Combustion Engineering, Inc.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Combustion Engineering, Inc. Saginaw Division and Bricklayers, Masons and Plasterers' Union-Local No. 7, Saginaw, Michigan, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO. Case 7-CA-7276 June 30, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA Upon a charge filed by Bricklayers , Masons and Plasterers' Union-Local No. 7, Saginaw , Michigan, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint dated April 22, 1969, against Combustion Engineering, Inc., Saginaw Division, herein called Respondent, alleging that the Respondent had engaged in and was engaging 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 . Copies of the charge and complaint and notice of hearing were duly served on the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance , that on February 11, 1969, the Regional Director for Region 7 certified the Union as the collective-bargaining agent of the Respondent' s employees in the unit found appropriate,' and that, on or about February 11, 1969, and thereafter, the Respondent failed and refused to recognize and bargain with the Union as such exclusive bargaining representative of the employees in the certified unit at the Respondent's plant, although the Union has requested and is requesting Respondent to do so . On May 5, 1969, the Respondent filed its answer to the complaint, denying the commission of the unfair labor practices alleged and presenting its affirmative defense to the allegations. On May 9, 1969, the General Counsel filed with the Board a Motion to Transfer Case to the Board and Motion for Summary Judgment, submitting, in effect, that the Respondent's answer, including its affirmative defenses, raise no issues which have not or could not have been litigated in the prior representation case; that the operative facts admitted or affirmatively pleaded suffice to establish the violations alleged in the complaint ; and that, therefore, the Board should grant his Motion for Summary Judgment, and issue a Decision and Order finding the violations alleged and remedying the unfair labor practices so found. Thereafter, on May 13, 1969, the Board issued an Order Transferring the Proceeding to the Board and a 'Case 7-RM-655 , not printed in NLRB volumes Notice to Show Cause, on or before May 26, 1969, why the General Counsel' s Motion for Summary Judgment should not be granted . On May 26, 1969, the Respondent filed an opposition to the General Counsel' s Motion for Summary Judgment. 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. 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 that the certified unit is inappropriate and that it is entitled to a hearing in order to introduce "newly discovered and previously unavailable evidence" bearing on this issue . Such evidence consists of (1) the opinions expressed by an arbitrator in resolving the dispute between the Union and the United Steelworkers of America, AFL-CIO,' under the AFL-CIO No-Raiding Pact machinery, and (2) evidence discovered during the course of a "tangently related" investigation bearing on the "past relationship between bricklayer employees and representation by Steelworkers Union . . . . " It is not alleged that the arbitrator' s opinions were based on evidence which was not or could not have been presented to the Board at the representation hearing. The evidence Respondent may have uncovered in the course of its subsequent investigation has not been identified; nor has Respondent asserted that such evidence, whatever it may be, could not have been discovered by diligent preparation for the hearing in representation Case 7-RM-655 or that it would require a different result . Thus, Respondent has not satisfied the requirements of Section 102.48 (d)(1) of the Board's Rules and Regulations, Series 8, as amended . Accordingly, it is not entitled to an additional hearing on the representation issues. The record before us establishes that on December 1, 1967, the Regional Director issued his Decision and Direction of Election , finding, inter alia, that a unit of bricklayers at Respondent's Saginaw, Michigan, location was appropriate. Thereafter, on December 9, 1968, while a Request for Review of the Regional Director' s Decision was pending before the Board, Respondent moved the Board to remand the representation matter to the Regional Director "in view of new factors." That motion was denied by the Board on January 15, 1969. Thereafter, an election was conducted among the bricklayer employees at Respondent's Saginaw, Michigan, location, under the supervision of the Regional Director for Region 7. The tally of ballots showed that the Union received a majority of the 'Intervenor in the representation case. 177 NLRB No. 34 COMBUSTION ENGINEERING, INC. valid votes cast. On January 24, 1969, Respondent filed objections with the Regional Director, alleging, inter alia, that the Board's failure to grant its earlier motion constituted prejudicial error. On February 11, 1969, the Regional Director issued a Supplemental Decision on Objections and Certification of Representative, overruling the Respondent's objections in toto and certifying the Union as the exclusive bargaining representative of Respondent's bricklayer employees at its Saginaw, Michigan, location. Thereafter, by letters dated January 28, February 21, and March 20, 1969, the Union requested and is requesting the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of the employees in the unit described above. In response to these requests, Respondent has, by letters dated February 11 and 28, 1969, refused and continues to refuse to recognize or bargain with the Union. As all material issues have previously been decided by the Board, or stand admitted by the failure of the Respondent to deny the essential allegations of the General Counsel's motion, there are no matters requiring a hearing before a Trial Examiner. We find no basis for entertaining the Respondent's unit contention. It is well established that in the absence of newly discovered or previously unavailable evidence, a respondent is not entitled to relitigate in an 8(a)(5) proceeding issues which were or could have been raised in a related representation proceeding.' 