Bancroft Manufacturing Co., Inc.

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bancroft Manufacturing Company , Inc., Croft Alumi- num Company, Inc., Croft Ladders, Inc., Croft Metal Products, Inc., Lemco Metal Products, Inc. and Southern Council of Industrial Workers, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 15-CA-4368 June 2, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY March 30, 1972, the Board issued an order transfer- ring 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 failed to file a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Upon a charge filed on February 9, 1972, by Southern Council of Industrial Workers, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called the Union, and duly served on Bancroft Manufacturing Company Inc., Croft Aluminum Company, Inc., Croft Ladders, Inc., Croft Metal Products, Inc., and Lemco Metal Products, Inc., herein called the Respondent , the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on March 10, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 October 20, 1971, following a Board election in Case 15-RC-4641 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; 1 and that, commencing on or about February 4, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse , to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 20, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 24, 1972, counsel for the General Counsel filed directly with the Board a Motion to Transfer and Continue Case Before the Board and Motion for Summary Judgment. Subsequently, on Ruling on the Motion for Summary Judgment The thrust of Respondent's answer to the com- plaint attacks the validity of the election and the resulting certification, and avers that its reason for refusing to bargain with the Union was for the specific purpose of obtaining judicial review of the Board's certification. The Respondent through its answer is attempting to relitigate the same issues which were raised in its request for review and application for stay in the representation proceeding, Case 15-RC-4641, which was denied by the Board on January 3, 1972, and its motion for reconsidera- tion which was denied by the Board on January 19, 1972. 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 proceeding 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 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 ih this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: ' Official notice is taken of the record in the representation proceeding, F Supp 573 (D.C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d Case 15-RC-4641 , as the term "record" is defined in Secs 102 68 and 91 (C A 7, 1968), Sec 9(d) of the NLRA 102 69(f) of the Boaid's Rules and Regulations , Series 8 , as amended See 2 See Pittsburgh Plate Glass Co v N LR B , 313 U S 146, 162 ( 1941), LTV Electrosystemr, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269 197 NLRB No. 39 BANCROFT MANUFACTURING CO., INC. 259 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANIES Respondent Bancroft Manufacturing Company, Inc., is, and at all times material herein has been, a Mississippi corporation with its principal place of business located at McComb, Mississippi, where it is engaged in producing aluminum windows, screens, and accessories. Respondent Croft Aluminum Company, Inc., is, and at all times material herein has been, a Mississippi corporation with its principal place of business located in McComb, Mississippi, where it is engaged in producing aluminum extrusions and ingots. Respondent Croft Ladders, Inc., is, and at all times material herein has been, a Mississippi corporation with its principal office located in McComb, Missis- sippi, and place of business in Osyka, Mississippi, where it is engaged in producing aluminum ladders. Respondent Croft Metal Products, Inc., is, and at all times material herein has been, a New York corporation with an office and place of business located in McComb, Mississippi, where it is engaged in producing aluminum windows and doors. Respondent Lemco Metal Products, Inc., is, and at all times material herein has been, a New York corporation with an office located in McComb, Mississippi, and place of business in Osyka, Missis- sippi, where it is engaged in producing combination screens and storm windows and combination doors and screen doors. Respondent Companies are, and at all times material herein have been, affiliated businesses with common officers, ownership, directors, offices, and operators and constitute a single integrated business enterprise; the said directors and operators formulate and administer a common labor policy for Respon- dent Companies affecting the employees of Respon- dent Companies. During the past 12 months, which period is representative of all times material herein, Respon- dent Companies, individually and collectively, pur- chased and received goods and materials valued in excess of $50,000, which were shipped directly to Respondent Companies, individually and collective- ly, in Mississippi, from points located outside Mississippi. During the same period, Respondent Companies, individually and collectively, sold and shipped products valued in excess of $50,000 directly to customers located outside Mississippi. 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 Southern Council of Industrial Workers, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor organization within the mean- ing 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed at Respondent's McComb, Magnolia, and Osyka, Mississippi, facilities, including plant clerical employees, inter-plant drivers, and lead- men and leadwomen; excluding over-the-road truckdrivers, office clerical employees, profession- al and technical employees, watchmen, and guards and supervisors as defined in the Act. 2. The certification On July 1, 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 15, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on October 20, 1971, and the Union continues 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 January 31, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about February 4, 1972, and continu- ing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since February 4, 1972, 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, Respon- dent 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 activities of the Respondent set forth in section III, above, occurring in connection with its opera- tions 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 com- merce. 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 certifica- tion as beginning on the date Respondent commences to bargain in good , faith with the Union as the recognized bargaining representative in the appropri- ate 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. Bancroft Manufacturing Company, Inc., Croft Aluminum Company, Inc., Croft Ladders, Inc., Croft Metal Products, Inc., and Lemco Metal Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6), and' (7)I of the ; Act. 2. Southern Council of Industrial Workers, Unit- ed Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees employed at Respondent's McComb, Magnolia, and Osyka, Mississippi, facilities, including plant clerical employees, inter-plant drivers, and leadmen and leadwomen ; excluding over-the-road truckdrivers, office clerical employees, professional and technical employees, watchmen, and guards 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 20, 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 February 4, 1972, 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 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain , Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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, Bancroft Manufacturing Company, Inc., Croft Alu- minum Company, Inc., Croft Ladders, Inc., Croft Metal Products, Inc., and Lemco Metal Products, Inc., 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 Southern Council of Industrial Workers, United Brotherhood of Carpen- ters & Joiners of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed at Respondent's McComb, Magnolia, and Osyka, Mississippi, facilities, including plant clerical employees, inter-plant drivers, and lead- BANCROFT MANUFACTURING CO., INC. 261 men and leadwomen; excluding over-the-road drivers, office clerical employees, professional and technical employees, watchmen, and guards 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 McComb and Osyka, Mississippi, facilities 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 representa- tive, 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 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. 3 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 Natioanl Labor Relations Board " APPENDIX 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 representa- tive 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 agree- ment. The bargaining unit is: All production and maintenance employees em- ployed at Respondent's McComb, Magnolia, and Osyka, Mississippi, facilities, including plant clerical employees, inter-plant drivers, and leadmen and leadwomen; excluding over-the-road truckdrivers, office clerical employees, professional and technical employees, watchmen, and guards and supervisors as defined in the Act. Dated 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 South- ern Council of Industrial Workers, United Broth- erhood of Carpenters & Joiners of America, This is an by anyone. By BANCROFT MANUFACTURING COMPANY, INC., CROFT ALUMINUM COMPANY, INC., CROFT LADDERS, INC., CROFT METAL PRODUCTS, INC., AND LEMCO METAL PRODUCTS, INC. (Employer) (Representative) (Title) official notice and must not be defaced 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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.