Northshore Fabricators and Erectors, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northshore Fabricators and Erectors, Inc. and Shop- men's Local Union 455, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO. Case 29-CA-5396 June 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on January 4, 1977, by Shopmen's Local Union 455, International Associa- tion of Bridge, Structural and Ornamental Ironwork- ers, AFL-CIO, herein called the Union, and duly served on Northshore Fabricators and Erectors, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, issued a complaint and notice of hearing on January 25, 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 7, 1976, following a Board election in Case 29-RC- 3182, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about November 29, 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 represen- tative, although the Union has requested and is requesting it to do so. On February 1, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and on February 17, 1977, Respon- dent submitted a letter of position. On February 22, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 7, 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 l Official notice is taken of the record in the representation proceeding, Case 29-RC-3182, 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); Intertpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of thenLRA, as amended. 230 NLRB No. 46 Summary Judgment should not be granted. On March 17, 1976, Respondent filed its Cross-Motion for Summary Judgment. 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 Motions for Summary Judgment In its answer, letter of position, and Cross-Motion for Summary Judgment, Respondent contends in substance that the certification is invalid because the election was conducted less than 10 days after the receipt of the Excelsior list in contravention of the Board's Rules and Regulations. In his Motion for Summary Judgment, counsel for the General Coun- sel contends that Respondent has not raised any issue which is properly litigable in an unfair labor practice proceeding and is merely seeking to reliti- gate issues decided by the Board in the representa- tion case, and, accordingly, that summary judgment should be granted. We agree. Review of the record herein, including that in the underlying representation case (29-RC-3182), shows that Local 819, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein the Petitioner, filed a petition seeking to represent a production and maintenance unit of Respondent's employees. The Union inter- vened on the basis of its contract with a multiem- ployer bargaining unit, of which Respondent alleged- ly was a member and asserted that a multiemployer unit was appropriate. After a hearing, the Regional Director issued his Decision and Direction of Election on June 15, 1976, in which he found that a unit limited to Respondent's production and mainte- nance employees was appropriate.2 By letter dated June 18, 1976, the Union requested that the Regional Director conduct the election on or before June 30, 1976, in order to avoid disenfranchising employees on strike against Respondent since July 1, 1975. The Excelsior list of eligible employees was received by the Regional Office and mailed on June 22, 1976, and, as that list did not include striking employees, a supplemental list of eligible strikers was subsequently mailed to the parties on June 24, 1976. The same day 2 In his Decision and Direction of Election the Regional Director also found that the timeliness and propriety of Respondent's withdrawal from the multiemployer bargaining unit had been resolved contrary to Respon- dent in a prior unfair labor practice proceeding (Case 29-CA4619) and could not be litigated in the representation case. Thereafter the Board denied the Union's request for review of this finding. 346 NORTHSHORE FABRICATORS & ERECTORS, INC. the Regional Director notified the parties that the election would be held on June 30 and Respondent, by telegrams to both the Regional Director and the Board, requested that the election be stayed.3 Respondent contended in substance that, by sched- uling the election for June 30, the Board was improperly shortening its requirement that the Excelsior list be supplied 10 days in advance of the election. On June 28, the Regional Director reaf- firmed the June 30 election date and, by telegraphic order of June 30, the Board denied the request to stay the election. In the election held on June 30, 1976, all 16 ballots cast were challenged. Both the Petitioner and Respondent filed similar objections regarding the timing of the election. Specifically, Petitioner alleged that it did not receive either the list of eligible voters or the election notice sufficiently in advance of the election. Respondent's single objection alleged that it did not have sufficient time to campaign among the strikers after announcement of their eligibility shortly before the election. After investigation, the Regional Director on September 1, 1976, issued his Supplemental Decision on Objections and Challenged Ballots in which he recommended overruling the objections in their entirety. With respect to the 16 challenges, he recommended that 8 be overruled, 5 sustained, and 3 remain unresolved. Accordingly, he ordered that the eight overruled challenged ballots be opened and counted and, if those eight ballots did not result in a determinative election, that a hearing be held on the three unresolved challenges. Treating together the objections of Respondent and the Petitioner relating to the timing of the election, the Regional Director found that, although the 6-day period between the June 24 notification and the June 30 election was shorter than the usual 25-day period regularly utilized in setting election dates following directions of election, (I) the Board had in similar unusual circumstances sanctioned the shortening of time periods, 4 (2) the affected employees had numerous opportunities to question all parties, and (3) the burden of the shortened period fell equally on all parties. Subsequently, Petitioner filed a request for review of the Regional Director's Supplemental Decision, contending, inter alia, that the overruling of its objection on the timing of the election was improper. On November 17, 1976, the Board denied Petition- 3 Petitioner filed a similar request with the Board. I The Regional Director basically relied on Kingsport Press, Inc., 146 NLRB 260 (1964), to justify shortening the usual time requirement to avoid disenfranchising the strikers. 