Metal Container Corp.Download PDFNational Labor Relations Board - Board DecisionsJun 12, 1980249 N.L.R.B. 1222 (N.L.R.B. 1980) Copy Citation 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Container Corporation and International Brotherhood of Electrical Workers, Local No. 1, AFL-CIO. Case 14-CA-13312 June 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on January 2, 1980, by In- ternational Brotherhood of Electrical Workers, Local No. 1, AFL-CIO, herein called the Union, and duly served on Metal Container Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 14, issued a complaint and notice of hearing on January 16, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting 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 and 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 November 9, 1979, following a Board election in Case 14-RC- 9001, the Union was duly certified as the exclusive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about December 17, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On January 28, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On February 8, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 20, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. I Official notice is taken of the record in the representation proceed- ing, Case 14-RC-9001, 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 (4th Cir 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Intertype Co. Penello, 269 F.Supp 573 (DC.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended 249 NLRB No. 175 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 admits the request and refusal to bargain, but raises two affirmative defenses, the substance of which attacks the validity of the Board's certification in the underlying representation proceeding. In its first affirmative defense, Respondent avers that the Regional Director's unit determination is factually erroneous and invalid as a matter of law. In its second affirmative defense, Respondent asserts, inter alia, that the Regional Director improperly failed to articulate the reasons for his unit determi- nation and failed to articulate the weight or signifi- cance, if any, of competing factors considered by him in making the unit determination. Further, Re- spondent asserts that the Board improperly denied its request for review of the Regional Director's decision and improperly failed to state the reasons for denying such review and upholding the Re- gional Director's decision. Review of the record herein, including the record in Case 14-RC-9001, reveals that on Octo- ber 1, 1979, after a hearing in which Respondent participated, the Regional Director issued a Deci- sion and Direction of Election in which he found appropriate the Petitioner's requested unit of elec- trical maintenance employees at Respondent's Arnold, Missouri, facility. Thereafter, Respondent filed a timely request for review of the Regional Director's decision, alleging in substance that the Regional Director's unit determination was factual- ly erroneous and invalid as a matter of law. By telegraphic order dated October 31, 1979, the Board denied Respondent's request for review. It therefore appears that in this proceeding Respon- dent is attempting to relitigate issues fully litigated and finally determined in the representation pro- ceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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 Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does 2See Pimttburgh Plate Glao' Co. Nv L.R B . 313 US 146, 162 (1941); Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) METAL CONTAINER CORPORATION 1223 not offer to adduce at a hearing any newly discov- ered 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. In this proceeding, Respondent again contends, inter alia, that the Regional Director and the Board improperly failed to explicate the basis for the unit determination and the significance of competing factors bearing on community of interest. Respon- dent draws our attention in this regard to the Fifth Circuit's decision in N.L.R.B. v. Purnell's Pride, Inc., 103 LRRM 2274, 87 LC ¶11,770 (1980). In Purnell's Pride, the court, in denying enforcement of the Board's Order and remanding to the Board for further proceedings, found that the Board had failed to justify adequately its unit determination. We find no merit in Respondent's contentions. In our judgment, the Regional Director addressed in his decision all the facts and factors bearing on the issue of community of interest and properly ana- lyzed those factors in reaching his unit determina- tion. Accordingly, we grant the Motion for Sum- mary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with its office and principal place of business in St. Louis, Missouri, and a facility in Arnold, Missouri. Re- spondent is engaged in the manufacture, sale, and distribution of metal cans and related products. During the year ending December 31, 1979, Re- spondent, in the course and conduct of its oper- ations, purchased and caused to be transported and delivered at its Arnold facility goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were trans- ported and delivered to its Arnold facility directly from points located outside the State of Missouri. 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 jurisdiction herein. II. THE LABOR ORGANIZATION INVOIVED International Brotherhood of Electrical Workers, Local No. 1, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: The production support electricians at Respon- dent's Arnold, Missouri, facility, excluding office clerical, production and other mainte- nance employees, guards and supervisors as defined in the Act. 2. The certification On November 1, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 14, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on November 9, 1979, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 16, 1979, and at all times thereafter, the Union has requested 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 December 17, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 17, 1979, 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, 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 oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 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. 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 certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; 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 1. Metal Container Corporation is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local No. 1, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The production support electricians at Re- spondent's Arnold, Missouri, facility, excluding office clerical, production and other maintenance employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since November 9, 1979, 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 December 17, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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, 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)(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 Re- lations Board hereby orders that the Respondent, Metal Container Corporation, Arnold, Missouri, 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 Brotherhood of Electrical Workers, Local No. 1, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: The production support electricians at Respon- dent's Arnold, Missouri, facility, excluding office clerical, production and other mainte- nance employees, guards and supervisors as defined in the Act. (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 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at the Arnold, Missouri, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly 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 Pursu- ant To a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." METAL CONTAINER CORPORATION 1225 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 International Brotherhood of Electrical Workers, Local No. I, AFL-CIO, as the ex- clusive 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 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 represen- tative 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 agreement. The bargaining unit is: The production support electricians at our Arnold, Missouri, facility, excluding office clerical, production and other maintenance employees, guards and supervisors as de- fined in the Act. METAL CONTAINER CORPORATION Copy with citationCopy as parenthetical citation