Jeffrey Mfg. Division

JEFFREY MANUFACTURING DIVISION Jeffrey Manufacturing Division, Dresser Industries, Inc. and United Steelworkers of America, AFL- CIO. Case 11 -CA-9128 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMHBERS JENKINS AND) PENEI.IIO Upon a charge filed by United Steelworkers of America, AFL-CIO, hereinafter called the Union, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 11, issued a complaint and notice of hearing on May 30, 1980, against Jeffrey Manufacturing Divi- sion, Dresser Industries, Inc., hereinafter called Re- spondent, alleging that Respondent violated Sec- tion 8(a)(1) and (5) of the Act by refusing to bar- gain with the Union as the exclusive representative of its production and maintenance employees at its Belton, South Carolina, facility. Copies of the charge and complaint and notice of hearing were served on Respondent and the Union. On or about June 9, 1980, Respondent filed its answer to the complaint, denying the commission of any unfair labor practices. On July 24, 1980, Re- spondent, the Union, and the General Counsel filed with the Board a stipulation of facts and jointly pe- titioned the Board to transfer this proceeding di- rectly to the Board for findings of fact, conclusions of law, and Order. The parties stipulated that they waived a hearing before an administrative law judge and agreed that the charge, complaint and notice of hearing, Respondent's answer to the com- plaint, and the stipulation of facts constitute the entire record in the case. On August 13, 1980, the Board issued an order approving the stipulation and transferring the proceeding to the Board. Thereafter, the General Counsel filed a brief. 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. The Board has considered the stipulation, includ- ing the exhibits, the brief, and the entire record in this proceeding, and hereby makes the following findings: 1. BUSINESS O1: THE RESPONDENT Respondent is now, and has been at all times ma- terial herein, a Delaware corporation with a plant in Belton, South Carolina, where it is engaged in the manufacture of mining industry conveyor com- ponents. During the past 12-month period, which period is representative of all times material herein, Respondent, in the course and conduct of its busi- 252 NLRB No. 84 ness operations, has manufactured, sold, and shipped goods and materials valued in excess of $50,000, which goods and materials were shipped by it directly to customers located in States other than the State of South Carolina, and, during the same period of time, Respondent has purchased goods and materials valued in excess of $50,000, which goods and materials were transported and delivered to it directly by suppliers located in States other than the State of South Carolina. The parties stipulated, and we find, that Re- spondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and we find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union, United Steelworkers of America, AFL-CIO, is a labor organization with the mean- ing of Section 2(5) of the Act. III. THE UNF AIR I.ABOR PRACTICES A. Facts On September 16, 1977, Union filed a petition for Certification of Representative in Case I -RC- 4416, naming Respondent as the Employer. The Regional Director for Region 11, on September 30, 1977, approved a Stipulation for Certification Upon Consent Election in Case 11-RC-4416, in the fol- lowing unit: All production and maintenance employees at the Company's Belton, S. C. plant; excluding all office clerical, professional and technical employees, all guards and/or watchmen, and supervisors as defined in the Act. A secret-ballot election was conducted in said unit on October 27, 1977, under the supervision of the Regional Director. The Union, on November 3, 1977, filed timely objections to conduct affecting the results of the election. On January 12, 1978, the Regional Direc- tor issued his Report on Objections and Chal- lenges, Direction, and Order Consolidating Cases in Cases I 1-RC-4416, 11-CA-7051, and 11-CA- 7337, wherein he recommended that three of the Union's objections be overruled and that a hearing be held to resolve the challenges to the ballots and the five remaining union objections. The Regional Director consolidated the Union's objections with the outstanding complaint proceedings in Cases 11- CA-7051 and 11-CA-7337. On or about January 25, 1978, Respondent filed exceptions to the Report on Objections and Challenges, Direction, and 631 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Consolidating Cases. The Board issued a Decision and Order Remanding for Hearing,' on February 10, 1978, in which the Regional Direc- tor's Report on Objections and Challenges, Direc- tion, and Order Consolidating Cases was adopted in all respects. On or about July 25, 1979, Administrative Law Judge Stanley N. Ohlbaum issued a Decision in Cases I l-CA-7051, 11-CA-7337, 11-CA-7596, and I -RC-4416, in which he recommended, inter alia, that the challenge to the ballot of William Ford, Jr., be sustained, that the challenge to the ballot of Walter Whitacre be overruled and that his ballot be opened and counted, and that a revised tally of ballots be served on the parties. On March 3, 1980, following timely exceptions filed by the General Counsel, the Union, and Respondent, and an an- swering brief in opposition to the exceptions filed by Respondent, the Board issued its Decision, Order, and Direction in Jeffrey Manufacturing Divi- sion, Dresser Industries, Inc,2 in which it, inter alia, ordered Respondent to bargain collectively with the Union, directed that the ballots of Terry