Rabco Metal Products, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1976

225 N.L.R.B. 236 (N.L.R.B. 1976)

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rabco Metal Products , Inc. and Sheet Metal Work-
ers' International Association, Local Union No. 75,
Food Service Equipment Division , AFL-CIO. Case
21-CA-14415
June 25, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on February 24, 1976, by
Sheet Metal Workers' International Association, Lo-
cal Union No. 75, Food Service Equipment Division,
AFL-CIO, herein called the Union, and duly served
on Rabco Metal Products, Inc., herein called Re-
spondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 21, issued a complaint on February 27, 1976,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practic-
es affecting 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, 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 February 6, 1976,
following a Board election in Case 21-RC-14083, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about February 18, 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 representative and to fur-
nish the Union with relevant and necessary bargain-
ing information, although the Union has requested
and is requesting it to do so. On March 8, 1976, Re-
spondent filed its answer to the complaint admitting
in part, and denying in part, the allegations in the
complaint.
On April 1, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 14, 1976, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
i Official notice is taken of the record in the representation proceeding,
Case 21-RC-14083, 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), Iniertype Co v Penello, 269 F Supp 573 (D C Va, 1967),
Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec
9(d) of the NLRA
General Counsel's Motion for Summary Judgment
should not be granted. Respondent has failed to file
a response to Notice To Show Cause. On April 26,
1976, the Union filed a motion to intervene and its
"Answer on Behalf of Intervenor to Notice To Show
Cause," in which it requests that it be awarded from
Respondent "those attorneys' fees, litigation expen-
ses and excess organizational costs incurred as a re-
sult of the continuing unlawful conduct and raising
of frivolous defenses by the employer herein." The
Union's motion to intervene is hereby granted.
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, in sub-
stance, attacks the validity of the Union's certifica-
tion, contending that no true majority of unit em-
ployees designated and selected the Union and that
some members of the unit, in a number sufficient to
alter the results of the election, were coerced and
misled into voting for the Union.
Review of the record herein, including the record
in Case 21-RC-14083, indicates that, pursuant to the
Regional Director's Decision and Direction of Elec-
tion, an election was held on April 25, 1975. The tally
of ballots disclosed six votes for and eight against the
Union, leaving determinative the eight challenged
ballots. Thereafter, Respondent filed timely objec-
tions to conduct affecting the results of the election,
alleging, in substance, (1) misrepresentations, (2) su-
pervisory support for the Union, (3) creation of the
impression that the U.S. Government endorses the
Union, (4) failure by the Board to enable an eligible
hospitalized employee to vote, and (5) involvement
of a third party in the Union's organizational cam-
paign. After investigation, on June 18, 1975, the Re-
gional Director issued his Supplemental Decision
and Order Directing Hearing and Order Consolidat-
ing Cases and Notice of Hearing. In his supple-
mental decision, the Regional Director overruled
Respondent's objections in their entirety, sustained
the challenges to two of the ballots, directed a hear-
ing as to six of the challenged ballots, and consolidat-
ed said hearing with Cases 21-CA-13413-1 and 21-
CA-13413-2.2 Subsequently, Respondent filed a re-
2 The six challenged individuals, Arturo Flores, Rafael Flores Esquivel,
Hurshal Holliday, David Oldfield, George Olgum Garcia, and Anthony
Vince, were alleged to have been discriminatorily discharged and were the
subject of unfair labor practice charges in Cases 21-CA-13413-1 and 21-
CA-13413-2 On April 4, 1975, the Acting Regional Director issued an
225 NLRB No. 39
RABCO METAL PRODUCTS, INC. 237
quest for review with the Board as to the Regional
Director's overruling its election objections, specifi-
cally those related to misrepresentations and the fail-
ure to enable the hospitalized employee to vote. The
Board, by telegraphic order dated July 18, 1975, de-
nied the request for review as it raised no substantial
issues warranting review.
