Boiler Tube Co.

National Labor Relations Board - Board Decisions

Nov 9, 1979

246 N.L.R.B. 438 (N.L.R.B. 1979)

DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
Boiler Tube Company of America and International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO. Case
I1 CA-8440
November 9, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
ANI) PENELLO
Upon a charge filed on June 28, 1979, by Interna-
tional Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL-CIO,
herein called the Union, and duly served on Boiler
Tube Company of America, herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region
11, issued a complaint on July 12, 1979. 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 adminis-
trative law judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 29, 1979, fol-
lowing a Board election in Case ll-RC-4652, 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 April 20, 1979, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. The
complaint also alleges that on or about May 1, 1979,
without prior notice to the Union and without afford-
ing the Union an opportunity to negotiate and bar-
gain, Respondent promulgated, distributed, and put
into effect revised job descriptions for the position of
crew leader. On July 23, 1979, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On August 24, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
i Official notice is taken of the record in the representation proceeding.
Case ll RC-4652, 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 Elecrrrosystems, 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 (D.C. Va. 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA. as amended.
mary Judgment. Subsequently, on September 4, 1979,
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. Respondent thereafter filed a
response to 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 and its response to
the Notice To Show Cause, Respondent admits its
refusal to bargain and its unilateral actions with re-
spect to the position of crew leader, but contends that
it is not obligated to bargain because the unit for
which the Union is certified is not appropriate. In this
regard Respondent, in substance, argues that the unit
is inappropriate because it includes crew leaders who
Respondent contends are supervisors within the
meaning of Section 2(11) of the Act. The General
Counsel contends that Respondent is improperly
seeking to relitigate an issue which was raised and
decided in the underlying representation case. We
agree with the General Counsel.
The record in Case I l-RC-4652 establishes that,
after a hearing in which Respondent participated and
presented evidence in support of its position, the Act-
ing Regional Director for Region I I issued on March
26, 1979, his Decision and Direction of Election in
which he found that the crew leaders were not super-
visors and were properly included in the unit. On
April 8, 1979, Respondent filed with the Board a re-
quest for review in which it argued that the crew lead-
ers were supervisors and had to be excluded. On April
18, 1979, the Board denied the request for review as
raising no substantial issues warranting review.
It is well settled that in the absence of newly dis-
covered 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.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence," nor does it allege that
2See Pittshurgh Plate Glass Co v NL RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c).
3 We have examined the affidavit and the job description Respondent sub-
mitted in opposition to the Motion fr Summary Judgment, and find that
they do not contain any evidence that was not or could not have been
presented in the prior representation proceeding.
246 NLRB No. 69
438
BOIl. R TUBE COMPANY
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 prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion tor Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDIN(;S ()o FA(.I
I. THE BUSINESS O1 RI:SP()NI)INI
Respondent is a Pennsylvania corporation with a
plant in Lyman, South Carolina. where it is engaged
in the fabrication of boiler tube parts and assemblies
and the distribution of boiler tubes. In the normal
course and conduct of its business operations de-
scribed above, Respondent annually purchases and
receives goods valued in excess of $50,000 directly
from suppliers located outside the State of South
Carolina and annually ships goods value in excess of
$50,000 directly to points outside the State of South
Carolina.
We find, on the basis of the foregoing, that Respon-
dent 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 INVOLVE)
International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO. is a labor organization within the mean-
ing of Section 2(5) of the Act.
111. 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, in-
cluding crew leaders, field employees, and qual-
ity control employees, at the Respondent's Ly-
man, South Carolina, plant, excluding all office
clerical employees, managerial employees, pro-
fessional employees, technical employees, over-
the-road truckdrivers, watchmen, guards, and su-
pervisors as defined by the Act.
2. The certification
On April 20, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector tfor Region II, designated the Union as their
representative for the purpose of collective bargaining
with Respondent.
On April 27, 1979, Respondent filed timely objec-
tions to conduct affecting the results of the election.
On May 29, 1979, the Regional D)irector for Region
I 11 issued a Supplemental Decision and Certification
of Representative in which he overruled Respondent's
objections and certified the Union as the collective-
bargaining representative of the employees in said
unit. Respondent filed no exceptions to the Supple-
mental Decision and Certification, and the Ulnion
