Rabco Metal Products, Inc.

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rabco Metal Products, Inc. and Sheet Metal Work- ers' International Association, Local Union No. 75, Food Service Equipment Division , AFL-CIO. Case 21-CA-14415 June 25, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on February 24, 1976, by Sheet Metal Workers' International Association, Lo- cal Union No. 75, Food Service Equipment Division, AFL-CIO, herein called the Union, and duly served on Rabco Metal Products, Inc., herein called Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 21, issued a complaint on February 27, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on February 6, 1976, following a Board election in Case 21-RC-14083, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about February 18, 1976, 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 and to fur- nish the Union with relevant and necessary bargain- ing information, although the Union has requested and is requesting it to do so. On March 8, 1976, Re- spondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 1, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 14, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the i Official notice is taken of the record in the representation proceeding, Case 21-RC-14083, as the term "record" is defined in Secs 102 68 and 102 69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26 (C A 5, 1969), Iniertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA General Counsel's Motion for Summary Judgment should not be granted. Respondent has failed to file a response to Notice To Show Cause. On April 26, 1976, the Union filed a motion to intervene and its "Answer on Behalf of Intervenor to Notice To Show Cause," in which it requests that it be awarded from Respondent "those attorneys' fees, litigation expen- ses and excess organizational costs incurred as a re- sult of the continuing unlawful conduct and raising of frivolous defenses by the employer herein." The Union's motion to intervene is hereby granted. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent, in sub- stance, attacks the validity of the Union's certifica- tion, contending that no true majority of unit em- ployees designated and selected the Union and that some members of the unit, in a number sufficient to alter the results of the election, were coerced and misled into voting for the Union. Review of the record herein, including the record in Case 21-RC-14083, indicates that, pursuant to the Regional Director's Decision and Direction of Elec- tion, an election was held on April 25, 1975. The tally of ballots disclosed six votes for and eight against the Union, leaving determinative the eight challenged ballots. Thereafter, Respondent filed timely objec- tions to conduct affecting the results of the election, alleging, in substance, (1) misrepresentations, (2) su- pervisory support for the Union, (3) creation of the impression that the U.S. Government endorses the Union, (4) failure by the Board to enable an eligible hospitalized employee to vote, and (5) involvement of a third party in the Union's organizational cam- paign. After investigation, on June 18, 1975, the Re- gional Director issued his Supplemental Decision and Order Directing Hearing and Order Consolidat- ing Cases and Notice of Hearing. In his supple- mental decision, the Regional Director overruled Respondent's objections in their entirety, sustained the challenges to two of the ballots, directed a hear- ing as to six of the challenged ballots, and consolidat- ed said hearing with Cases 21-CA-13413-1 and 21- CA-13413-2.2 Subsequently, Respondent filed a re- 2 The six challenged individuals, Arturo Flores, Rafael Flores Esquivel, Hurshal Holliday, David Oldfield, George Olgum Garcia, and Anthony Vince, were alleged to have been discriminatorily discharged and were the subject of unfair labor practice charges in Cases 21-CA-13413-1 and 21- CA-13413-2 On April 4, 1975, the Acting Regional Director issued an 225 NLRB No. 39 RABCO METAL PRODUCTS, INC. 237 quest for review with the Board as to the Regional Director's overruling its election objections, specifi- cally those related to misrepresentations and the fail- ure to enable the hospitalized employee to vote. The Board, by telegraphic order dated July 18, 1975, de- nied the request for review as it raised no substantial issues warranting review. After a hearing, on September 9, 1975, the Admin- istrative Law Judge found that five of the six chal- lenged voters had been discharged in violation of Section 8(a)(3) of the Act,3 and recommended that Case 21-RC-14083 be remanded to the Regional Di- rector in order to open and count the ballots cast by the five discriminatees. Thereafter, Respondent filed exceptions to the Administrative Law Judge's Deci- sion and, on December 23, 1975, after considering such exceptions, the Board issued its Decision and Order,4 affirming the rulings, findings, and conclu- sions of the Administrative Law Judge and adopting her recommended Order. On January 8, 1976, Respondent requested that the Board reconsider its Decision and Order, grant an additional hearing, and stay the counting of bal- lots, scheduled for January 9, 1976, on the grounds that Respondent had new evidence which was un- available at the time of the original hearing. Respon- dent further stated that a formal petition with sup- porting documentation would be submitted promptly. On February 4, 1976, noting that Respon- dent had failed to submit any such supporting docu- mentation, the Board denied Respondent's request for reconsideration and a stay of the counting of bal- lots as lacking in merit. Following the counting of the 5 challenged ballots, the revised tally of ballots dis- closed 11 votes for and 8 votes against the Union. Accordingly, on February 6, 1976, the Regional Di- rector certified the Union as the exclusive representa- tive of an appropriate unit of Respondent's employ- ees. In its answer, Respondent states its contentions herein will be supported by newly discovered evi- dence previously unavailable to Respondent, but it has failed to submit any such supporting evidence whatsoever. It thus appears that Respondent is seek- ing to relitigate herein issues which were raised and decided in the underlying representation case. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circum- stances a respondent in a proceeding alleging a viola- Order Consolidating Cases, Consolidated Complaint, and Notice of Hear- ing in these cases 7 Following Holliday's failure to appear at the hearing, the Administrative Law Judge granted the General Counsel 's motion to amend the consolidat- ed complaint to delete the allegations as to his discharge 221 NLRB 1230. tion of Section 8(a)(5) is not entitled to relitigate is- sues which were or could have been litigated in a prior representation proceeding.