Brazeway, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1981

256 N.L.R.B. 258 (N.L.R.B. 1981)

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brazeway, Inc. and United Steelworkers of America,
AFL-CIO. Case 7-CA-18853
June 1, 1981
DECISION AND ORDER
Upon a charge filed on February 3, 1981, by
United Steelworkers of America, AFL-CIO-CLC,
herein called the Union, and duly served on
Brazeway, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 7,
issued a complaint on February 4, 1981, 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 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 January 14,
1981, following a Board election in Case 7-RC-
15905, 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 January
30, 1981, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On Febru-
ary 12, 1981, Respondent filed its answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint.
On March 20, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 25,
1981, 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
has not filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
I Official notice is taken of the record in the representation proceed-
ing, Case 7-RC-15905, as the term "record" is defined in Secs. 102.68
and 102.6
9
(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
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Inrerrype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
256 NLRB No. 39
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, but denies that the Union is the exclusive col-
lective-bargaining representative of the employees
in the unit described below.
Review of the record herein, including the
record in Case 7-RC-15905, reveals that on April
28, 1980, the Union filed a petition seeking to rep-
resent certain employees of Respondent. The par-
ties executed a Stipulation for Certification Upon
Consent Election which was approved by the Re-
gional Director on June 6, 1980.
On July 10, 1980, a secret-ballot election was
conducted among Respondent's employees in the
following appropriate unit:
All production and maintenance employees
employed by the Employer at its plants locat-
ed at 2711 East Maumee Street and 2011 West
Beecher, Adrian, Michigan, including tool
room employees and inspectors; but excluding
draftsmen, truck drivers, office clerical em-
ployees, guards and supervisors as defined in
the Act.
The tally was 76 for, and 70 against, the Union and
2 challenged ballots were cast, a number insuffi-
cient to affect the results. Thereafter, Respondent
filed timely objections on which a hearing was
held and, on September 29, 1980, the Hearing Offi-
cer issued his report, which recommended that Re-
spondent's objections be overruled and that the
Union be certified as the exclusive bargaining rep-
resentative for the unit described herein. Respond-
ent filed exceptions to the report and, on January
14, 1981, the Board issued a Decision and Certifica-
tion of Representative wherein it adopted the
Hearing Officer's findings and recommendations
and certified the Union.
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
2 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 .6 9(c).
BRAZEWAY, INC. 259
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
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a cor-
poration organized and existing by virtue of the
laws of the State of Michigan, with its principal
place of business and factories located in Adrian,
Michigan, has been engaged in the manufacture,
sale, and distribution of aluminum tubing and
tubing parts for the air-conditioning and refrigera-
tion industries. During the 12 months preceding is-
suance of the complaint, Respondent, in the course
and conduct of its business operations, received
gross revenues in excess of $1 million and sold
goods and materials valued in excess of $50,000 to
customers located outside the State of Michigan
and caused said goods and materials to be shipped
directly to points outside the State of Michigan
from its Adrian, Michigan, plants.
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.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO-
CLC, 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by the Employer at its plants locat-
ed at 2711 East Maumee Street and 2011 West
Beecher, Adrian, Michigan, including tool
room employees and inspectors; but excluding
draftsmen, truck drivers, office clerical em-
ployees, guards and supervisors as defined in
the Act.
2. The certification
On July 10, 1980, 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 7, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on January 14, 1981, 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 January 21, 1981, 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. Com-
mencing on or about January 30, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
January 30, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 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.
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
BRAZEWAY, INC.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached, embody such understanding in a signed
agreement.
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/b/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. Brazeway, 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-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Employer at its plants located at
2711 East Maumee Street and 2011 West Beecher,
Adrian, Michigan, including tool room employees
and inspectors; but excluding draftsmen, truck driv-
ers, office clerical employees, 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 January 14, 1981, 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 30, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning 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,
Brazeway, Inc., Adrian, Michigan, 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-CLC, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
employed by the Employer at its plants locat-
ed at 2711 East Maumee Street and 2011 West
Beecher, Adrian, Michigan, including tool
room employees and inspectors; but excluding
draftsmen, truck drivers, office clerical em-
ployees, guards and supervisors as defined in
the Act.
(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 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) Post at its Adrian Michigan, facilities 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 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-
3 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
BRAZEWAY, INC. 261
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) 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
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-CLC, 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 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:
All production and maintenance employees
employed by the Employer at its plants lo-
cated at 2711 East Maumee Street and 2011
West Beecher, Adrian, Michigan, including
tool room employees and inspectors; but ex-
cluding draftsmen, truck drivers, office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
BRAZEWAY, INC.
RAZEWAY, INC.
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