S-G Metal Industries, Inc.

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S-G Metal Industries, Inc. and Automotive Employ- ees, Laundry Drivers and Helpers Local 88, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 31-CA- 10403 June 8, 1981 DECISION AND ORDER Upon a charge filed on September 4, 1980, by Automotive Employees, Laundry Drivers and Helpers Local 88, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on S-G Metal Industries, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Di- rector for Region 31, issued a complaint and notice of hearing on September 24, 1980, 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, 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 May 30, 1980, following a Board election in Case 31-RC- 4675, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about August 22, 1980, and at all times thereafter Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. The complaint also al- leges that commencing on or about August 22, 1980, and at all times thereafter, Respondent has refused and continues to refuse to supply the Union with information that is relevant to collective bar- gaining, although the Union has requested and is requesting it to do so. On October 1, 1980, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On February 2, 1981, counsel for the General Counsel filed directly with the Board a Motion for I Official notice is taken of the record in the representation proceed- ing, Case 31-RC-4675, as the term "record" is defined in Secs. 102.68 and 102.69 (g) of the Baord'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); Intertype Co. v. Penello, 269 F. Supp. 573 (DC. Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 256 NLRB No. 60 Summary Judgment. Subsequently, on February 5, 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 thereafter filed a response to the Notice To Show Cause. 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 response to the Notice To Show Cause Respondent essentially contests the validity of the Union's certification. Although Respondent admits that it has refused to bargain with the Union, and has refused to supply the Union with requested information, Respondent denies that it thereby violated Section 8(a)(5) and (1) of the Act. Specifically, Respodnent reasserts its claim that the Union engaged in objectionable con- duct prior to the election and that a second elec- tion should be held. In addition, Respondent asserts that, pursuant to a Freedom of Information Act re- quest, it has received and expects to receive infor- mation from the Acting Regional Director bearing upon the investigation of Respondent's objections to the election. It claims that such information gives rise to factual issues concerning the Union's alleged objectionable conduct thereby rendering summary judgment improper. In the Motion for Summary Judgment the General Counsel maintains that Respondent is attempting to relitigate the issues it raised in the related representation pro- ceeding. We agree with the General Counsel. Review of the record herein, including the record in Case 31-RC-4675, reveals that on Febru- ary 11, 1980, after a hearing and the submission of a brief by Respondent, the Regional Director issued a Decision and Direction of Election. No re- quest for review of the Decision and Direction of Election was filed. An election was conducted on March 12, 1980, which resulted in a vote of 35 to 14 in favor of the Union and 1 void and no chal- lenged ballots. On March 18, 1980, Respondent filed timely objections to conduct affecting the re- sults of the election. Respondent's objections al- leged, inter alia, that: A union observer improperly engaged employees waiting to vote in conversa- tion; supervisors participated in the union organiza- tion and election campaigns; partisan markings were made on Board documents; material misrepre- sentations were made to employees by the Union; employee signatures on authorization cards were fraudulently obtained; and employees were intimi- dated and coerced by the Union. S-G METAL INDUSTRIES, INC. 417 Following an investigation in which all parties were allowed to submit evidence, the Regional Di- rector issued a Supplemental Decision and Certifi- cation of Respresentative in Case 31-RC-4675, overruling Respondent's objections, finding that no material issues of fact requiring a hearing existed, and certifying the Union as the representative of all employees in the designated unit. Thereafter, Re- spondent filed a timely request for review of the Regional Director's Supplemental Decision and Certification of Representative. By telegraphic order dated August 14, 1980, the Board denied Re- spondent's request for review. It appears, therefore, that Respondent is attempting to raise issues herein which were raised and determined in the underly- ing representation case. 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,3 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 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 The Respondent, a Missouri corporation, is en- gaged in the manufacture of aluminum ingot prod- ucts at Gardena, California. In the course and con- duct of its business operations, Respondent annual- ly purchases and receives goods or services 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 herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and 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 69(c). 