Connecticut Foundry Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Connecticut Foundry Company and International Ladies' Garment Workers' Union, AFL-CIO. Case 39-CA-167 January 26, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUIFSDALE Upon a charge filed on March 21, 1980, by Inter- national Ladies' Garment Workers' Union, AFL- CIO, herein called the Union, and duly served on Connecticut Foundry Company, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Officer-in-Charge for Subregion 39, issued a complaint on May 13, 1980, 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 and the 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 complaint alleges in substance that on February 29, 1980, following a Board election in Case -RC- 15464, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate; and that, commencing on or about March 6, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On May 23, 1980, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 14, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 24, 1980, 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 Judg- ment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. 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 and reply to the Motion for Summary Judgment, Respondent as- serts that the handling of the challenged ballots was improper, and that a proper resolution of the challenged ballots would reveal that the Union failed to receive a majority of the valid votes cast. Respondent als;o contends assuming, arguendo, that the Union did receive a majority of the valid bal- lots cast, the election results should be set aside. Moreover, Respondent contends that from the election date (June 16, 1978) to the certification date (February 29, 1980) its work force has changed substantially and, in light of the changes, a bargaining order would be inappropriate under N.L.R.B. v. Hale Manufacturing Company, 602 F.2d 244 (2d Cir. 1979). Respondent admits that it has received the Union's letter requesting it to bar- gain, but Respondent denies that any bargaining obligation exists. The General Counsel contends that Respondent's answer raises no issues other than those fully con- sidered by the Board in the underlying representa- tion proceeding, that Respondent is seeking to reli- tigate such issues, and that Respondent makes no claim that its defenses are based on previously un- available evidence. Our review of the record herein, including the record in Case -RC-15464, 1 discloses that the Union filed a petition for an election on November 15, 1977. On January 6, 1978, the Acting Regional Director for Region I issued a notice of representa- tion hearing. After a hearing on April 19, 1978, the Regional Director for Region I issued a Decision and Direction of Election in Case -RC-15464, di- recting an election in a unit of production and maintenance employees at Respondent's Rocky Hill, Connecticut, facility. On May 31, 1978, Re- spondent filed with the Board a request for review. On June 7, 1978, the Board granted Respondent's request to withdraw its request for review. An election was conducted June 16, 1978, in which 43 votes were cast for the Union, and 75 against the Union, with 94 challenged ballots, a suf- ficient number to affect the results of the election. Both Respondent and the Union timely filed objec- tions to the election. On September 26, 1978, the Regional Director for Region I issued a Supple- mental Decision and revised tally of ballots in which he found, inter alia, () that the challenges to the ballots of six voters were sustained; (2) that I he petition as iled in the Rgilonal ()Officen i oston, Mlassachu- sctts Respondent's facility is located in Rcky iiil, Connecticut Subse- quent t the filing of the pelitiot, Ihe larlford, Connlecticut, Subregional Office opened, and tile case was transferred to that office 254 NLRB No. 89 758 CONNECTICUT FOUNDRY COMPANY the challenges to 78 ballots were overruled, and that the ballots be opened and counted; (3) that four ballots be declared void; (4) that certain of the Union's objections raised identical issues to those presented in Case 1-RC-15464 and thus should be consolidated for hearing before an administrative law judge if a further revised tally showed that the Union had not received a majority; (5) that Re- spondent's Objections 1-7, and 10 and 11 be overr- ruled; and, (6) that Respondent's Objections 8 and 9 raised issues requiring a hearing and ordered that these objections be consolidated for hearing before an administrative law judge if a further revised tally of ballots showed either (a) that the Union had received a majority of the valid votes counted plus the challenges, or (b) that the six undeter- mined challenged ballots were determinative of the outcome of the election. On October 11, 1978, Respondent filed a request for review of the Regional Director's Supplemental Decision and revised tally of ballots, and on Octo- ber 12, 1978, the Union filed a request for review of the Supplemental Decision and revised tally of ballots. On October 17, 1978, the Regional Direc- tor for Region 1 issued an amendment to the Sup- plemental Decision and revised tally of ballots, re- voking his earlier determination to overrule the challenge to the ballot of Francisco Echevarria since it required credibility resolutions and could best be resolved on the basis of record testimony. Subsequently, on October 20, 1978, the Union filed an opposition to the Employer's request for review and Respondent filed a response thereto. Respon- dent, on October 24, 1978, filed a submission of newly discovered evidence in support of the earlier filed request for review and motion for reconsider- ation. In response to both requests for review, the Board on February 16, 1979, by telegram, remand- ed the case to the Regional Director for Region I for hearing on the issue of employee Elizabeth Cornwall's eligibility, if it became determinative, and the Employer's Objection 4 alleging material misrepresentation of the Board's processes in a newspaper article. On February 16, 1979, the Em- ployer filed a request for reconsideration of the Board's telegram and on March 15, the Board denied the