Sterling_Salem Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sterling-Salem Corporation, a subsidiary of Katy Industries, Inc. and United Steelworkers of Ameri- ca, AFLCIO. Case 8-CA-10808 August 12, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER Upon a charge filed on February 18, 1977, by United Steelworkers of America, AFL-CIO, herein called the Union, and duly served on Sterling-Salem Corporation, a subsidiary of Katy Industries, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint and notice of hearing on March 30, 1977, 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, 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 December 17, 1976, following a Board election in Case 8-RC- 10620 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; ' and that, commencing on or about January 4, 1977, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 14, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 25, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 2, 1977, 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 Judgment should not be granted. On May 25, 1977, Respondent filed a response to Notice To Show Cause and brief in support entitled "Employer's Opposition to Counsel for General Counsel's Motion for Summary Judg- ment." I Official notice is taken of the record in the representation proceeding, Case 8--RC-10620, 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 Electrrrosstems, 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); Intertrpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); 231 NLRB No. 59 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: Ruling on the Motion for Summary Judgment In its answer and opposition to the Motion for Summary Judgment, Respondent in substance denies the unit and the representative status of the Union on the grounds of (1) the failure to find the election barred by a collective-bargaining contract; (2) the omission of the employee shop committee from the ballot; (3) the exclusion of draftsmen from the uriit; and (4) the certification of the election results without investigating Respondent's election objec- tion. In his Motion for Summary Judgment and brief in support, counsel for the General Counsel contends that the pleadings raise no issue of fact which require a hearing or which were not previously presented to and decided by the Board. We agree. Review of the entire record in this proceeding, including that in Case 8-RC-10620, shows that at the representation case hearing Respondent contended that (1) a collective-bargaining agreement between it and the employee shop committee barred an election, and (2) draftsmen should be included in the requested production and maintenance unit. In his Decision and Direction of Election issued November 15, 1976, the Regional Director found that (1) the proffered agreement, embodied in a bulletin signed only by Respondent's president and covering only economic matters, was not adequate to bar an election under Appalachian Shale Products Co.,2 and (2) draftsmen should be excluded from the unit. He also found the employee shop committee to be a statutory labor organization, but determined that it would not be placed on the ballot because it had not intervened in the proceeding. Respondent filed a request for review and brief in support, reiterating its unit contention and seeking dismissal of the petition on the grounds that (1) the bulletin merely updated the previous contract which was signed by the parties and contained provisions in addition to economic matters3 and that together they constituted a contract bar to the election, and (2) the failure to place the shop committee on the ballot was a denial of due process because the shop committee was not notified of the hearing or advised of its right to Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec. 9(d) of the NLRA, as amended. 2 121 NLRB 1160(1958). 3 Respondent attached to its request for review the onginal contract which was unavailable at the time of the hearing. 336 STERLING-SALEM CORP. intervene. On December 8, 1976, the Board denied Respondent's request as raising no substantial issues warranting review. The election was held on December 10, 1976, and the tally furnished on that date showed a majority for the Union. In the absence of objections, the Acting Regional Director certified the Union on December 17, 1976. By mailgram dated December 17, 1976, Respondent informed the Region that it was filing "exceptions" to the election on the ground that the shop committee had not been allowed a place on the ballot. By letter dated December 20, 1976, the Acting Regional Director informed Respondent that its objection was untimely and rejected because its mailgram had been received on December 20, 1976, and, in accordance with Section 102.69(a) of the Board's Rules, the period for filing objections to the election had elapsed on December 17, 1976. Respon- dent failed to file a request for Board review of the Acting Regional Director's certification of the Union and his rejection of Respondent's objection. In its opposition to the Motion for Summary Judgment, Respondent for the first time asserts that it filed a timely objection called "exceptions" by telegram phoned to the Regional Director on December 17, 1976, and that it confirmed these "exceptions" by a Western Union mailgram dated December 17, 1976. As indicated above, the mail- gram was not received by the Regional Office until December 20, 1976. None of the foregoing communi- cations constitute compliance with Section 102.69(a) of the Board's Rules and Regulations, Series 8, as amended, which requires that an original and three copies of any objection be filed with the Regional Director within 5 days after the tally has been furnished. Assuming that the objection had been timely and properly filed, Respondent is not now entitled to Board consideration of the issues of the timeliness of its objection and of the validity of the certification, having had the opportunity for Board consideration of those issues and not having taken the opportunity.4 Furthermore, the substance of Respondent's objection had been previously consid- ered by the Board since the issue of the failure to place the shop committee on the ballot was raised in Respondent's request for review in the underlying representation case and was rejected by the Board when review was denied. It thus appears that 4 Cindy's Restaurants, Inc., 229 NLRB 41 (1977). ' 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). I In its answer Respondent denies the requests and refusals to bargain and provide certain information. Attached to the Motion for Summary Judgment as exhibits which contents Respondent does not controvert are: (l) A letter from Respondent to the Union dated January 3, 1977, stating that it was seeking a court ruling on the certification and that it would serve no useful purpose to negotiate a contract with the appeal pending: (2) a letter from the Union to Respondent dated January 5, 1977, requesting Respondent is attempting to raise issues which were, or could have been, timely raised in the underlying representation proceeding and this it may not do. 