Cyclops Corp.

REEVES-BOWMAN 155 Reeves-Bowman, Division of Cyclops Corporation and Pittsburgh Draftsmen and Designers Association, Local No. 200 a/w American Federation of Techni- cal Engineers, AFL-CIO. Case 6-CA-5600 November 11, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on July 28, 1971, by Pittsburgh Draftsmen and Designers Association, Local No. 200 a/w American Federation of Technical Engineers, AFL-CIO, herein called the Union, and duly served on Reeves-Bowman, Division of Cyclops Corpora- tion, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a com- plaint on August 27, 1971, 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 complaint alleges in substance that on June 11, 1971, following a Board election in Case 6-RC-5647, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;1 and that, commencing on or about June 30, 1971, 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 September 7, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 22, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 30, 1971, the Board issued an order transferring the proceeding 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 called Statement in Opposition to the Motion for Summary Judgment. i Official notice is taken of the record in the representation proceeding, Case 6-RC-5647, 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, Intertype Co v. Penello, 194 NLRB No. 24 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 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 the Respondent denies that the unit found by the Regional Director in the representation proceeding, Case 6-RC-5647, is appropriate for collective bargaining. Consequently, in support of the Motion for Summary Judgment, the General Counsel argues that the Respondent does not raise any issues not previously litigated. A review of the underlying representation case shows that in a Decision and Direction of Election issued April 23, 1971, the Regional Director found the appropriate unit to be the Respondent's plant at Heidelberg, Pennsylvania. The Respondent sought a review of the decision, arguing that the unit was "inherently inappropriate" and that only a residual unit was appropriate. It also raised unit placement issues. On May 20, 1971, the Board denied this request as raising no substantial issues warranting review except as to the issue of the unit placement of the quality control supervisor which could best be resolved through the challenge procedure. After the election on May 21, 1971, the Respondent filed timely objections raising the unit issue and alleging objections which were investigated by, and subsequently overruled by, the Regional Director in his Supplemental Decision and Certification of Representative. The Respondent then filed a request for review of the Supplemental Decision, again raising the issues of the residual unit and unit placement. The Board in denying review on July 13, 1971, found that this request, like the earlier one, also raised no substantial issues warranting review. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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, and the Respondent does not offer to adduce at a hearing any newly discovered 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. 2 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S 146,102 (1941), Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. In its response to the Notice To Show Cause, the Respondent also contends (1) that there is no basis in the legislative history of the Act for summary procedure and the Board's summary judgment procedure is contrary to procedural due process; and (2) that Section 10(b) of the Act and Section 5 of the Administrative Procedure Act give the Respondent a statutory right to a hearing in this proceeding. We find no merit in either contention. The authority for the Board to use summary judgment procedures is well established where no substantial and material issues of fact or law that warrant a hearing are presented, and the Board frequently has exercised this authority.3 Nor is the Respondent entitled to an evidentiary hearing as a matter of statutory right in an unfair labor practice case where, as here, there are no substantial and material issues of fact for determina- tion. The Board, with judicial approval, has so held; and in such cases summary judgment is appropriate .4 We shall, accordingly, grant the 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 a Delaware corporation engaged in the fabrication of steel products including roof and floor decking and accessory products at its plant in Heidelberg, Pennsylvania. During the past calendar year, the Respondent shipped goods and materials valued in excess of $50,000 from its plant at Heidelberg, Pennsylvania, directly to points outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that 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 Pittsburgh Draftsmen and Designers Association, Local No. 200 a/w American Federation of Technical 3 W S Hatch Co., Inc., 190 NLRB No. 122, and cases cited in fn 3, Lipman Motors, Inc., 187 NLRB No 36, and cases cited in fn 4 Engineers, 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 The following employees of the Respondent consti- tute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act: All technical employees , including design engi- neer, design draftsman, checkers-senior, checkers- junior, detailers, order verifiers, estimators, and draftsmen trainees, employed at the Employer's Heidelberg, Pennsylvania, facility, excluding, all other employees, employees represented by Unit- ed Steelworkers of America, AFL-CIO, manageri- al and confidential employees , plant clerical employees, office clerical employees and guards, professional employees and supervisors as defined in the Act. 2. The certification On May 21, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election conducted 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. The Union was certified as the collective-bargaining representative of the employees in said unit on June 11, 1971, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about May 27, 1971,, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about June 30, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 30, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has 4 Janler Plastic Mold Corp., 191 NLRB No. 24; Crest Leather Manufacturing Company, 167 NLRB 1085, and cases cited in In. 1. REEVES-BOWMAN 157 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 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 commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce 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 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 selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Reeves-Bowman, Division of Cyclops Corpora- tion, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Pittsburgh Draftsmen and Designers Associa- tion, Local No. 200 a/w American Federation of Technical Engineers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All technical employees, including design engi- neer, design draftsman, checkers-senior, checkers- junior, detailers, order verifiers, estimators, and draftsmen trainees, employed at the Employer's Heidelberg, Pennsylvania, facility, excluding all other employees, employees represented by United Steel- workers of America, AFL-CIO, managerial and confidential employees, plant clerical, employees, office ,clerical employees and guards, 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. 4. Since June 11, 1971, 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 June 30, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section $(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 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 Relations Board hereby orders that Respondent, Reeves-Bowman, Division of Cyclops 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 conditions of employment with Pittsburgh Draftsmen and Designers Association, Local No. 200 a/w .American Federation of Technical Engineers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All technical employees, including design engi- neer, design draftsman, checkers-senior, checkers- junior, detailers, order verifiers, estimators, and draftsmen trainees, employed at the Employer's Heidelberg, Pennsylvania, facility, excluding all other employees, employees represented by Unit- ed Steelworkers of America, AFL-CIO, manageri- al and confidential employees, plant clerical employees, office clerical employees and guards, professional employees and supervisors as defined in the Act. (b) In any like or related manner interfering with, 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its plant in Heidelberg, Pennsylvania, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 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 under- standing in a signed agreement. The bargaining unit is: All technical employees, including design engineer, design draftsman, checkers-senior, checkers junior, detailers, order verifiers, estimators, and draftsmen trainees, employed at the Employer's Heidelberg, Pennsylvania, facility, excluding all other employees, em- ployees represented by United Steelworkers of America, AFL-CIO, managerial and confidential employees, plant clerical em- ployees, office clerical employees and guards, professional employees and supervisors as defined in the Act. 5 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Pitts- burgh Draftsmen and Designers Association, Local No. 200 a/w American Federation of Technical Engineers, AFL-CIO, as the exclusive REEVES-BOWMAN, DIVISION OF CYCLOPS 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 compliance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.