Sauk Valley Manufacturing Co.

SAUK VALLEY MANUFACTURING CO. 287 Sauk Valley Manufacturing Co. and Sheet Metal Production Workers, Local Union No. 355 AFL- CIO. Case 20-CA-6969 January 31, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 2, 1971, Trial Examiner Herman Cor- enman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a sup- porting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Sauk Valley Manufacturing Co., Oakland, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding' HERMAN CORENMAN, Trial Examiner: Prior to March 8, 1971, Sheet Metal Production Workers, Local Union No. 355, AFL-CIO, hereinafter called the Union, filed a represen- tation petition in Case 20-RC-9707; seeking to be certified as the collective-bargaining representative of Respondent's em- ployees in an appropriate unit. On April 8 and 9, 1971, pursu- ant to a Decision and Direction of Election issued March 8, 1971, by the Regional Director of Region 20 of the Board, an election by secret ballot was conducted among the employees of Sauk Valley Manufacturing Co., Inc., hereinafter called Respondent, in the unit found appropriate. In that election a majority of the Respondent's employees in the appropriate unit designated and selected the Union as their representative for the purpose of collective bargaining with the Respondent. Pursuant to timely objections to conduct affecting the re- sults of the election in Case 20-RC-9707, an investigation was conducted in accordance with Section 102.69 of the Board's Rules and Regulations, Series 8, as amended. As a ' Official notice is taken of the record in the representation proceeding Case 20-RC-9707. result of such investigation, the Regional Director on June 4, 1971, issued his Supplemental Decision and Certification of Representative, overruling the Respondent's objections and certifying the Union as the exclusive representative of the employees in the unit found appropriate for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. On June 29, 1971, the Respondent filed with the Board a timely Request for Review of the Regional Director's Supple- mental Decision and Certification. On August 4, 1971, the Board, by telegram, denied the Respondent's aforesaid Re- quest for Review, concluding that it raised no substantial issues warranting review. The Complaint Case On August 20, 1971, the Union filed a charge in this case alleging that the Respondent was refusing to bargain with the Union in violation of Sections 8(a)(1) and (5) of the Act. On September 7, 1971, the General Counsel, by the Re- gional Director for Region 20, issued a complaint alleging that since on or about August 16, 1971, the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act by refusing to bargain with the Union upon request. In due course, the Respondent filed its answer to the com- plaint in which certain allegations of the complaint were admitted and others denied. In its answer, the Respondent, inter alia, admitted the following allegations of the complaint: (1) jurisdictional; (2) that the Respondent is an employer engaged in commerce; (3) that the unit involved is appropriate; (4) that on or about April 9, 1971, a majority of the Respondent's employees in the appropriate unit involved, by secret ballot conducted un- der supervision of the Regional Director for Region 20 of the Board, designated and selected the Union as their representa- tive, and that on June 4, 1971, the Regional Director certified the Union as the exclusive representative for the purpose of collective bargaining with the Respondent; and (5) that Re- spondent, though requested to bargain, has refused since on or about August 16, 1971, to bargain with the Union. The Respondent's answer to the complaint denied (1) that the Regional Director's aforesaid certification of the Union was lawful, proper or just; (2) that the majority election vote was uncoerced; and (3) that it had violated Section 8(a)(1) and (5) of the Act in refusing to bargain with the Union. The Respondent's answer by way of affirmative defense alleges (1) that the conduct of the election and conduct affecting the results of the election required that the election be set aside; (2) that the overruling of the Respondent's objections afore- said by the Regional Director was improper and erroneous; (3) that the Regional Director improperly denied the Re- spondent a hearing on its aforesaid objections; and (4) that the Board improperly denied the Respondent's Request for Review on the ground that it raised no substantial issues warranting review. Pursuant to notice, this matter was heard before the Trial Examiner on November 1 and 4, 1971, at San Francisco, California. All parties appeared by counsel. The Trial Exam- iner declined to permit the parties to litigate the merits of the Respondent's objections to conduct affecting the results of the election in the representation matter. On November 4, 1971, counsel for the General Counsel orally on the record moved for summary judgment. Upon request of all parties, they were allowed 14 days to submit briefs. Briefs have been submitted by counsel for the Charging Party and the Respondent and they have been carefully considered. 195 NLRB No. 52 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ruling on the Motion for Summary Judgment The questions as to the validity of the election, the merit of Respondent's objections with respect to it, and whether the Union should be certified, were raised by the Respondent in its Objections to Election and to Conduct Affecting the Re- sults of Election, and in its exceptions to, and Request for Review of, the Regional Director's Supplemental Decision and Certification of Representative; and were decided by the Board in the representation proceeding. It is thus clear that Respondent seeks to relitigate those issues here. This the Respondent may not do before the Trial Examiner.' It is the established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner, in a complaint case, of issues which were or could have been litigated in a prior representation proceeding.' This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised which cannot be decided without a formal hearing;' and that there are not such issues here has been effectively decided by the Board. Although the circuit courts are empowered under Section 9(d) of the Act to review the Board's determination in representation cases, the Trial Examiner, however, has no such authority. He may not re- view the Board's final disposition of the representation issues or question its conclusions based on the existing record. The Respondent is free, in exceptions to this Trial Examiner's Decision, to request the Board to reconsider the determina- tion on the representation case, and, in the event of an unfa- vorable final order of the Board, Respondent may request review of those determinations in an appropriate Court of Appeals. At this stage of the proceeding, however, absent newly discovered or previously unavailable evidence or spe- cial circumstances, the Board's disposition of the representa- tion matters is the law of