Northshore Fabricators and Erectors, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1977

230 N.L.R.B. 346 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northshore Fabricators and Erectors, Inc. and Shop-
men's Local Union 455, International Association
of Bridge, Structural and Ornamental Ironworkers,
AFL-CIO. Case 29-CA-5396
June 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on January 4, 1977, by
Shopmen's Local Union 455, International Associa-
tion of Bridge, Structural and Ornamental Ironwork-
ers, AFL-CIO, herein called the Union, and duly
served on Northshore Fabricators and Erectors, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 29, issued a complaint
and notice of hearing on January 25, 1977, 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
complaint alleges in substance that on December 7,
1976, following a Board election in Case 29-RC-
3182, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about November 29, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On February 1, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint and on February 17, 1977, Respon-
dent submitted a letter of position.
On February 22, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 7,
1977, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
l Official notice is taken of the record in the representation proceeding,
Case 29-RC-3182, 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 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follerr Corp., 164 NRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of thenLRA, as amended.
230 NLRB No. 46
Summary Judgment should not be granted. On
March 17, 1976, Respondent filed its Cross-Motion
for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary
Judgment
In its answer, letter of position, and Cross-Motion
for Summary Judgment, Respondent contends in
substance that the certification is invalid because the
election was conducted less than 10 days after the
receipt of the Excelsior list in contravention of the
Board's Rules and Regulations. In his Motion for
Summary Judgment, counsel for the General Coun-
sel contends that Respondent has not raised any
issue which is properly litigable in an unfair labor
practice proceeding and is merely seeking to reliti-
gate issues decided by the Board in the representa-
tion case, and, accordingly, that summary judgment
should be granted. We agree.
Review of the record herein, including that in the
underlying representation case (29-RC-3182), shows
that Local 819, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein the Petitioner, filed a petition
seeking to represent a production and maintenance
unit of Respondent's employees. The Union inter-
vened on the basis of its contract with a multiem-
ployer bargaining unit, of which Respondent alleged-
ly was a member and asserted that a multiemployer
unit was appropriate. After a hearing, the Regional
Director issued his Decision and Direction of
Election on June 15, 1976, in which he found that a
unit limited to Respondent's production and mainte-
nance employees was appropriate.2 By letter dated
June 18, 1976, the Union requested that the Regional
Director conduct the election on or before June 30,
1976, in order to avoid disenfranchising employees
on strike against Respondent since July 1, 1975. The
Excelsior list of eligible employees was received by
the Regional Office and mailed on June 22, 1976,
and, as that list did not include striking employees, a
supplemental list of eligible strikers was subsequently
mailed to the parties on June 24, 1976. The same day
2 In his Decision and Direction of Election the Regional Director also
found that the timeliness and propriety of Respondent's withdrawal from
the multiemployer bargaining unit had been resolved contrary to Respon-
dent in a prior unfair labor practice proceeding (Case 29-CA4619) and
could not be litigated in the representation case. Thereafter the Board
denied the Union's request for review of this finding.
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NORTHSHORE FABRICATORS & ERECTORS, INC.
the Regional Director notified the parties that the
election would be held on June 30 and Respondent,
by telegrams to both the Regional Director and the
Board, requested that the election be stayed. 3
Respondent contended in substance that, by sched-
uling the election for June 30, the Board was
improperly shortening its requirement that the
Excelsior list be supplied 10 days in advance of the
election. On June 28, the Regional Director reaf-
firmed the June 30 election date and, by telegraphic
order of June 30, the Board denied the request to
stay the election.
In the election held on June 30, 1976, all 16 ballots
cast were challenged. Both the Petitioner and
Respondent filed similar objections regarding the
timing of the election. Specifically, Petitioner alleged
that it did not receive either the list of eligible voters
or the election notice sufficiently in advance of the
election. Respondent's single objection alleged that it
did not have sufficient time to campaign among the
strikers after announcement of their eligibility shortly
before the election.
After investigation, the Regional Director on
September 1, 1976, issued his Supplemental Decision
on Objections and Challenged Ballots in which he
recommended overruling the objections in their
entirety. With respect to the 16 challenges, he
recommended that 8 be overruled, 5 sustained, and 3
remain unresolved. Accordingly, he ordered that the
eight overruled challenged ballots be opened and
counted and, if those eight ballots did not result in a
determinative election, that a hearing be held on the
three unresolved challenges. Treating together the
objections of Respondent and the Petitioner relating
to the timing of the election, the Regional Director
found that, although the 6-day period between the
June 24 notification and the June 30 election was
shorter than the usual 25-day period regularly
utilized in setting election dates following directions
of election, (I) the Board had in similar unusual
circumstances sanctioned the shortening of time
periods, 4 (2) the affected employees had numerous
opportunities to question all parties, and (3) the
burden of the shortened period fell equally on all
parties.
