Leslie Metal Arts Co., Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1975

216 N.L.R.B. 929 (N.L.R.B. 1975)

LESLIE METAL ARTS COMPANY, INC. 929
Leslie Metal Arts Company, Inc. and International
Union, United Automobile, Aerospace and Agricul-
tural implement Workers of America (UAW).
Case 7--CA-11532
March 7, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on October 29, 1974, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served on
Leslie Metal Arts Company, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7, issued a complaint on November 4, 1974,
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 September 30,
1974, following a Board election in Case 7-RC-
12039, 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 October 15, 1974, 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 November 13, 1974, Respondent filed
its answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On December 2, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 23,
1974, 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 an opposition to the General
Counsel's motion and subsequently filed a supple-
mentary motion in opposition and in response to the
Notice To Show Cause.
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 and its response to
the Notice To Show Cause, Respondent disputes the
validity of the certification of the Union in the
underlying representation proceeding on the basis of
its objections therein and the Board's resolution of
those objections.
Our review of the record in Case 7-RC-12039
discloses that, in an election conducted pursuant to a
Stipulation for Certification Upon Consent Election,
the vote was 66 to 64 against the Union with 10
ballots challenged. After 8 of the 10 challenged
ballots were resolved by stipulation, the remaining 2
challenges were not determinative. The Union filed
timely objections to conduct affecting the results of
the election based upon a "captive audience"
meeting held by Respondent 2 days previous to the
election. After an investigation of the objection,
which disclosed other objectionable conduct, the
Regional Director ordered a hearing to resolve the
objections. On February 27, 1974, the Hearing
Officer issued his report on objections in which he
recommended that certain objections be sustained,
that others be overruled, and that a second election
be directed. Respondent filed timely exceptions to
the Hearing Officer's report and a supporting brief in
which it contended, as it did before the Hearing
Officer, that, the objections had not been properly
served and that they lacked sufficient specificity to
satisfy due process, and that the Hearing Officer's
findings were erroneous in several respects. The
Board, on May 24, 1974, issued a Decision, Order,
and Direction of Second Election, which upheld
objections to the election and directed another
election.
In the second election, conducted on July 17, 1974,
pursuant to the Board's Decision of May 24, 1974,
the Union won by a vote of 52 to 42 with 3 ballots
challenged. Respondent filed timely objections to
conduct affecting the results of the election in which
it alleged, in substance, that prior to the election: (1)
Union adherents initiated a rumor that production
standards would be increased unless the Union won
the election, and (2) that a union letter to employees
outlining the benefits of unionization "aggravated
I Official notice is taken of the record in the representation proceeding , 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
Case 7-RC-12039 , as the term "record" is dlfined in Secs . 102.68 and (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967);
102.69(8) of the Board's Rules and Regulations, Serves 8, as amended . See Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F .2d 683 (C.A. 4, 9(d) of the NLRA.
216 NLRB No. 158
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this conduct" referred to in the first objection. The
second objection also objected to the Union's use of
a sample ballot with a mark in the "YES" box under
the name of the Union.
After an investigation of the objections, the Acting
Regional Director issued his Report and Recommen-
dations on Objections in which he recommended that
the objections be overruled in their entirety and that
the Union be certified. On September 30, 1974, the
Board issued a Supplemental Decision and Certifica-
tion of Representative in which the Board adopted
the findings and recommendations of the Acting
Regional Director and certified the Union.
In its motion and supplementary motion in
opposition to the General Counsel's Motion for
Summary Judgment, Respondent reiterates the con-
tentions it advanced in its objections to the second
election . In addition, it again raises the contentions
with respect to the service and lack of specificity of
the Union's objections which it raised before the
Hearing Officer and in its exceptions to the Hearing
Officer's Report and Recommendations on Objec-
tions on the Union's objections to the first election
which were considered and rejected by the Board in
its May 24, 1974, Decision, Order, and Direction of
Second Election.
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(aX5) 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
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 issue3 which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
2 See Pittsburgh Plate Glasr Ca v. N.LRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Seca. 102 .67(f) and 102.69(c).
a In its answer to the complaint, Respondent denies having refused to
bargain with the Union . However, Respondent admits the allegation
contained in par. 14 of the complaint setting forth its letter of October 15,
1974, to the Union, in which it advised that it was not willing to meet for the
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Michigan corporation with its
principal office in Grand Rapids, Michigan, and
various plants in Grand Rapids and Middleville,
Michigan, is engaged in the manufacture, sale, and
distribution of steel stampings and assemblies and
related products. During the year ending December
31, 1973, Respondent purchased goods and materials
valued in excess of $50,000 which were delivered to
said plants in Grand Rapids, Michigan, directly from
points located outside the State of Michigan. During
the same period Respondent manufactured and sold
products valued in excess of $500,000, of which
products valued in excess of $50,000 were shipped
from said plants directly to points located outside the
State of Michigan.
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 Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), 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 production and maintenance employees,
including toolroom employees, employed by the
Respondent at its 3025 Breton Road, Grand
Rapids, Michigan, Plant #4; excluding all office
clerical and plant clerical employees, technical,
engineering and professional employees, drivers,
confidential employees, foremen, guards, and
supervisors as defined in the Act.
purpose of bargaining as requested by the Union as it felt the Board's
certification thereof was erroneous. In these circumstances , Respondent's
denial of the allegation that it refused and is refusing to bargain upon
request with the Union is stricken as frivolous and the allegation contained
in par. 15 of the complaint is deemed admitted as true.
LESLIE METAL ARTS COMPANY, INC. 931
2. The certification
On July 17, 1974, 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 bargain-
ing with the Respondent . The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on September 30, 1974, 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 October 7 and 15, 1974,
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 October 15, 1974, 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 October 15, 1974, 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(aX5) 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 commer-
ce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(aX5) 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.
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 commen-
ces 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. Leslie Metal Arts Company, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including toolroom employees, employed by the
Respondent at its 3025 Breton Road, Grand Rapids,
Michigan, Plant #4; excluding all office clerical and
plant clerical employees, technical, engineering and
professional employees, drivers, confidential employ-
ees, foremen, 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. Since September 30, 1974, 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 October 15, 1974, 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(aX5) 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.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
Leslie Metal Arts Company, Inc., Grand Rapids,
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 International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees,
including toolroom employees , employed by the
Respondent at its 3025 Breton Road, Grand
Rapids, Michigan, Plant #4; excluding all office
clerical and plant clerical employees, technical,
engineering and professional employees, drivers,
confidential employees, foremen, guards, and
supervisors 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-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Plant #4, at 3025 Breton Road,
Grand Rapids, Michigan , copies of the attached
notice marked "Appendix." 4 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 conspicu-
ous 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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."
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 Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), 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 production and maintenance employ-
ees, including toolroom employees, em-
ployed by the Respondent at its 3025 Breton
Road, Grand Rapids, Michigan, Plant #4;
excluding all office clerical and plant clerical
employees , technical, engineering and pro-
fessional employees, drivers, confidential
employees , foremen, guards, and supervisors
as defined in the Act.
LESLIE METAL ARTS
COMPANY, INC.
(Employer)