the case and binding on the Trial Examiner. No newly discovered or previously unavailable evidence is offered by the Respondent, or special circum- stances alleged. The refusal to bargain being conceded, there are no issues litigable before a Trial Examiner, and therefore no matters requiring hearing. Accordingly, counsel for the General Counsel's Motion for Summary Judgment is granted, and I make the following further: Electra Manufacturing Company, 169 NLRB No. 19 Paymaster Oil Mill Co, 181 NLRB No 59, N.L R B v. Macomb Pot- tery, 376 F 2d 450 (C A. 7, 1967), Howard Johnson Company, 164 NLRB No 121, Metropolitan Life Insurance Company, 163 NLRB No 71 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146,162 (1941) N L R B Rules and Regulations , Section 102 67(f) which provides in part as follows. "Denial of a request for review shall constitute an affirmance of the Regional Director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding " ' Paymaster Oil Mill Co, 181 NLRB No 59, Electra Manufacturing Company, 169 NLRB No 19, O.K. Van and Storage, 127 NLRB 1537, enforced 297 F.2d 74 (C A 5, 1961) See Air Control Window Products, Inc., 355 F 2d 245, 249 (C.A 5, 1964) "If there is nothing to hear, then a hearing is a senseless and useless formality " See also N.LR B. v Bata Shoe, 377 F 2d 821, 826 (CA. 4, 1967), cert denied 389 U S 971, " there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to determin- ation of whether NLRB election results are to be accepted for purpose of certification " FINDINGS I THE BUSINESS OF THE RESPONDENT The original charge was filed by the Union on August 20, 1971, and a copy was served on Respondent by registered mail on the same date. Respondent, Sauk Valley Manufacturing Co., an Illinois corporation, with an office and place of business at Oakland, California, is engaged in the manufacture of barbed wire. Respondent, in the course and conduct of its business opera- tions, during the past year, sold and shipped goods and materials valued in excess of $50,000 directly to customers located outside the State of California , and at all times material, Respondent has been an employer engaged in com- merce and in operations affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union, at all times material, is, and has been, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES All production employees, mechanics, shipping and receiv- ing employees, and forklift operators employed by Respond- ent at its Oakland, California, location, excluding office cleri- cal employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. On April 8 and 9, 1971, a majority of the employees in the unit described above, in a secret-ballot election conducted under the supervision of the Regional Director for Region 20 of the Board, selected the Union as their exclusive representa- tive for the purpose of collective bargaining with Respondent. On June 4, 1971, the Regional Director for Region 20 of the Board, acting for the Board, certified the Union as the exclusive representative of the employees in the unit de- scribed above, for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. At all times since April 9, 1971, and continuing to date, the Union has been the representative for the purpose of collec- tive bargaining of the employees in the unit described above, and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Commencing on or about August 6, 1971, and continuing to date, the Union has requested, and is requesting, Respond- ent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive bargaining representative of all employees in the unit described above. Commencing on or about August 16, 1971, and at all times thereafter, Respondent did refuse, and continues to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative of all employees in the unit described above. By such action the Respondent has refused to bargain collectively in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced its employees in vio- lation of Section 8(a)(1) of the Act The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. SAUK VALLEY MANUFACTURING CO 289 Upon the foregoing findings and conclusions and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended.' ORDER A. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized exclusive representative in the appropriate unit.' B. Sauk Valley Manufacturing Co., Inc., its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Refusing to bargain collectively with Sheet Metal Production Workers, Local Union No. 355, AFL-CIO, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate bargaining unit: All production employees, mechanics, shipping and re- ceiving employees and fork lift operators employed by Respondent at its Oakland, California location, exclud- ing office clerical employees, guards and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as such exclusive collective-bar- gaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with Sheet Metal Production Workers, Local Union No. 355, AFL-CIO, as the exclusive representative of all employees in the appropri- ate unit with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its place of business at Oakland, California, copies of the attached notice marked "Appendix."' Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by an authorized repre- sentative of the Respondent, shall be posted by the Respond- ent immediately upon receipt thereof and be maintained by the Respondent for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 20, in writing, within 20 days from receipt of this recommended Order what steps the Respondent has taken to comply herewith.' In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read "Notify the Regional Director for Region 20, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 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 with SHEET METAL PRODUCTION WORKERS, LO- CAL UNION NO. 355, AFL-CIO, as the exclusive collective-bargaining representative of all the following employees: All production employees, mechanics, shipping and re- ceiving employees and fork lift operators employed by Respondent at its Oakland, California location, exclud- ing office clerical employees, guards, and supervisors as defined in the Act. WE WILL bar*ain collectively with the Union as the exclusive collective-bargaining representative of the em- ployees in the appropriate unit, and if an understanding is reached we will sign a contract with the Union. ' 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, 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 6 The purpose of this provision is 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 See Mar-Jac Poultry, 136 NLRB 785, Burnett Construction Co, 149 NLRB 1419, 1421, enfd 350 F.2d 57 (C A. 10, 1965); Paymaster Oil Mill Co. 181 NLRB No 59 ' 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 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 " Dated By SAUK VALLEY MANUFACTURING, CO. (Employer) (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, 13050 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 556- 0335.