3 The purported "previously unavailable evidence" obtained by Re- spondent pursuant to its FOIA request relates only to the merits of the representation case proceeding and, in particular, the Regional Director's investigation thereof that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Automotive Employees, Laundry Drivers and Helpers Local 88, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, billet and deox department employees, ship- ping and receiving employees, truckdrivers, and leadmen employed by Respondent at its facility located at 1439 West 178th Street, Gardena, California, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On March 12, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 31, 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 May 30, 1980, and the Union continues to be such exclusive representative within the meaning of the Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about August 18, 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 August 22, 1980, and continu- ing at all times thereafter to date, 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. S-G METAL NDUSTRIES INC 417 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that Respondent has, since August 22, 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. C. The Request for Information and Respondent's Refusal Commencing on or about August 18, 1980, and at all times thereafter, the Union has requested that Respondent provide it with certain relevant and necessary information to assist the Union in carry- ing on collective bargaining. Commencing on or about August 22, 1980, and at all times thereafter to date, Respondent has refused and continues to refuse, to supply the requested information. All of the information sought by the Union is plainly rele- vant to collective-bargaining matters, would be useful to the Union, and directly relates to the stat- utory obligations and functions of the Union.4 Accordingly, we find that Respondent has, since August 22, 1980, and at all times thereafter, refused to provide the Union with information relevant to collective bargaining and necessary to the Union in carrying out its statutory obligations and that, by such refusal, Respondent has engaged in and is en- gaging 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. 4 The information requested by the Union is as follows: The name, ad- dress. classification, shift assignment, and starting time of each bargaining unit employee; the original date of hire and present hourly pay rate of each employee; the Employer's present vacation, sick leave, and funeral leave policies; a copy of any current health, medical, and hospitalization program including the total cost thereof, and amounts paid by the Em- ployer and individuals and the number of employees in the unit not cov- ered by such plan; the normal workweek and number of hours per day each employee is required to work; the Employer's lunch policy; a copy of the Employer's present rules; a list of each job in the unit; any bonus. profit sharing, or retirement program, the cost thereof, and a copy of the program and the number of employees covered; and any other terms and conditions of employment and/or the benefits which apply to employees in the unit. 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. We shall further order Respondent to supply the Union with the information relevant to collective-bargaining matters requested by the Union on or about August 18, 1980. 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 (1964); 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. S-G Metal Industries, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Automotive Employees, Laundry Drivers and Helpers Local 88, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, billet and deox department employees, shipping and receiving employees, truckdrivers, and lead- men employed by S-G Metal Industries, Inc., at its facility located at 1439 West 178th Street, Gardena, California, excluding all office clerical employees, professional employees, 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 that Act. 4. Since May 30, 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. S-G METAL INDUSTRIES, INC. 419 5. By refusing on or about August 22, 1980, 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 refusing on or about August 22, 1980, and at all times thereafter, to supply the Union with re- quested information relevant to collective-bargain- ing matters, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusal to bargain, and refusal to supply requested information, Respondent has interfered with, restrained, and coerced, and is in- terfering with, restraining, and coercing, employees 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. 8. 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, S-G Metal Industries, Inc., Gardena, 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 conditions of employment with Automotive Em- ployees, Laundry Drivers and Helpers Local 88, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees, billet and deox department employees, ship- ping and receiving employees, truckdrivers, and leadmen employed by Respondent at its facility located at 1439 West 178th Street, Gar- dena, California, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) Refusing to supply the Union with requested information relevant to collective-bargaining mat- ters. (c) 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 agreeement. (b) Supply the Union with the information rele- vant to collective-bargaining matters requested by the Union on or about August 22, 1980. (c) Post at its Gardena, California, facility copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 31, 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- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 5 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 L.abor 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIL NOT refuse to bargain collectively concerning rates of pay, wages, hours and other terms and conditions of employment with Automotive Employees, Laundry Drivers and Helpers Local 88, International Brother- hood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL. NOT refuse to supply the Union with requested information relevant to collec- tive-bargaining matters. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- S-G~~. ME A I D T , 41 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, billet and deox department employees, ship- ping and receiving employees, truckdrivers, and leadmen employed by us at our facility located at 1429 West 178th Street, Gardena, California; excluding all office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. WE WILL supply the Union with the infor- mation relevant to collective-bargaining mat- ters requested by the Union on or about August 22, 1980. S-G METAL INDUSTRIES, INC.