After a hearing, on September 9, 1975, the Admin-
istrative Law Judge found that five of the six chal-
lenged voters had been discharged in violation of
Section 8(a)(3) of the Act,3 and recommended that
Case 21-RC-14083 be remanded to the Regional Di-
rector in order to open and count the ballots cast by
the five discriminatees. Thereafter, Respondent filed
exceptions to the Administrative Law Judge's Deci-
sion and, on December 23, 1975, after considering
such exceptions, the Board issued its Decision and
Order,4 affirming the rulings, findings, and conclu-
sions of the Administrative Law Judge and adopting
her recommended Order.
On January 8, 1976, Respondent requested that
the Board reconsider its Decision and Order, grant
an additional hearing, and stay the counting of bal-
lots, scheduled for January 9, 1976, on the grounds
that Respondent had new evidence which was un-
available at the time of the original hearing. Respon-
dent further stated that a formal petition with sup-
porting documentation would be submitted
promptly. On February 4, 1976, noting that Respon-
dent had failed to submit any such supporting docu-
mentation, the Board denied Respondent's request
for reconsideration and a stay of the counting of bal-
lots as lacking in merit. Following the counting of the
5 challenged ballots, the revised tally of ballots dis-
closed 11 votes for and 8 votes against the Union.
Accordingly, on February 6, 1976, the Regional Di-
rector certified the Union as the exclusive representa-
tive of an appropriate unit of Respondent's employ-
ees.
In its answer, Respondent states its contentions
herein will be supported by newly discovered evi-
dence previously unavailable to Respondent, but it
has failed to submit any such supporting evidence
whatsoever. It thus appears that Respondent is seek-
ing to relitigate herein issues which were raised and
decided in the underlying representation case. It is
well settled that in the absence of newly discovered
or previously unavailable evidence or special circum-
stances a respondent in a proceeding alleging a viola-
Order Consolidating Cases , Consolidated Complaint, and Notice of Hear-
ing in these cases
7 Following Holliday's failure to appear at the hearing , the Administrative
Law Judge granted the General Counsel 's motion to amend the consolidat-
ed complaint to delete the allegations as to his discharge
221 NLRB 1230.
tion of Section 8(a)(5) is not entitled to relitigate is-
sues which were or could have been litigated in a
prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding. Respondent's bare con-
clusionary assertion of newly discovered or previous-
ly unavailable evidence is an insufficient basis for re-
consideration and it does not allege any other special
circumstances 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.' We shall, accord-
ingly, grant the Motion for Summary Judgment'
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation with a place
of business in Los Angeles, California, is engaged in
the manufacture and fabrication of sheet metal prod-
ucts. In the course and conduct of its business opera-
tions, Respondent annually sells goods valued in ex-
cess of $50,000 to customers located within the State
of California, each of which customers annually pur-
chases and receives goods valued in excess of $50,000
directly from suppliers located outside the State of
California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association,
Local Union No. 75, Food Service Equipment Divi-
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(f) and 102 69(c)
6 In its answer to the complaint, Respondent denies the General
Counsel's allegation that since on or about February 18, 1976, Respondent
has refused to bargain with the Union or to furnish the Union with the
information requested However , attached to the General Counsel's Motion
for Summary Judgment is a letter, dated February 18, 1976, purportedly
from Respondent's attorney, addressed to the Union, in which Respondent
refuses to bargain with the Union or to furnish the information requested
As Respondent offers nothing to controvert this evidence , we deem the
complaint allegation concerning a refusal to bargain to be admitted to be
true and we so find
7 The Union's request for attorneys ' fees, litigation expenses, and excess
organizational costs is denied , as we do not find Respondent 's defenses
herein to be frivolous Heck's, Inc, 215 NLRB 765 (1974), Amsterdam Print-
ing and Litho Corp, 223 NLRB 370 (1976)
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion , AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. 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 employees of Respondent, including fabri-
cators, installers, shipping and receiving employ-
ees, truckdrivers, and leadmen; excluding all of-
fice clerical employees, professional employees,
guards, watchmen, and supervisors as defined in
the Act.
