Metal Container Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1980

249 N.L.R.B. 1222 (N.L.R.B. 1980)

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