Brom Machine & Foundry Co.

National Labor Relations Board - Board Decisions

Jun 6, 1977

229 N.L.R.B. 1272 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brom Machine & Foundry Co. and International
Molders and Allied Workers Union, Local 63.
Case 18-CA-5259
June 6, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Upon a charge filed on February 1, 1977, by
International Molders and Allied Workers Union,
Local 63, herein called the Union, and duly served
on Brom Machine & Foundry Co., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 18, issued a complaint on February 15, 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 January 4,
1977, following a Board election in Case 18-RD-737,
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 January 27, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On February 22, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On March 15, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 28,
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
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause and a Motion for Summary Judgment in its
favor, entitled "Memorandum Incorporating Re-
quest for Summary Judgment and Opposing General
Counsel's Motion for Summary Judgment."
' Official notice is taken of the record in the representation proceeding,
Case 18-RD-737, 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
229 NLRB No. 183
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 Motion for Summary Judgment
In its answer to the complaint, its response to the
Notice To Show Cause, and its Motion for Summary
Judgment, Respondent denies the validity of the
Union's certification and contends that the challeng-
es to three ballots should have been overruled and
the ballots counted. Respondent also requests that
summary judgment be granted in its favor and that
the complaint be dismissed with prejudice.
Review of the record herein, including the record
in Case 18-RD-737, reveals that on May 21, 1976,
pursuant to a Stipulation for Certification Upon
Consent Election, an election was held in the
appropriate unit. The tally of ballots showed that 19
votes were cast for and 17 against the Union and 3
ballots were challenged.
On June 17, 1976, the Regional Director issued his
report on challenged ballots and recommendation
that certification of representative issue in which he
sustained the challenges to the three challenged
ballots and recommended that the Union be certi-
fied. Thereafter, Respondent filed timely exceptions
to the Regional Director's report alleging that the
challenges should be overruled and the three ballots
counted.
On January 4, 1977, the Board issued a Decision
and Certification of Representative (227 NLRB 690)
in which it adopted the Regional Director's recom-
mendations and certified the Union as the exclusive
bargaining representative of the employees in the
appropriate unit.
It thus appears that Respondent is merely attempt-
ing to relitigate issues which were raised and
determined adversely to it in the underlying repre-
sentation 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.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
(C.A. 5, 1969): Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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 102.69(c).
1272
BROM MACHINE & FOUNDRY CO.
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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the General Counsel's Motion for Summary
Judgment and deny Respondent's Motion for Sum-
mary Judgment in its favor.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Brom Machine & Foundry Co. is a Minnesota
corporation engaged in the manufacture of Nihard
and white iron castings in Winona, Minnesota.
During the past year, a representative period, the
Employer purchased goods valued in excess of
$50,000 from suppliers directly outside the State of
Minnesota. Purchases valued in excess of $50,000
were shipped and received from points directly
outside the State of Minnesota.
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
International Molders and Allied Workers Union,
Local 63, 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time production
and maintenance employees, excluding office
clerical employees, guards and supervisors as
defined in the National Labor Relations Act, as
amended.
2. The certification
On May 21, 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 18 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on January 4, 1977, 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 12, 1977, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 27, 1977, and continu-
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since January 27, 1977, 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(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 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.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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:
CONCLUSIONS OF LAW
1. Brom Machine & Foundry Co. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Molders and Allied Workers
Union, Local 63, 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, excluding office clerical
employees, guards and supervisors as defined in the
National Labor Relations Act, as amended, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since January 4, 1977, 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 27, 1977, 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, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) 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)(1) of the Act.
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 Pursuant to a
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 Respondent,
Brom Machine & Foundry Co., Winona, Minnesota,
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 International Mold-
ers and Allied Workers Union, Local 63, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees, excluding office
clerical employees, guards and supervisors as
defined in the National Labor Relations Act, as
amended.
(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 Winona, Minnesota, plant copies of
the attached notice marked "Appendix." 3 Copies of
said notice, on forms provided by the Regional
Director for Region 18, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 18, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1274
BROM MACHINE & FOUNDRY CO.
MEMBER WALTHER, dissenting:
For the reasons previously expressed in my
dissenting opinion in the underlying representation
proceeding, Brom Machine and Foundry Co., 227
NLRB 690 (1977), I would not have certified the
Charging Party and would grant Respondent's
Motion for Summary Judgment. I dissent from my
colleagues' finding of a violation herein.
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 Inter-
national Molders and Allied Workers Union,
Local 63, 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
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 full-time and regular part-time pro-
duction and maintenance employees, ex-
cluding office clerical employees, guards and
supervisors as defined in the National Labor
Relations Act, as amended.
BROM MACHINE &
FOUNDRY CO.
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