Malleable Iron Range Co.

National Labor Relations Board - Board Decisions

Aug 21, 1979

244 N.L.R.B. 485 (N.L.R.B. 1979)

MAl.l.FAB.t IRON RANGE C(OMPANY
Malleable Iron Range Company and Office and Pro-
fessional Employees International Union, Local 39,
AFL-C'IO-CLC. Case 30 (CA 5206
August 21. 1979
DECISION AND ORDER
BY MEMBILRS JNKINS. MURPHY. AND) TRUISI)AI.I
Upon a charge filed on May 8. 1979, by Office and
Professional Employees International Union, Local
39, AFL-CIO-CLC, herein called the Union. and
duly served on Malleable Iron Range Company,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 30, issued a complaint on May 17.
1979, 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 com-
plaint alleges in substance that on April 5, 1979, fol-
lowing a Board election in Case 30-RC 3482. 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 May 1, 1979, and at all times thereafter.
Respondent has refused, and continues to date to re-
fuse. to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
May 29. 1979, Respondent filed a motion to dismiss
the complaint because it failed to set forth a notice of
hearing or in the alternative to fix an answer date. On
June 8, 1979. Respondent filed its answer to the com-
plaint admitting in part. and denying in part. the alle-
gations in the complaint. 2
On June 25. 1979, counsel fr the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 29. 1979, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
IOfficial notice s taken of the record in the representation proceeding.
Case 30 RC 3482. 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 Electro svrtems, 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): Intertpe Co. . Penellv, 269 F.Supp. 573 DC.Va. 1967):
Folettrr Corp. 164 NLRB 378 (19671, enld. 397 F.2d 91 (7th (ir. 1968)1 Sec
9(d) of the NLRA. as amended.
2 Thus, it appears Respondent abandons its motion to dismiss the com-
plaint.
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed 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 fotllowing:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and opposition to
the Motion tfor Summary Judgment, Respondent ad-
mits that the Union has requested that it bargain and
that it was refused to do so. but contends that the
certification of the Union is invalid because the unit
certified is inappropriate for the purposes of collective
bargaining.
Review of the record herein. including that in the
representation proceeding, Case 30 RC 3482., estah-
lishes that, upon a petition duly filed under Section
9(c) of the Act, a hearing was held before a hearing
officer of the National Labor Relations Board. There-
after, the Regional Director issued a Decision and
Direction of Election, wherein he found that the peti-
tioned-for unit of all full-time and regular part-time
office and clerical employees, technical employees.
and professional employees employed at the Employ-
er's Beaver Dam, Wisconsin, flicility. but excluding
professional. managerial. and confidential employees,
outside sales personnel, guards and supervisors as de-
fined in the Act, and all other employees in hargain-
ing units represented by other labor organizations.
constitutes an appropriate unit for the purposes of
collective bargaining, and directed that an election bh
secret ballot be conducted among the employees in
that unit. The Regional Director further directed that
a separate ballot be used for recording the vote of the
one professional employee and that, if said employee
did not vote for inclusion in the unit with nonprofes-
sional employees. a unit confined to office, clerical.
and technical employees. excluding professional em-
ployees. would be appropriate for the purposes of col-
lective bargaining.
Respondent filed a timely request for review and
brief in support of the request for review of the Re-
gional Director's Decision and Direction of Election,
alleging, in substance, that the Regional Director
made erroneous factual conclusions that a number of
employees were not managerial employees or supervi-
sors and that, by including these employees in the
unit, the Regional Director departed from reported
precedent requiring that managerial employees be ex-
cluded from the collective-bargalning unit. By tele-
244 NLRB No. 64
485
I)I-('ISIONS ()F NATIONAL. I.ABOR RELATIONS BOARI)
graphic order of March 22. 1979. the Board denied
Respondent's request for review.
On March 28. 1979, a secret-ballot election was
conducted among employees in the aforementioned
bargaining unit. The one professional eligible voter
cast a valid ballot against inclusion with nonprofes-
sionals. With respect to the remaining ballots, the
tally was 40 fr, and 15 against, the Union: there
were no challenged ballots. Thus, a majority of' the
employees Respondent in the appropriate unit, ex-
cluding professional employees, selected the Union as
their representative for purposes of collective bargain-
ing. On April 5, 1979. the Regional Director issued a
Certification of Representative.
It is well settled that in the absence of newly dis-
covered 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.
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly 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
I. IHIE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation with its prin-
cipal place of business in Beaver Dam, Wisconsin, is
engaged in the manufacturing of castings and appli-
ances and jobbing work. Respondent, in the course
and conduct of its business, annually derives gross
revenues in excess of $50,000 from selling and ship-
ping goods and materials, in interstate commerce,
from its Wisconsin location directly to points outside
the State of Wisconsin.
'See Piltsburgh 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). On July
11, 1979. Respondent filed a motion entitled "Motion to Reopen Record to
Admit Exhibit as Newly Discovered Evidence." On July 23. 1979. the Gen-