Subsequently, Petitioner filed a request for review
of the Regional Director's Supplemental Decision,
contending, inter alia, that the overruling of its
objection on the timing of the election was improper.
On November 17, 1976, the Board denied Petition-
3 Petitioner filed a similar request with the Board.
I The Regional Director basically relied on Kingsport Press, Inc., 146
NLRB 260 (1964), to justify shortening the usual time requirement to avoid
disenfranchising the strikers.
5 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
8 In its answer to the complaint, Respondent denies the request and
er's request for review for lack of substantial issues
warranting review. Respondent did not request
review of the overruling of its similar objection.
On November 23, 1976, the eight overruled
challenged ballots were opened and counted; the
revised tally showed that all eight were cast for the
Union and that, therefore, the remaining three
unresolved challenged ballots were not sufficient to
affect the results of the election. Accordingly, the
Regional Director certified the Union on December
7, 1976. It thus appears that Respondent is attempt-
ing to raise issues which had been raised or could
have been raised in the underlying representation
case.
It is well settled that in the absence of newly
discovered 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.5
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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 Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding.6 We shall, accordingly, deny Respon-
dent's cross-motion and grant the General Counsel's
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a New York corporation with its principal
office and place of business at 2612 Chestnut Street,
Ronkonkoma, New York, herein called the Ronkon-
koma plant, where it is engaged in the shop
fabrication and jobsite erection of steel and orna-
mental metal products. During the past year, which
period is representative of its annual operations
generally, Respondent, in the course and conduct of
its business, purchased and caused to be transported
and delivered to its Ronkonkoma plant iron, steel,
refusal to bargain. Respondent's uncontroverted letter of position, attached
to the Motion for Summary Judgment as Resp. Exh. Q, states that, for the
purposes of the Motion for Summary Judgment, Respondent would not
contest the allegations of a request and refusal. As this letter in effect
amends Respondent's answer, we accordingly deem those allegations of the
complaint concerning a request and refusal to be admitted to be true.
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and related products, and other goods and materials
valued in excess of $50,000, of which goods and
materials valued in excess of $50,000 were transport-
ed and delivered to its Ronkonkoma plant in
interstate commerce directly from States other than
the State in which it is located and which were
transported and delivered to it and received from
other enterprises located in New York, each of which
other enterprises had received the said goods and
materials in interstate commerce directly from States
other than the State in which it is located.
We find, on the basis of the foregoing, that
Respondent 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 INVOLVED
Shopmen's Local Union 455, International Associ-
ation of Bridge, Structural and Ornamental Iron-
workers, 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 constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
Respondent employed at its Ronkonkoma plant,
exclusive of all erectors, office clerical employees,
guards and supervisors as defined in Section 2(11)
of the Act.
2. The certification
On June 30, 1976, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 29, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on December 7, 1976, 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
Refusal
Commencing on or about November 29, 1976, and
continuously since on or about December 10, 1976,
through January 6, 1977, and all times thereafter, the
Union has requested Respondent to bargain collec-
tively with it as the exclusive collective-bargaining
representative of all the employees in the above-
described unit. Commencing on or about November
29, 1976, and continuing at all times thereafter to
date, Respondent has refused, and continues to
refuse, to recognize and bargain with the Union as
the exclusive representative for collective bargaining
of all employees in said unit.
Accordingly, we find that Respondent has, since
November 29, 1976, 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, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX)(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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), 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:
348
NORTHSHORE FABRICATORS & ERECTORS, INC.
CONCLUSIONS OF LAW
1. Northshore Fabricators and Erectors, Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Shopmen's Local Union 455, International
Association of Bridge, Structural and Ornamental
Ironworkers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent employed at its Ronkonkoma plant,
exclusive of all erectors, office clerical employees,
guards and supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since December 7, 1976, 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 November 29, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive 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(aX5) 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, employ-
ees 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
meaning of Section 8(a)(l) 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
Relations Board hereby orders that the Respondent,
Northshore Fabricators and Erectors, Inc., Ronkon-
koma, New York, 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
conditions of employment with Shopmen's Local
Union 445, International Association of Bridge,
Structural and Ornamental Ironworkers, AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees of
Respondent employed at its Ronkonkoma plant,
exclusive of all erectors, office clerical employees,
guards and supervisors as defined in Section 2(11)
of 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 Ronkonkoma, New York, plant
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 29, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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."
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 Shop-
men's Local Union 455, International Association
of Bridge, Structural and Ornamental Ironwork-
ers, AFL-CIO, as the exclusive 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 employees
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 representa-
tive 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 agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees of Respondent employed at its Ronkon-
koma plant, exclusive of all erectors, office
clerical employees, guards and supervisors
as defined in Section 2(11) of the Act.
NORTHSHORE
FABRICATORS AND
ERECTORS, INC.
350