continues to be the exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Unilateral Changes, the Request To Bargain.
and Re.spontent 's RefiIsal
On or about May 1, 1979, while its objections to
the election were pending, Respondent, without prior
notice to the Union and without affording the Union
an opportunity to negotiate and bargain, promul-
gated, distributed, and put into effect revised job de-
scriptions for the position of crew leader. This posi-
tion was within the unit in which the election was
held and the Union was subsequently certified. By
making such unilateral changes in terms and condi-
tions of employment during the pendency of objec-
tions to an election which eventually resulted in the
certification of the Union, Respondent refused to bar-
gain in violation of Section 8(a)(5) and (1) of the Act.
W. R. Grace & Co., Construction Products Division,
230 NLRB 617, 618 (1977), enfd. in pertinent part
571 F.2d 279, 282 283 (5th Cir. 1978).
Commencing on or about June 11, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
June II11, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, 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, on or
about May 1, 1979, and June 11, 1979, and at all
times thereafter, refused to bargain collectively with
the Union as the exclusive representative of the em-
ployees in the appropriate unit, and that, by such re-
fusal, Respondent has engaged in and is engaging in
439
DI)0ECISIONS OF NATIONAI. LABOR RELATIONS BOARD
unfair labor practices within the meaning of Section
8(a)(5) and (1) of' the Act.
IV. THE EFF'CIr OF I HE UNFAIR L.ABOR PRA(II('ES
UPON ('OMMER(CE
The activities of Respondent set forth in section
Ill, above, occurring in connection with its operations
described in section I. above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. TE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
We shall also order Respondent to refrain from mak-
ing unilateral changes affecting the employees' terms
of employment without bargaining with the Union.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/bla Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction 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. Boiler Tube Company of America is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding crew leaders, field employees, and quality
control employees, at the Respondent's Lyman,
South Carolina, plant, excluding all office clerical em-
ployees, managerial employees, professional employ-
ees, technical employees, over the-road truckdrivers,
watchmen, 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 the Act.
4. By making unilateral changes in terms and con-
ditions of employment on or about May 1, 1979, dur-
ing the pendency of objections to an election which
eventually resulted in the certification of the above-
named labor organization as the exclusive bargaining
representative of all the employees of Respondent in
the appropriate unit, Respondent has refused to bar-
gain and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
5. Since May 29, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of' collective
bargaining within the meaning of Section 9(a) of the
Act.
6. By refusing on or about May 1, 1979, and June
11. 1979, and at all times thereafter, to bargain collec-
tively 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(a)(5) of the
Act.
7. By the aforesaid refusals to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 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 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 Rela-
tions Board hereby orders that the Respondent,
Boiler Tube Company of America, Lyman, South
Carolina, 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 con-
ditions of employment with International Brother-
hood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
440
BOILER TUBE COMPANY
All production and maintenance employees, in-
cluding crew leaders, field employees, and qual-
ity control employees, at the Respondent's Ly-
man, South Carolina, plant, excluding all office
clerical employees, managerial employees, pro-
fessional employees, technical employees, over-
the-road truckdrivers, watchmen, guards, and su-
pervisors as defined by the Act.
(b) Changing terms of employment of its employ-
ees in the appropriate unit without notifying the
above-named labor organization and giving it an op-
portunity to bargain collectively about such proposed
changes.
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Lyman, South Carolina, plant copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region II1, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region I 1, in
I In the event that this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
Notic(E To EMPI.OYI:IS
POSTED BY ORI)ER OF l1IE
NATIONAl LABOR RI:t.ATIONS BOARD
An Agency of the United States Government
WE WvvdILL Nor refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers,
AFL -CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL. NOI change terms of employment of
our employees in the appropriate bargaining unit
without notifying the above-named Union and
giving it an opportunity to bargain collectively
about such proposed changes.
WE WILL NO'I' 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 Wll., upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed 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
agreement. The bargaining unit is:
All production and maintenance employees,
including crew leaders, field employees, and
quality control employees, at the Employer's
Lyman, South Carolina, plant, excluding all
office clerical employees, managerial employ-
ees, professional employees, technical employ-
ees, over-the-road truckdrivers, watchmen,
guards and supervisors as defined by the Act.
BOILER TUBE COMPANY OF AMFRI('A
441