Metco, Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 27, 1973205 N.L.R.B. 875 (N.L.R.B. 1973) Copy Citation METCO, INCORPORATED 875 Metco, Incorporated and United Steelworkers of Upon the entire record in this proceeding, the America, AFL-CIO-CLC. Case 10-CA-10097 Board makes the following: August 27, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on April 17, 1973, by United Steelworkers of America, AFL-CIO-CLC, herein called the Union, and duly served on Metco, Incorpo- rated, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a com- plaint on April 20, 1973, 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 March 27, 1973, following a Board election in Case 10-RC-9284 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 April 5, 1973, 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 2, 1973, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On May 10, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 22, 1973, 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. The Union, but not the Respondent, thereafter filed a response to the 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. 'Official notice is taken of the record in the representation proceeding, Case 10-RC-9284, 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, enfd 415 F 2d 26 (C.A 5, 1969); 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 Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent con- tends that the election and resulting certification of the Union were invalid because of the Union' s misre- presentations and the atmosphere of fear and coer- cion created by the Union during the preelection peri- od. Respondent further contends that it was deprived of due process through the Board's denial of a hearing on its objections to the election in Case 10-RC-9284. We find no merit in Respondent's position. Our review of the record indicates that in an elec- tion conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election the tally of ballots showed that of approximately 83 eligible voters, 52 cast valid votes for, and 26 cast valid votes against, the Union. Respondent filed timely objections to conduct affecting the results of the election. The objections alleged, in substance, that the Union had misrepre- sented wage rates prevailing at various organized plants in the area; that an unidentified person broke into the plant and shot up the vending machines with a rifle; and that a number of rank-and-file employees threatened other employees with physical violence and loss of employment if they did not support the Union. After an investigation, the Regional Director issued his Report on Objections in which he found that the wage rate claims , although subject to differing inter- pretations, did not constitute material misrepresenta- tions; that the shooting of the vending machines oc- curred 2 months before the election and was not shown to have been related to the election; that no union agent had been implicated in the alleged threats to prospective voters; and that there was no evidence of an atmosphere of fear and coercion of the type that would justify the setting aside of the election. The Regional Director, accordingly, recommended that the objections be overruled in their entirety and that the Union be certified. Thereafter, Respondent filed exceptions to the Re- gional Director's Report on Objections in which it disputed the findings as to the materiality of the Union's alleged misrepresentations and reasserted its contentions that an atmosphere of fear and coercion created by the Union had rendered a free election impossible. The Board, on March 27, 1973, issued a Decision and Certification of Representative in which it adopted the findings, conclusions, and recommen- dations of the Regional Director and certified the Union as collective-bargaining representative of the employees in the unit stipulated to be appropriate. In its answer to the complaint, Respondent is seek- ing to relitigate issues which were determined in the 205 NLRB No. 138 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD underlying representation proceeding. Contrary to Respondent's contention, parties do not have an ab- solute right to a hearing on objections to an election. It is only when the moving party presents a prima facie showing of substantial and material issues which would warrant setting aside an election that it is enti- tled to an evidentiary hearing. This the Respondent has not done. It is clear that absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements? It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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 the Respondent in this proceed- ing 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. We shall, accordingly, grant the Motion for Summary Judgment .4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is an Alabama corporation with an of- fice and place of business located in Hartselle, Ala- bama , where it is engaged in the manufacture of steel reels and related products. During the past calendar year, Respondent purchased and received goods va- lued in excess of $50 ,000 directly from suppliers locat- ed outside the State of Alabama. We find , on the basis of the foregoing , the 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 effectu- ate the policies of the Act to assert jurisdiction herein. 2 Amalgamated Clothing Workers of America v N L R B, 424 F 2d 818, 828 (C A.D.C, 1970); N L R B v Golden Age Beverage Company, 415 F 2d 26, 32 (C.A 5, 1969) 3 See Pittsburgh Plate Glass Co v N L R B 313 U S 146, 162 ( 1941), Rules and Regulations of the Board, Secs . 102 67(1) and 102 69(c) 4 In its response to the Notice To Show Cause, the Union urges that the Board 's remedy include an order to bargain over wages and hours retroactive to the date of the violation and the payment of backpay to employees while on strike or, alternatively , a reimbursement to the Union for the costs and expenses of the strike The Union 's request for such "make-whole" remedies is denied for the reasons set forth in Ex-Cell-O Corporation , 185 NLRB 107, see also Farah Manufacturing Company, Inc, 203 NLRB No. 78, In . 10, and cases cited therein II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective -bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Respondent's Hartselle , Alabama , plant, in- cluding leadmen , draftsmen , and plant clerical employees , but excluding office clerical employ- ees, guards , and supervisors as defined in the Act. 2. The certification On October 12, 1972, 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 10, 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 March 27, 1973, 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 2, 1973, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about April 5, 1973, and continuing at all times there- after to date, the Respondent has refused, and contin- ues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargain- ing of all employees in said unit. Accordingly, we find that the Respondent has, since April 5, 1973, 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. METCO , INCORPORATED 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. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a/ Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert . denied 379 U.S. 817 ( 1964); Burnett Construction Company, 149 NLRB 1419, 1421, 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. Metco , Incorporated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America , AFL-CIO- CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Hartselle , Alabama, plant , includ- ing leadmen , draftsmen , and plant clerical employees, but excluding office clerical employees , 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 March 27, 1973, 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 877 bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 5, 1973, 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 , Respondent has interfered with, restrained, and coerced, and is interfering with, restraining , and coercing, employees 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 mean- ing 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 Respondent, Metco, Incorporated , its officers , agents , successors , and as- signs , 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 United Steelworkers of America, AFL-CIO-CLC, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All production and maintenance employees at the Respondent 's Hartselle, Alabama , plant, in- cluding leadmen , draftsmen, and plant clerical employees, but excluding office clerical employ- ees, 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 place of business at Hartselle, Ala- bama, copies of the attached notice marked "Appen- 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dix." I Copies of said notice, on forms provided by the Regional Director for Region 10, 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 notice 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 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. CHAIRMAN MILLER, dissenting: Since I would have directed a hearing in the under- lying representation case, on Objection 2, I would not now grant General Counsel's Motion for Summary Judgment. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 representative 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: All production and maintenance employees at the Employer's Hartselle, Alabama, plant, including leadmen, draftsmen, and plant cleri- cal employees, but excluding office clerical employees, guards, and supervisors as defined in the Act. Dated By WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with United Steelworkers of America, AFL-CIO-CLC, as the 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 " METCO, INCORPORATED (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 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, Peachtree Building, Room 701, 730 Peachtree Street NE, Atlanta , Georgia 30308, Tele- phone 404-526-5760. Copy with citationCopy as parenthetical citation