2. The certification
On April 25, 1975, 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 21, 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 February 6, 1976, and the Union con-
tinues 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 February 11, 1976, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit, and has re-
quested Respondent to furnish it with relevant and
necessary bargaining information concerning such
employees, including, but not limited to, the names,
classifications , wage rates , length of employment,
and fringe benefits of such employees. Commencing
on or about February 18, 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 collec-
tive bargaining of all employees in said unit, and has
refused, and continues to refuse, to furnish the
Union with the requested information.
Accordingly, we find that Respondent has, since
February 18, 1976, 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 has refused to furnish relevant
and necessary bargaining information requested by
the Union, and that, by such refusals, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 opera-
tions described in section 1, above, have a close, inti-
mate , 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 commerce.
V. 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 , furnish the requested bargaining informa-
tion and bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate 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 se-
lected 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); Bur-
nett 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:
CONCLUSIONS OF LAW
1. Rabco Metal Products, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Sheet Metal Workers' International Associa-
tion, Local Union No. 75, Food Service Equipment
Division , AFL-CIO , is a labor organization within
the meaning of Section 2(5) of the Act.
3. All employees of Respondent , including fabri-
RABCO METAL PRODUCTS, INC. 239
cators, installers, shipping and receiving employees,
truckdrivers, and leadmen; excluding all office cleri-
cal employees, professional employees, guards,
watchmen, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since February 6, 1976, 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
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about February 18, 1976, 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 Re-
spondent in the appropriate unit, and to furnish the
Union with relevant and necessary bargaining infor-
mation requested by the Union, Respondent has en-
gaged 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 and to fur-
nish bargaining information, Respondent has inter-
fered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the ex-
ercise 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 Sec-
tion 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 Re-
lations Board hereby orders that the Respondent,
Rabco Metal Products, Inc., Los Angeles, California,
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 con-
ditions of employment with Sheet Metal Workers'
International Association, Local Union No. 75, Food
Service Equipment Division, AFL-CIO, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All employees of Respondent, including fabri-
cators, installers, shipping and receiving employ-
ees, truckdrivers, and leadmen; excluding all of
fice clerical employees, professional employees,
guards, watchmen, and supervisors as defined in
the Act.
(b) Refusing to furnish the Union with requested
relevant and necessary bargaining information con-
cerning the employees in the above-described unit,
including, but not limited to, the names, classifica-
tions, wage rates, length of employment, and fringe
benefits of such employees.
(c) 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) Upon request, furnish the Union with request-
ed relevant and necessary bargaining information
concerning the employees in the aforesaid appropri-
ate unit, including, but not limited to, the names,
classifications, wage rates, length of employment,
and fringe benefits of such employees.
(c) Post at its Los Angeles, California, facility cop-
ies of the attached notice marked "Appendix." 8 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
8 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 Sheet
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Workers ' International Association, Lo-
cal Union No . 75, Food Service Equipment Di-
vision , AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT refuse to furnish the above-
named Union with requested relevant and nec-
essary bargaining information concerning the
employees in the bargaining unit described be-
low, including , but not limited to, the names,
classifications , wage rates, length of employ-
ment, and fringe benefits of such employees.
WE WILL NOT in any like or related manner
interfere 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 represen-
tative of all employees in the bargaining unit de-
scribed 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 employees of Respondent , including
fabricators , the Employer installers , shipping
and receiving employees , truckdrivers, and
leadmen ; excluding all office clerical employ-
ees, professional employees , guards , watch-
men, and supervisors as defined in the Act.
WE WILL , upon request , furnish the Union
with requested relevant and necessary bargain-
ing information concerning the employees in the
aforesaid appropriate unit , including, but not
limited to , the names , classifications , wage rates,
length of employment , and fringe benefits of
such employees.
RABCO METAL PRODUCTS, INC.