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(0 and 102.69(c). 8 In its answer to the complaint, Respondent denies the request and er's request for review for lack of substantial issues warranting review. Respondent did not request review of the overruling of its similar objection. On November 23, 1976, the eight overruled challenged ballots were opened and counted; the revised tally showed that all eight were cast for the Union and that, therefore, the remaining three unresolved challenged ballots were not sufficient to affect the results of the election. Accordingly, the Regional Director certified the Union on December 7, 1976. It thus appears that Respondent is attempt- ing to raise issues which had been raised or could have been raised in the underlying representation case. 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 proceeding.5 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.6 We shall, accordingly, deny Respon- dent's cross-motion and grant the General Counsel's 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 New York corporation with its principal office and place of business at 2612 Chestnut Street, Ronkonkoma, New York, herein called the Ronkon- koma plant, where it is engaged in the shop fabrication and jobsite erection of steel and orna- mental metal products. During the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business, purchased and caused to be transported and delivered to its Ronkonkoma plant iron, steel, refusal to bargain. Respondent's uncontroverted letter of position, attached to the Motion for Summary Judgment as Resp. Exh. Q, states that, for the purposes of the Motion for Summary Judgment, Respondent would not contest the allegations of a request and refusal. As this letter in effect amends Respondent's answer, we accordingly deem those allegations of the complaint concerning a request and refusal to be admitted to be true. 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and related products, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transport- ed and delivered to its Ronkonkoma plant in interstate commerce directly from States other than the State in which it is located and which were transported and delivered to it and received from other enterprises located in New York, each of which other enterprises had received the said goods and materials in interstate commerce directly from States other than the State in which it is located. 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. II. THE LABOR ORGANIZATION INVOLVED Shopmen's Local Union 455, International Associ- ation of Bridge, Structural and Ornamental Iron- workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 11. 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 production and maintenance employees of Respondent employed at its Ronkonkoma plant, exclusive of all erectors, office clerical employees, guards and supervisors as defined in Section 2(11) of the Act. 2. The certification On June 30, 1976, 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 29, 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 December 7, 1976, 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 November 29, 1976, and continuously since on or about December 10, 1976, through January 6, 1977, and all times thereafter, the Union has requested Respondent to bargain collec- tively with it as the exclusive collective-bargaining representative of all the employees in the above- described unit. Commencing on or about November 29, 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 collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 29, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX)(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. 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: 348 NORTHSHORE FABRICATORS & ERECTORS, INC. CONCLUSIONS OF LAW 1. Northshore Fabricators and Erectors, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Shopmen's Local Union 455, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent employed at its Ronkonkoma plant, exclusive of all erectors, office clerical employees, guards and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 7, 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 November 29, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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, Northshore Fabricators and Erectors, Inc., Ronkon- koma, New York, 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 Shopmen's Local Union 445, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of Respondent employed at its Ronkonkoma plant, exclusive of all erectors, office clerical employees, guards and supervisors as defined in Section 2(11) of the Act. (b) 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) Post at its Ronkonkoma, New York, plant copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 29, 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, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29, 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 Shop- men's Local Union 455, International Association of Bridge, Structural and Ornamental Ironwork- ers, AFL-CIO, 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 employees 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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- 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 of Respondent employed at its Ronkon- koma plant, exclusive of all erectors, office clerical employees, guards and supervisors as defined in Section 2(11) of the Act. NORTHSHORE FABRICATORS AND ERECTORS, INC. 350