L. B. Foster Co.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 956 (N.L.R.B. 1972)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. B. Foster Company and Shopmen 's Local Union No.
694 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO. Case 23-CA--4333
October 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge and amended charge filed on
May 5, 1972, and May 19, 1972, respectively, by
Shopmen's Local No. 694 of the International Associ-
ation of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, herein called the Union, and
duly served on L. B. Foster Company, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 23, issued a complaint on May 31, 1972,
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 Na-
tional Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing before a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 17,
1971, following a Board election in Case 23-RC-3493
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' and that,
commencing on or about April 18, 1972, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On June 7, 1972, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On June 16, 1972, counsel for the General Coun-
sel filed directly with the Board a Motion for Summa-
ry Judgment. Subsequently, on June 21, 1972, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
'Official notice is taken of the record in the representation proceeding,
Case 23-RC-3493, as the term "record" is defined in Secs . 102.68 and 102
69(f) of the Board 's Rules and Regulations , Series 8, as amended See LTV
Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C A 4, 1968),
Golden Age Beverage Co, 167 NLRB 151; Intertype Co v. Penello, 269 F
Supp 573 (D.C. Va., 1967), Follett Corp., 164 NLRB 378, enfd 397 F 2d 91
(C A 7, 1968), Sec. 9(d) of the NLRA
not be granted. Respondent failed to file 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, Respondent de-
nies the validity of the Union's certification in Case
23-RC-3493 as the exclusive bargaining representa-
tive of the employees in the appropriate unit. Absent
the filing of a response to the Board's Notice To Show
Cause, it would appear that the Respondent is con-
tending that it is not obligated to bargain with the
Union because the certification is invalid in that the
Board erroneously overruled challenges to the ballots
and improperly counted the ballots in determining the
Union's majority. We find no merit in this contention.
The record herein shows that, on October 16,
1970, an election was held pursuant to a Stipulation
for Certification Upon Consent Election in Case 23-
RC-3493. Of the 31 eligible voters, 5 voted for and 6
against the Union and 14 were challenged, including
6 voters alleged in Case 23-CA-3734 to have been
discriminatorily discharged by the Respondent. The
Acting Regional Director's investigation found that
the challenged ballots raised substantial and material
issues of fact and credibility warranting a hearing and
by order of December 4, 1970, he consolidated Cases
23-RC-3439 and 23-CA-3734 for the purpose of
hearing by a Trial Examiner.
On March 29, 1971, the Trial Examiner issued his
Decision in which he overruled the challenges to 7 of
the 14 votes, including 5 of the 6 alleged discrimina-
tees. Thereafter, the Respondent and the General
Counsel filed timely exceptions to the Decision. On
July 29, 1971, the Board issued its Decision and Order
(192 NLRB No. 45) in which it adopted, inter alia, the
findings, conclusions, and recommendations of the
Trial Examiner and severed the representation case
with a remand to the Regional Director to open and
count the seven ballots and to issue the appropriate
certification.
The revised tally shows that 10 employees voted
for, and 8 voted against, the Union. On August 17,
1971, the Union was certified as the exclusive bargain-
ing representative of the employees in the appropriate
unit.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding alleg-
ing a violation of Section 8(a)(5) is not entitled to
199 NLRB No. 130
L. B. FOSTER COMPANY 957
relitigate issues which were or could have been litigat-
ed in a prior representation proceeding .2
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent 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.3 We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
tional Association of Bridge , Structural and Orna-
mental Iron Workers, AFL-CIO, is a labor organiza-
tion 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 -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All production and maintenance employees
employed by the Employer at its plants located
at 6500 Langfield Road and 4825 Homestead
Road, Houston, Texas, excluding all other em-
ployees, including all office clerical employees,
draftsmen, engineers, guards, watchmen and su-
pervisors as defined in the Act.
Respondent is, and has been at all times material
herein, a Pennsylvania corporation having its princi-
pal office and place of business at Pittsburgh, Penn-
sylvania, and having other facilities in various States
including a facility at Houston, Texas, where it main-
tains certain yards and ancillary facilities for the fab-
rication4 or processing, storage, and distribution of
industrial pipe and related products. During the past
12 months, a representative period, Respondent pur-
chased and delivered or caused to be delivered to its
Houston, Texas, facilities directly in interstate com-
merce from places outside the State of Texas, goods
and materials valued in excess of $50,000, and, during
the same period, Respondent sold and shipped from
its Houston, Texas, facilities directly in interstate
commerce to customers outside the State of Texas
products valued in excess of $50,000.
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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Shopmen's Local Union No. 694 of the Interna-
2 See Pittsburgh Plate Glass Co. v. N.LR B, 313 U S 146, 162 (1941); Rules
and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
3 In its answer to the complaint , Respondent asserts that it is unable to
admit or deny whether the Union is, or has been , a labor organization within
the meaning of the Act However , this issue has been raised and determined
in the underlying representation case and is not litigable herein.
° Respondent's answer admits the commerce allegation of the complaint
although it submits that it is not a "fabricator" in the technical sense of the
term , but would properly be classified as a "mill jobber "
2. The certification
On October 16, 1970, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 23, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 17, 1971, and the Union contin-
ues 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 April 11, 1972, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about April 18, 1972, and continuing at all times
thereafter to date, the Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since April 18, 1972, 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, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 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 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 appro-
priate unit, and, if an understanding is reached, em-
body 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 certification
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; Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert.
denied 379 U.S. 817; Burnett Construction Company,
149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. L. B. Foster Company is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Shopmen's Local Union No. 694 of the Inter-
national Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, 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
6500 Langfield Road and 4825 Homestead Road,
Houston, Texas, excluding all other employees, in-
cluding all office clerical employees, draftsmen, engi-
neers, guards, watchmen 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. Since August 17, 1972, the above-named labor
organization has been and now is the certified and
exclusive 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.
5. By refusing on or about April 18, 1972, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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.
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 Rela-
tions Board hereby orders that Respondent, L. B.
Foster Company, 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 condi-
tions of employment with Shopmen's Local Union
No. 694 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees
employed by the Employer at its plants located
at 6500 Langfield Road and 4825 Homestead
Road, Houston, Texas, excluding all other em-
ployees, including all office clerical employees,
draftsmen, engineers, guards, watchmen and su-
pervisors as defined in the Act.
(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-
L. B. FOSTER COMPANY
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its "Old" yard (Homestead Road) and
its "New" yard (Langfield Road) plants in Houston,
Texas, copies of the attached notice marked "Appen-
dix.", Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, 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 23,
in writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
959
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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employ-
ees employed by the Employer at its plants
located at 6500 Langfield Road and 4825
Homestead Road, Houston, Texas, excluding
all other employees, including all office clerical
employees, draftsmen, engineers, guards,
watchmen and supervisors as defined in the
Act.
L. B. FOSTER COMPANY
(Employer)
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
Shopmen's Local Union No. 694 of the Interna-
tional Association of Bridge, Structural and Or-
namental Iron Workers, AFL-CIO, as the
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone 713-226-
4296.