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding. Respondent's bare con- clusionary assertion of newly discovered or previous- ly unavailable evidence is an insufficient basis for re- consideration and it does not allege any other special circumstances which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.' We shall, accord- ingly, 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 Respondent, a California corporation with a place of business in Los Angeles, California, is engaged in the manufacture and fabrication of sheet metal prod- ucts. In the course and conduct of its business opera- tions, Respondent annually sells goods valued in ex- cess of $50,000 to customers located within the State of California, each of which customers annually pur- chases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. 11. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers' International Association, Local Union No. 75, Food Service Equipment Divi- 5 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) 6 In its answer to the complaint, Respondent denies the General Counsel's allegation that since on or about February 18, 1976, Respondent has refused to bargain with the Union or to furnish the Union with the information requested However , attached to the General Counsel's Motion for Summary Judgment is a letter, dated February 18, 1976, purportedly from Respondent's attorney, addressed to the Union, in which Respondent refuses to bargain with the Union or to furnish the information requested As Respondent offers nothing to controvert this evidence, we deem the complaint allegation concerning a refusal to bargain to be admitted to be true and we so find 7 The Union's request for attorneys ' fees, litigation expenses, and excess organizational costs is denied , as we do not find Respondent's defenses herein to be frivolous Heck's, Inc, 215 NLRB 765 (1974), Amsterdam Print- ing and Litho Corp, 223 NLRB 370 (1976) 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees of Respondent, including fabri- cators, installers, shipping and receiving employ- ees, truckdrivers, and leadmen; excluding all of- fice clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. 2. The certification On April 25, 1975, 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 21, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on February 6, 1976, and the Union con- tinues 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 February 11, 1976, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit, and has re- quested Respondent to furnish it with relevant and necessary bargaining information concerning such employees, including, but not limited to, the names, classifications , wage rates, length of employment, and fringe benefits of such employees. Commencing on or about February 18, 1976, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit, and has refused, and continues to refuse, to furnish the Union with the requested information. Accordingly, we find that Respondent has, since February 18, 1976, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and has refused to furnish relevant and necessary bargaining information requested by the Union, and that, by such refusals, 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 Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, inti- mate, 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 Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, furnish the requested bargaining informa- tion and bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody 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 se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied,379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419; 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Rabco Metal Products, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers' International Associa- tion, Local Union No. 75, Food Service Equipment Division, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of Respondent, including fabri- RABCO METAL PRODUCTS, INC. 239 cators, installers, shipping and receiving employees, truckdrivers, and leadmen; excluding all office cleri- cal employees, professional employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 6, 1976, 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 February 18, 1976, 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 Re- spondent in the appropriate unit, and to furnish the Union with relevant and necessary bargaining infor- mation requested by the Union, Respondent has en- gaged 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 and to fur- nish bargaining information, Respondent has inter- fered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the ex- ercise 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 Sec- tion 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 Re- lations Board hereby orders that the Respondent, Rabco Metal Products, Inc., Los Angeles, California, 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 con- ditions of employment with Sheet Metal Workers' International Association, Local Union No. 75, Food Service Equipment Division, AFL-CIO, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All employees of Respondent, including fabri- cators, installers, shipping and receiving employ- ees, truckdrivers, and leadmen; excluding all of fice clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. (b) Refusing to furnish the Union with requested relevant and necessary bargaining information con- cerning the employees in the above-described unit, including, but not limited to, the names, classifica- tions, wage rates, length of employment, and fringe benefits of such employees. (c) 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) Upon request, furnish the Union with request- ed relevant and necessary bargaining information concerning the employees in the aforesaid appropri- ate unit, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of such employees. (c) Post at its Los Angeles, California, facility cop- ies of the attached notice marked "Appendix." 8 Cop- ies of said notice, on forms provided by the Regional Director for Region 21, 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 no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 8 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 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 Sheet 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Workers' International Association, Lo- cal Union No. 75, Food Service Equipment Di- vision, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT refuse to furnish the above- named Union with requested relevant and nec- essary bargaining information concerning the employees in the bargaining unit described be- low, including, but not limited to, the names, classifications, wage rates, length of employ- ment, and fringe benefits of such employees. 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 represen- tative of all employees in the bargaining unit de- scribed 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 employees of Respondent, including fabricators, the Employer installers , shipping and receiving employees , truckdrivers, and leadmen ; excluding all office clerical employ- ees, professional employees , guards, watch- men, and supervisors as defined in the Act. WE WILL, upon request , furnish the Union with requested relevant and necessary bargain- ing information concerning the employees in the aforesaid appropriate unit, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of such employees. RABCO METAL PRODUCTS, INC.