Boyter, Walter Whitacre, and Larry Burgess be opened and counted, and, in the event the Union received a majority of the valid votes cast, it di- rected further that the Regional Director issue a Certification of Representative. The second revised tally of ballots was issued by the Regional Director on April 2, 1980. The Regional Director, on April 8, 1980, certified the Union as the exclusive bar- gaining representative of Respondent's employees in the unit described above. By letters to Respondent dated March 10 and April 10, 1980, respectively, the Union requested Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. By letter dated April 18, 1980, Respondent rejected the Union's request and declined to bargain collec- tively with the Union for the reasons set forth in Respondent's exceptions, supporting briefs, and its letter to the Union dated April 18, 1980. Respond- ent's stated reason for rejecting the Union's request to bargain is to obtain judicial review of the Board's certification of the Union pursuant to Sec- tion 10(f) of the Act. B. Contentions of the Parties The General Counsel contends that Respondent has violated Section 8(a)(5) and (1) of the Act by its refusal to bargain with the Union, because an employer's duty to bargain with a labor organiza- tion following issuance of a Board bargaining order Not reported in olumes of Board Decisions 2 248 NLRB 33 (1980) is not suspended pending appellate court review of the Board's Order.3 The General Counsel asserts that Respondent's bargaining obligation is estab- lished by the Board's decision in Jeffrey Manufac- turing, supra, in which the Board, inter alia, or- dered Respondent to bargain with the Union. Moreover, the General Counsel contends that in the absence of newly discovered or previously un- available evidence the Board may not reconsider, in an unfair labor practice proceeding, questions that have been disposed of in a prior representation proceeding. Respondent, in its answer to the complaint, admits that it has refused, and continues to refuse, to bargain with the Union because it has a good- faith doubt that the Union represents an uncoerced majority of its employees in a unit appropriate for collective bargaining, and contends that its refusal to bargain is solely for the purpose of exercising its right to obtain review of the Board's decision in Case 11-RC-4416 before the United States Court of Appeals for the Fourth Circuit. C. Discussion and Conclusion We find no merit in Respondent's contention that it has not violated Section 8(a)(5) and (1) of the Act because it need not bargain with the Union until it has obtained complete review of the previ- ous unfair labor practice proceeding. As we stated in Montgomery Ward, supra, it is well settled that collateral litigation does not suspend the duty to bargain under Section 8(a)(5) of the Act.4 Re- spondent has not offered any newly discovered or previously unavailable evidence in support of a ruling different than that of the Board in the prior proceeding. We find, therefore, that Respondent's continuing refusal, since April 18, 1980, to bargain with the Union violated 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. 3 Citing Montgomery Ward d Co.. Incorporated, 228 NLRB 1330 (1977). See E. H Limited, d/b/a Earringhouse Imports, 235 NLRB 1295 (1978) Sec. 10(g) of the Act provides, moreover, that the commencement of proceedings tinder Sec. 10(e) or (f), which provide for court review of Board orders, "shall not. unless specifically ordered by the Court, act as a stay of the Board's order." 632 JEFFREY MANUFACTURING DIVISION V. HE 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 take certain affirmative action designed to effectu- ate the policies of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Jeffrey Manufacturing Division, Dresser In- dustries, 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 Sec- tion 2(5) of the Act. 3. By failing and refusing to bargain collectively with the Union since April 18, 1980, as the duly designated representative of its employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. 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)(l) of the Act. 5. 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, Jeffrey Manufacturing Division, Dresser Industries, Inc., Belton, South Carolina, 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, as the exclusive bar- gaining representative of its employees in the above-described unit. (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 United Steel- workers of America, AFL-CIO, as the exclusive representative of all employees in the above-de- scribed appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. (b) Post at its Belton, South Carolina, facility copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 11, 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. (c) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. ' In the eent that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted bh Order of the National Labor Relations Board" shall read "Posted Pursu- ant Io aI Judgment of the United States court of Appeals Enforcing an Order of the National abor 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 em- ployees 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: 633 DIECISI()NS OF NAII()NAL. I.AI()R REI.ATIONS BOARD All production and maintenance employees at our Belton, South Carolina, plant; exclud- ing all office clericals, professional and tech- nical employees, all guards and/or watch- men, and supervisors as defined in the Act. JEI:I:RIEY MANUIACTURINGi DIVISION, DRiSSI!R INI)USTRIES, INC. 634