Leslie Metal Arts Co., Inc.

DECISIONS OF NATI()NAL LABOR RELATIONS BOARD Leslie Metal Arts Company, Inc. and International Union, United Automobile, Aerospace and Agri- cultrual Implement Workers of America (UAW). Case 7-CA-18107 November 17, 1980 DECISION AND ORDER BY MI MB1I RS JINKINS, PNI.I O, NI) TKRUISI)AI I Upon a charge filed on August 7, 1980, by Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Leslie Metal Arts Company, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on August 15, 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 (I) 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 June 23, 1980, following a Board election in Case 7-RC- 15314, 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 July 25, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union and to furnish it with certain necessary and relevant information, as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On August 26, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 19, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 25, 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 Sum- mary Judgment should not be granted. Respondent ()Official nriotlice is takcll of the record ill the rcpresen.ntiltil proceed- ing, Case 7 RC 15314, as the term "record" is defined in Secs. 11)268 and 1012.h9(g) of the Board's Rules and Regulations, Series 8. as amended See LT'V Eh'trylemn. Irc, 166 NLR 938 (1967). enfd 388X 2d 683 (4th Cir I968): (;olden Age Beverage Co., 167 Nl.R) 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Interypie Co. v. Pnllo. 269 V Supp 573 (D.C V; 1967), Iollett ('orp., 164 NLRB 378 (1967), cnffd. 397 '.2d 91 (7th Cir. 1968) Sec. 9(d) of the NLRA, as amended 253 NLRB No. 44 thereafter filed a response to the 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, Respondent admits the Union's request and its refusal to bar- gain and to furnish information which is necessary and relevant to the Union's role as exclusive bar- gaining representative, but in substance attacks the validity of the Union's certification on the basis of its exceptions to the Hearing Officer's report on the first election and its objections to the second election in the underlying representation proceed- ing. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. Review of the record herein, including the record in Case 7-RC-15314, discloses that on April 25, 1979, pursuant to a Stipulation for Certification Upon Consent Election, an election was held among the employees in the stipulated unit. The tally of ballots showed that, of approximately 278 eligible voters, 125 cast valid ballots in favor of, and 135 against, the Union; there were 2 chal- lenged ballots, an insufficent number to affect the tesults. On April 30, 1979, the Union filed timely objections to conduct affecting the results of the election. Following an investigation, the Regional Director, on May 3, 1979, issued an order requiring that a hearing be held on the Union's objections. After the hearing, the Hearing Officer recommend- ed that three of the Union's six objections be sus- tained, the remaining three be overruled, and that the election of April 25, 1979, be set aside and a new election directed. Respondent filed timely ex- ceptions to the report. On January 15, 1980, the Board adopted the Hearing Officer's report, and di- rected that a second election be conducted. The second election was held on February 13, 1980. The tally of ballots showed that, of approxi- mately 215 eligible voters, 104 cast valid ballots in favor of, and 72 against, the Union: there were 4 challenged ballots, an insufficient number to affect the results. On February 19, 1980, Respondent filed timely objections to conduct affecting the results of this election. Following an investigation, the Acting Regional Director, on March 27, 1980, rec- ommended that Respondent's objections be over- ruled in their entirety and that a Certification of Representative issue. Respondent filed timely ex- 326 l.SI.5IE MEtAI. ARTS COMI'ANY'. INC ceptions to the report. On June 23, 1980, the Board adopted the Acting Regional Director's report and certified the Union as the exclusive bargaining rep- resentative of the employees in the stipulated unit. Respondent is now contending that the Board erro- neously set aside the first election and directed the second election and erroneously overruled Re- spondent's objections to the second election. 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 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. THEI BUSINESS OF RESPONI)ENT Respondent, a Michigan corporation, is, and has been at all times material herein, engaged in the manufacture and nonretail sale of steel stampings and assemblies. Respondent's principal office and place of business is located at 3225 32d Street, SE., Grand Rapids, Michigan. Respondent also main- tains an office and place of business at 3075 Breton Street, SE., Grand Rapids, Michigan. Only the Breton Street facility is involved in this proceed- ing. During calendar year 1979, a representative period, Respondent sold and shipped goods valued in excess of $50,000 from its Breton Street facility directly to customers located outside the State of Michigan. 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. 2 Se Pmhurh Pulale (;/ a (Co v N.I.L.. . 