the Respon- dent does not offer to adduce at a hearing any newly discovered or previously 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 .4 We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the General Counsel's Motion for Summary Judgment,5 and deny the Respondent's Cross-Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is now, and has been at all times material herein, a corporation duly organized under, and existing by virtue of the laws of, the State of Delaware, maintaining an office of business in the city of Andrews, South Carolina. The Respondent is, and has been at all times material herein, engaged in the manufacture and sale of spring wire. The Respondent, during the past 12 months, which period is representa- tive of its operations at all times material herein, re- ceived goods and materials valued in excess of $50,000, which goods were shipped to its Andrews, South Carolina, plant directly from points and places outside the State of South Carolina. During the same period of time, the Respondent produced and shipped 2 See Pittsburgh Plate Glass Co v. N.LR.B, 313 U.S 146,162 ( 1941); Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). 3 As attachments tots answer to the complaint, the Respondent included four documents, each dated November 4, 1970, which purport to be affidavits from employees having knowledge of the threat relied on by the Respondent in its objections. It is clear that neither the names of the employee witnesses nor the contents of their affidavits was furnished to the Regional Director in conjunction with the objection. Moreover, the Respondent neither con- tends nor offers to prove that the proffered evidence was newly discovered or unavailable to it at the time it filed the objections and furnished the evidence in support thereof. 4 However, in ruling on this Motion, the Board has reviewed the record in Can 11-RC-3122. Based on such review, we find no ground for disturbing the Regional Director's findings and conclusions, and adopt them. s In view of our disposition herein, we shall deny the General Counsel's motion to strike portions of the Respondent 's answer to the complaint. goods valued in excess of $50,000 from its Andrews, South Carolina, plant directly to places and points outside the State of South Carolina. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed at the Employer's Andrews, South Caroli- na, plant, including plant clerical employees, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On July 15, 1970, 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 11, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on August 10, 1970, and the Union contin- ues 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 September 10, 1970, and continuing at all times thereafter to date, the Respon- dent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since September 21, 1970, and at all times thereafter, refused to bargain collectively with the Union as the ANDREWS WIRE CORPORATION 181 exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 meaning of Section 8(a)(5) and (1) 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 appro- priate unit and, if an understanding is reached, em- body such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a/ Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Andrews Wire Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed at the Respondent's Andrews, South Car- olina, plant, including plant clerical employees, but excluding office clerical employees, profes- sional employees, guards, and supervisors as de- fined in the Act. 4. Since August 10, 1970, 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 September 21, 1970, 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 Respon- dent in the appropriate unit, Respondent had engaged 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 in the exercise of the rights guaranteed to them in Section 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 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 Rela- tions Board hereby orders that Respondent, Andrews Wire Corporation, 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 condi- tions of employment, with United Steelworkers of America, AFL-CIO, as the exclusive bargaining rep- resentative of its employees in the following appropri- ate unit: All production and maintenance employees em- ployed at the Employer's Andrews, South Caroli- na, plant, including plant clerical employees, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guar- anteed 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 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Andrews, South Carolina, plant cop- ies of the attached notice marked "Appendix."6 Cop- ies of said notice, on forms provided by the Regional Director for Region 11, 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 notices to employees are customarily posted. Reasonable 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 11, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 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." APPENDIX 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with the United Steelworkers of America, AFL-CIO, bar- gaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, 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 at the Employer's Andrews, South Carolina, plant, including plant clerical em- ployees, but excluding office clerical em- ployees, professional em loyees, guards, and supervisors as definedpin the Act. ANDREWS WIRE CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211, Extension 360.