Jeffrey Mfg. Division

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 631 (N.L.R.B. 1980)

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."
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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