Metco, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1973

205 N.L.R.B. 875 (N.L.R.B. 1973)

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.