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 At all material times herein, Combustion Engineering , Inc., Saginaw Division , has maintained its only office and place of business at 601 North Washington in the city of Saginaw, and State of Michigan, and is engaged in the manufacture, sale, and distribution of utility and industrial equipment, and related products. During the past year, Respondent, in the course and conduct of its business operations, purchased and caused to be delivered to its Saginaw plant, steel and other goods and materials valued in excess of $6,500,000, of which goods and materials valued in excess of $6 million were transported and delivered to its plant in Saginaw, Michigan, directly from points located outside the State of Michigan . During the same period, Respondent had sales and performed services valued in excess of $11 million of which sales and services valued in excess of $10 million were made to and performed in locations outside the State of Michigan. 'Pittsburgh Plate Glass Company v . N.L.R.B., 313 U.S. 146. 303 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. II. THE LABOR ORGANIZATION INVOLVED Bricklayers, Masons and Plasterers' Union-Local No. 7, Saginaw, Michigan, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit At all times material herein, the following employees of the Respondent have constituted a unit appropriate for collective bargaining within the meaning of the Act: All bricklayers employed by the Employer at its 601 N. Washington, Saginaw, Michigan, location, excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification Between January 23 and February 5, 1969, a majority of the employees of the Respondent in said unit, in a mail-ballot election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargaining with the Respondent. On February 11, 1969, the Regional Director for Region 7 certified the Union as the collective-bargaining representative of the employees in said unit, and the Union continues to be such representative. B. The Request To Bargain and the Respondent's Refusal Commencing on or about February 11, 1969, and continuing 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 February 11, 1969, 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 February 11, 1969, and now is the exclusive 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 February 11, 1969, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, 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 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 appropriate unit, and , if an understanding is reached . embody such understanding in a signed agreement . In order to insure that the employees in the appropriate unit will be accorded the services of their elected 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 U .S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd . 350 F.2d 57 (C.A. 10). Conclusions of Law 1. Combustion Engineering, Inc., Saginaw Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bricklayers, Masons and Plasterers' Union-Local No. 7, Saginaw, Michigan, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All bricklayers employed by the Employer at its 601 North Washington , Saginaw, Michigan, location, but excluding all other employees, office clerical employees, professional employees, guards and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 11, 1969, 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 collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 11, 1969, 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) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and has thereby 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 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 Respondent, Combustion Engineering, Inc., Saginaw Division, Saginaw , Michigan, 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 conditions of employment, with Bricklayers, Masons and Plasterers' Union-Local No. 7, Saginaw, Michigan, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, as the exclusive bargaining representative of its employees in the unit found appropriate above. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed 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 appropriate unit 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 appropriate unit is: COMBUSTION ENGINEERING, INC. All bricklayers employed by the Employer at its 601 N. Washington, Saginaw, Michigan, location, but excluding all other employees, office clerical employees, professional employees, guards and supervisors within the meaning of the Act. (b) Post at its Saginaw, Michigan, place of business, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by the Respondent 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 7, in writing, within 10 days from the date of this Decision, what steps the Respondent has taken to comply herewith. '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 Decreee of the United States Court of Appeals Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of The National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act as amended, 305 we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Bricklayers, Masons and Plasterers' Union-Local No. 7, Saginaw , Michigan, Bricklayers, Masons and Plasterers' International Union of America, 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 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 our 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 bricklayers employed by the Employer at its 601 N. Washington, Saginaw, Michigan, location, but excluding all other employees, office clerical employees, professional employees, guards and supervisors within the meaning of the Act. Dated By COMBUSTION ENGINEERING, INC. SAGINAW DIVISION (Employer) (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.