eral Counsel filed a motion in opposition to Respondent's motion. The Board
hereby denies Respondent's motion as the evidence Respondent seeks to
present does not constitute newly discovered evidence of which it was excus-
ably ignorant.
We find, on the basis of the foregoing, that Respon-
dent 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
eflectuate the policies of the Act to assert jurisdiction
herein.
II. 1111 IABO)R ()R(iANIZAllON INV()OI.VI)
Office and Professional Employees International
Union, Local 39, AFL ('10 (LC, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. 111i UNFAIR l.AB)R PRA('II('IS
A. 71ec Represctlntion Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time office and
clerical employees and technical employees em-
ployed at the Employer's Beaver Dam, Wiscon-
sin, facility, but excluding professional, manage-
rial, and confidential employees, outside sales
personnel, guards and supervisors as defined in
the Act and all other employees in bargaining
units represented by other labor organizations.
2. The certification
On March 28, 197o, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 30, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on April 5, 1979, 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 Re/usal
Commencing on or about April 27, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
May 1, 1979, and continuing at all times thereafter to
date, Respondent has refused, and continues to re-
fuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
486
MALLEABLE IRON RANGE COMPANY
Accordingly, we find that Respondent has, since
May 1, 1979, 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, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE lFFE('T OF T UNFAIR LABOR PRA(rTI('ES
UPON (COMMRCE
The activities of Respondent, set forth in section
Ill, above, occurring in connection with its operations
described in section 1, 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. HE RFMII)NY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) 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 ap-
propriate unit, and, if an understanding is reached.
embody such understanding in a signed agreement. 4
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion 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 Poullry Company. Inc., 136 NLRB
785 (1962); Commerce Company d/bl/a Lamar Hlotel.
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964): 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
I. Malleable Iron Range Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
' The General Counsel's request that the Board order Respondent to pay
to the Board and the Union reasonable costs and expenses incurred b) them
in the investigation of this case including reasonable counsel fees and ex-
penses is hereby denied as lacking in merit.
2. Office and Professional Employees International
Union, Local 39, AFL-CIO-CLC, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time office and
clerical employees and technical employees employed
at the Employer's Beaver Dam, Wisconsin, facility,
excluding professional, managerial, and confidential
employees, outside sales personnel, guards and super-
visors as defined in the Act and all other employees in
bargaining units represented by other labor organiza-
tions, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since April 5. 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the atore-
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 May I. 1979. 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 Re-
spondent in the appropriate unit. Respondent has en-
gaged 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. Respondent
has interfered with. restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 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 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 Rela-
tions Board hereby orders that the Respondent. Mal-
leable Iron Range Company. Beaver Dam, Wiscon-
sin, 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 con-
ditions of employment with Office and Professional
Employees International Union, Local 39, AFL
CIO-CLC, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time office and
clerical employees and technical employees em-
ployed at the Employer's Beaver Dam, Wiscon-
sin, facility, but excluding professional, manage-
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rial, and confidential employees, outside sales
personnel, guards and supervisors as defined in
the Act and all other employees in bargaining
units represented by other labor organizations.
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Beaver Dam, Wisconsin, facility
copies of the attached notice marked "Appendix. " s
Copies of said notice, on forms provided by the Re-
gional Director for Region 30, 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 30, 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 bh a Judgment of a United Stalles
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 ('ourt of' Appeals Enlforcing an Order of the National
l.abor Relaltions Board'
APPENDIX
NoTI( E TO EMPL)oYiiEs
POSTED BY ORDER Or I'HE
NATIONAl. LABOR REI.ATIONS BOARI
An Agency of the United States Government
WE WILL NO)t refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Office
and Professional Employees International
Union, Local 39, AFLICIO-CLC, as the exclu-
sive representative of the employees in the bar-
gaining 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 wii.i., 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
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time office and
clerical employees and technical employees
employed at the Employer's Beaver Dam,
Wisconsin, facility, but excluding professional.
managerial, and confidential employees, out-
side sales personnel, guards and supervisors as
defined in the Act and all other employees in
bargaining units represented by other labor or-
ganizations.
MAL.I.EABIE IRON RANGE CO()MPANY
488