313 t S 14h, 12 (1941). Rules and Rcgulaions of the Board, Scs 102 1(f andti 102 h9(c) 11. T111. LABOR OR(GANIZA'ION INVOI Vii) International Union, United Automobile, Acro- space and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. III. IHli tUINAIR ABOR PRACTICI-S A. lThe 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 full-time and regular part-time production and maintenance employees, including tool room employees, employed by Respondent at its Plant No. 5 located at 3075 Breton St., S.E., Grand Rapids, Michigan, but excluding all office clerical employees, plant clerical em- ployees, technical, engineering, and profession- al employees, drivers, confidential employees, salesmen, guards and supervisors as defined in the Act. 2. The certification On February 13, 1980, 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 7, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on June 23, 1980, 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 Respondents Refusal Commencing on or about July 11, 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, and to furnish it with certain information which is rele- vant and necessary to its role as the exclusive col- lective-bargaining representative. Commencing on or about July 25, 1980, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain ith the Union as the exclusive representative for col- lective bargaining of all employees in said unit, and to furnish the Union with said information. 327 I)3ICISI()NS () NATIONAINA. IAI()R RL.ATIONS BO)ARD) Accordingly, we find that Respondent has, since July 25, 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 has refused to furnish it with rele- vant and necessary information, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. IV. 11 I IltCI' OF IF1[ UNIFAIR I AOR PRACTICES UPON COMMERCI The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, 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 RMEDY 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 also order Respondent to fur- nish the Union with the relevant and necessary in- formation requested by it on July 11, 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/h/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. Leslie Metal Arts Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including tool room employees, employed by Respondent at its Plant No. 5 located at 3075 Breton St., SE., Grand Rapids, Michigan, but excluding all office clerical employees, plant clerical employees, technical, en- gineering, and professional employees, drivers, con- fidential employees, salesmen, 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 June 23, 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 July 25, 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, and to furnish the Union with information that is relevant and necessary to its role as the exclusive bargaining representative, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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. Leslie Metal Arts Company, Inc., Grand Rapids, Michigan, its officers, agents, successors, and as- signs, 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 Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), as the exclusive bargaining representative of its em- ployees in the following appropriate unit: 328 I.ESLIE MNIIAL ARTS COMPANY, INC. All full-time and regular part-time production and maintenance employees, including tool room employees, employed by Respondent at its Plant No. 5 located at 3075 Breton St.. S., Grand Rapids, Michigan, but excluding all office clerical employees, plant clerical em- ployees, technical, engineering, and professicn- al employees, drivers, confidential employees, salesmen, guards and supervisors as defined in the Act. (b) Refusing to furnish the Union with the infor- mation that it requested by letter dated July 11. 1980, which information is relevant and necessary to the Union's role as the exclusive hargaining rep- resentative of the employees in the bargaining unit described above. (c) In any like or related mariner interfering with, restraining. or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the follo\wing 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) Upon request, furnish the Union with the in- formation that it requested by letter dated July 11 1980, which information is relevant and necessary to the Union's role as the exclusive bargaining rep- resentative of the employees in the bargaining unit described above. (c) Post at Plant No. 5, 3075 Breton St., SE., Grand Rapids, Michigan, 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 im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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. :' In the ,-cril t his Orider i, nforcbd h .a .JIdgmcnt ,I' a t;rmct Silic, (.url ,I Appralk. hc . ord ill the 11odlt r rladinll g "'T ,tcd h. ()rdcr f the N tional I a.Ihr Rlioll BI aird" ,.al l retd -Po>i tPuru l i a Jdgm n i of t Unitedl Slat' ( urt l i AppI tca . Iforcig ;t1' o)rder it hilt Natim!il I hor R t-laron, I..itard (d) 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 NoII(I- To EP oit>s POSII.I) HY ORI)I.R OF IHi NA lION l LAHOR RI-AFlIONS (\OXRI) An Agency of the United States Government WI wti. NT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America (UAW), itas the exclusive repre- sentative of the employees in the bargaining unit described below. W'IE w v I NO I refuse to furnish the Union with the information that it requested by letter dated July 11. 1980, which information is rele- vant and necessary to the Union's role as the exclusive bargaining representative of the em- ployees in the bargaining unit described below. t'EV W l.i NOI ill any like or related mariner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WVI \wit , 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, enmbody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time produc- tion and maintenance employees, including tool room employees, employed by us at our Plant No. 5 located at 3075 Breton St., S.E., Grand Rapids, Michigan, but excluding all office clerical employees, plant clerical em- ployees, technical, engineering, and profes- sional employees, drivers, confidential em- ployees salesmen, guards and supervisors as defined in the Act. WEI wit., upon request, furnish the Union with the information that it requested by letter dated July 11, 1980, which information is rele- vant and necessary to the Union's role as the exclusive bargaining representative of the em- ployees in the bargaining unit described above. LESI.EI MIrAI. ARIS COMPANY . INC. 329