Brazeway, Inc.

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brazeway, Inc. and United Steelworkers of America, AFL-CIO. Case 7-CA-18853 June 1, 1981 DECISION AND ORDER Upon a charge filed on February 3, 1981, by United Steelworkers of America, AFL-CIO-CLC, herein called the Union, and duly served on Brazeway, Inc., herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on February 4, 1981, against Re- spondent, 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 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 January 14, 1981, following a Board election in Case 7-RC- 15905, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about January 30, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On Febru- ary 12, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 20, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 25, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent has not filed a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: I Official notice is taken of the record in the representation proceed- ing, Case 7-RC-15905, as the term "record" is defined in Secs. 102.68 and 102.6 9(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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Inrerrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 256 NLRB No. 39 Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent admits the Union's request, and its refusal to bar- gain, but denies that the Union is the exclusive col- lective-bargaining representative of the employees in the unit described below. Review of the record herein, including the record in Case 7-RC-15905, reveals that on April 28, 1980, the Union filed a petition seeking to rep- resent certain employees of Respondent. The par- ties executed a Stipulation for Certification Upon Consent Election which was approved by the Re- gional Director on June 6, 1980. On July 10, 1980, a secret-ballot election was conducted among Respondent's employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its plants locat- ed at 2711 East Maumee Street and 2011 West Beecher, Adrian, Michigan, including tool room employees and inspectors; but excluding draftsmen, truck drivers, office clerical em- ployees, guards and supervisors as defined in the Act. The tally was 76 for, and 70 against, the Union and 2 challenged ballots were cast, a number insuffi- cient to affect the results. Thereafter, Respondent filed timely objections on which a hearing was held and, on September 29, 1980, the Hearing Offi- cer issued his report, which recommended that Re- spondent's objections be overruled and that the Union be certified as the exclusive bargaining rep- resentative for the unit described herein. Respond- ent filed exceptions to the report and, on January 14, 1981, the Board issued a Decision and Certifica- tion of Representative wherein it adopted the Hearing Officer's findings and recommendations and certified 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.2 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 which would require the Board to reexamine the decision made in the representation proceeding. We 2 See Pittsburgh Plate Glass Co. v N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102 67(f) and 102.6 9(c). BRAZEWAY, INC. 259 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 1. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a cor- poration organized and existing by virtue of the laws of the State of Michigan, with its principal place of business and factories located in Adrian, Michigan, has been engaged in the manufacture, sale, and distribution of aluminum tubing and tubing parts for the air-conditioning and refrigera- tion industries. During the 12 months preceding is- suance of the complaint, Respondent, in the course and conduct of its business operations, received gross revenues in excess of $1 million and sold goods and materials valued in excess of $50,000 to customers located outside the State of Michigan and caused said goods and materials to be shipped directly to points outside the State of Michigan from its Adrian, Michigan, plants. We find, on the basis of the foregoing, that Re- spondent 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. 11. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO- CLC, 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 consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its plants locat- ed at 2711 East Maumee Street and 2011 West Beecher, Adrian, Michigan, including tool room employees and inspectors; but excluding draftsmen, truck drivers, office clerical em- ployees, guards and supervisors as defined in the Act. 2. The certification On July 10, 1980, 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 7, 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 January 14, 1981, 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 21, 1981, 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 January 30, 1981, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 30, 1981, 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 that, by such refusal, Respond- ent 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 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 BRAZEWAY, INC. 259 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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- 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. Brazeway, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO- CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its plants located at 2711 East Maumee Street and 2011 West Beecher, Adrian, Michigan, including tool room employees and inspectors; but excluding draftsmen, truck driv- ers, office clerical employees, guards and supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 14, 1981, 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 January 30, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive 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, Respond- ent 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, Brazeway, Inc., Adrian, Michigan, 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 United Steelwork- ers of America, AFL-CIO-CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its plants locat- ed at 2711 East Maumee Street and 2011 West Beecher, Adrian, Michigan, including tool room employees and inspectors; but excluding draftsmen, truck drivers, 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 Adrian Michigan, facilities copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 7, 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 Re- 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 read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." BRAZEWAY, INC. 261 spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with United Steelworkers of America, AFL- CIO-CLC, 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 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions 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 by the Employer at its plants lo- cated at 2711 East Maumee Street and 2011 West Beecher, Adrian, Michigan, including tool room employees and inspectors; but ex- cluding draftsmen, truck drivers, office cleri- cal employees, guards and supervisors as de- fined in the Act. BRAZEWAY, INC. RAZEWAY, INC. 261 - --