Employer's request. In accordance with the Regional Director's Sup- plemental Decision and revised tally of ballots, the amendment to the Supplemental Decision and re- vised tally of ballots, and the Board's partial grant of the Employer's request for review of the Re- gional Director's Supplemental Decision and re- vised tally, certain challenged ballots were opened and counted and another revised tally of ballots issued on March 22, 1979; an amended revised tally of ballots issued March 26, 1979, and a second amended revised tally of ballots issued March 28, 1979. The results of the election as reflected in the second amended revised tally were 100 votes for the Union, 95 votes against the Union, with 8 un- determined challenged ballots, a sufficient number to affect the results of the election. On June 23, 1978, the Union filed a charge against Respondent in Case 1-CA-14654, alleging that Respondent violated Section 8(a)(l) of the Act, by inter alia, granting wage increases to em- ployees during the Union's organizational cam- paign. The charge was amended on July 28, 1978. On May 3, 1979, the Regional Director for Region I issued an Order consolidating cases, amended complaint and notice of hearing, consolidating Cases 1-CA-14654 and -RC-15464, for a hearing before an administrative law judge. On October 19, 1979, the Administrative Law Judge issued his De- cision in which he found, inter alia, that the chal- lenges to the ballots of Elizabeth Cornwall, Jeffrey Cox, Dennis Chapman, Thomas Padilla, Geronimo Padilla, and Francisco Spatase be sustained; the challenges to the ballots of Francisco Echevarria and Michael Wilkes be overruled; and all of Re- spondent's objections be overruled. Respondent filed exceptions to the Administrative Law Judge's Decision and the Union filed exceptions to certain aspects of the Administrative Law Judge's Deci- sion, to which Respondent filed a motion in re- sponse to and answer to the Petitioner's [Union's] exceptions to the Administrative Law Judge's De- cision. On February 29, 1980, the Board issued a Decision, Order, and Certification of Representa- tive, 2 adopting the Administrative Law Judge's Decision. On March 6, 1980, the Union requested that Respondent recognize it as the exclusive bar- gaining representative of the employees in the unit, and to bargain with it. Respondent, since March 6, 1980, has refused to bargain collectively with the Union. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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." All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein 247 NI.R No 145 Se Pimburgh Plat'e G/as Co. v N.L R B., 313 US. 146, 162 (1941), Rules and Reguliahons of the Hoard, Secs 102 67(0 and 102 69(c) 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a Connecticut corporation with a place of business in Rocky Hill, Connecticut, where it is en- gaged in the manufacture and sale of gray iron castings. In the course and conduct of its business, Respondent annually sells and ships from the Rocky Hill, Connecticut, facility products, goods, and materials valued in excess of $50,000 directly to points and places outside the State of Connecti- cut, and purchases and receives at its Rocky Hill, Connecticut, facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Connecticut. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer en- gaged 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 International Ladies' Garment Workers' Union, 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 i. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Employer's Rocky Hill, Connecticut, fa- cility, excluding office clerical employees, guards, and supervisors as defined in the Act. 2. The certification On June 16, 1978, 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 1 designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on February 29, 1980, 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 March 6, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about May 23, 1980, and continuing at all times thereafter to date, Respondent has re- fused, 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 Respondent has, since May 23, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- 760 CONNECTICUT FOUNDRY COMPANY propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Connecticut Foundry Company is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Employer's Rocky Hill, Connecticut, facility, excluding office clerical employees, guards and su- pervisors as defined in the Act constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 29, 1980, 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 March 6, 1980, 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 prac- tices 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, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 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 Re- lations Board hereby orders that the Respondent, Connecticut Foundry Company, Rocky Hill, Con- necticut, 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 International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees employed at the Employer's Rocky Hill, Con- necticut, facility, excluding office clerical em- ployees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Rocky Hill, Connecticut, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Of- ficer-in-Charge for Subregion 39, 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, de- faced, or covered by any other material. (c) Notify the Officer-in-Charge for Subregion 39 in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 4 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 Lahor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National abor 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 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other terms and conditions of employment with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 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 production and maintenance employees employed at the Employer's Rocky Hill, Connecticut facility, excluding office clerical employees, guards and supervisors as de- fined in the Act. CONNECTICUT FOUNDRY COMPANY 762