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 proceedings 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 in this unfair labor practice proceeding.6s We shall, accordingly, 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 THE RESPONDENT Respondent is now, and has been at all times material herein, an Ohio corporation with an office and place of business located in Salem, Ohio, the only facility involved in this proceeding, where it is now, and has been at all times material herein, engaged in the manufacture of boat trailers, septic systems, and power transformers. Respondent annu- ally ships products valued in excess of $50,000 from its place of business in Salem, Ohio, directly to points located outside the State of Ohio. 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. certain specific information relevant and necessary for collective bargain- ing; and (3) a reply from Respondent to the Union dated January 7, 1977, refusing to provide such information until a court decision was rendered. Since a specific request is not required where, as here, a demand for bargaining would have been futile, Richardson Chemical Company, Allied Kelite Products Division, 222 NLRB 5 (1976), and since, in any event, a request for information is tantamount to a request for bargaining, Rod-Ric Corporation, 171 NLRB 922 (1968), enfd. 428 F.2d 948 (C.A. 5, 1970), we find the denials to be frivolous and the allegations regarding the various requests and refusals to be admitted to be true. 337 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, 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 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, including truckdrivers, shipping employees, and plant clerical employees at Respondent's Salem, Ohio, facility, but excluding all office clerical employees, salesmen, draftsmen, and professional employees, guards and supervisors as defined in the Act. 2. The certification On December 10, 1976, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 8, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on December 17, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. Respondent's Refusal To Bargain By letter dated January 3, 1977, Respondent, by its attorney, stated its intention to refuse to bargain with the certified Union. By letter dated January 5, 1977, the Union requested certain specific information with respect to wages and fringe benefits relevant and necessary for collective bargaining from Respon- dent and by letter dated January 7, 1977, Respon- dent refused to provide such information. Accordingly, we find that the Respondent has, since January 4, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit, and to provide information relevant and necessary for collective bargaining, and that by such refusals Respondent 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 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, and provide information relevant and necessary for collective bargaining. 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 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); Burnett 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. Sterling-Salem Corporation, a subsidiary of Katy Industries, 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, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including truckdrivers, shipping employees, and plant clerical employees at Respondent's Salem, Ohio, facility, but excluding all office clerical employees, salesmen, draftsmen, and professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of 338 STERLING-SALEM CORP. collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 17, 1976, 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 3, 1977, 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, and to provide information relevant and necessary for collective bargaining, 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)(l) 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 the Respondent, Sterling-Salem Corporation, a subsidiary of Katy Industries, Inc., Salem, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including truckdrivers, shipping employees, and plant clerical employees, at the Employer's Salem, Ohio, facility, but excluding all office clerical employees, salesmen, draftsmen, and professional employees, guards and supervisors as defined in the Act. (b) Refusing to provide the above-named labor organization, upon request, information relevant and necessary to the purpose of collective bargaining. (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 and provide the above-named labor organization, upon request, information rele- vant and necessary for collective bargaining. (b) Post at its Salem, Ohio, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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 United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide the above- named Union with information relevant and necessary for the purpose of collective bargaining. 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- 339 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employ- ees, including truckdrivers, shipping employ- ees, and plant clerical employees at Respon- dent's Salem, Ohio, facility, but excluding all office clerical employees, salesmen, drafts- men, and professional employees, guards and supervisors as defined in the Act. STERLING-SALEM CORPORATION, A SUBSIDIARY OF KATY INDUSTRIES, INC. 340