Roberts Door and Window Co.

National Labor Relations Board - Board Decisions

Oct 24, 1975

221 N.L.R.B. 116 (N.L.R.B. 1975)

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roberts Door and Window Company and Sheet Metal
Workers' International Association, Local Union
No. 2, AFL-CIO. Case 17-CA-6571
October 24, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on May 23, 1975, by Sheet
Metal Workers' International Association, Local
Union No. 2, AFL-CIO, herein called the Union,
and duly served on Roberts Door and Window
Company, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 17, issued a
complaint on July 10, 1975, against Respondent,
alleging that Respondent had engaged in' and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (5),
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 Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practice, the
complaint alleges in substance that on February 27,
1975, following a Board-conducted election in Case
17-RC-7586, the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent 's employees in the unit found appropri-
ate;1 and that, commencing on or about May 15,
1975, and at all times thereafter, Respondent has
refused, and continues to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative , although the Union has requested
and is requesting it to do so; and that Respondent's
sole objective in refusing to bargain is to test the
validity of the Board's certification of representative
in Case 17-RC-7586. The complaint alleges that
Respondent, by the foregoing conduct, has violated
Section 8(a)(1) and (5) of the Act.
On July 24, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint and requesting that
the complaint be dismissed in its entirety. In
particular, Respondent admits the allegations in the
complaint concerning its refusal to recognize and
bargain with the Union, and that its sole objective in
so doing is to test the validity of the certification
1 Official notice is taken of the record in the representation proceeding,
Case 17-RC-7586, as the term "record" is defined in Secs. 102.68 and
102.69(8) of the Board's Rules and Regulations, Series 8, as amended See
LTV Electrasystems, 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
221 NLRB No. 31
issued in Case 17-RC-7586. Respondent also admits
that, as a result of a Board-conducted secret ballot
election, the Union was certified on February 27,
1975, as the exclusive representative for purposes of
collective bargaining of Respondent's employees in
the unit found appropriate, but denies the validity of
the certification through an iteration of its objections
to conduct affecting the election; Respondent avers
that the Regional Director improperly overruled, and
the Board thereafter denied review of, the objections,
and also denies the conclusory allegations that it has
violated Section 8(a)(1) and (5) of the Act.
On August 11, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment wherein it is asserted that, in
view of the admissions contained in Respondent's
answer, there are no issues of fact warranting a
hearing in this proceeding, and it therefore requests
the Board to grant the Motion for Summary
Judgment. On August 22, 1975, the Board issued an
order transferring this proceeding to the Board and a
notice to show cause why the General Counsel's
Motion for Summary Judgment should not be
granted. Thereafter, Respondent filed a reply to the
notice to show cause entitled "Showing of Cause."
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 Motion for Summary Judgment
As indicated above, Respondent admits all of the
factual allegations of the complaint. In its reply to
the notice to show cause, it again contends that it is
not obligated to bargain with the Union because of
the invalidity of the certification, and prays the
Board to overrule the Motion for Summary Judg-
ment and to stay the Regional Director's February
27, 1975, Supplemental Decision on Objections and
Certification of Representative. More specifically,
Respondent avers that, in overruling its objections,
the Regional Director misapplied and/or rejected
controlling Board decisions; that in his supplemental
decision, the Regional Director did not treat certain
material issues; and that certain of the Regional
Director's factual determinations were based on ex
parte statements from witnesses whom Respondent
was unable to cross-examine.2 In short, Respondent's
reply is a reiteration of its basic contentions that the
(C.A. 5, 1969); Intertype Co. v. Peneio, 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.
2 The factual determinations to which Respondent here refers are based
on certain of its objections of which it did not seek review.
ROBERTS DOOR AND WINDOW CO.
Regional Director improperly overruled its objec-
tions to the election, and, inferentially, that the
Board improperly denied its request for review.
Respondent, however, does not contend that it was,
in any way, foreclosed from presenting evidence in
support of its objections during the administrative
investigation, or that the Regional Director's findings
of fact, as opposed to the inferences or legal
conclusions drawn from those facts, were erroneous,
or that it has newly discovered or previously
unavailable evidence which would affect materially
the determination made in the representation pro-
ceeding. Moreover, Respondent has predicated
certain of its arguments on issues raised in its
Objections 3 and 4, despite its failure to seek Board
review of the Regional Director's disposition of these
objections. In view of these circumstances, and
inasmuch as Respondent previously has not ad-
vanced, and does not now advance, substantial
evidence to contravene the Regional Director's and
the Board's disposition of its objections, and,
similarly, has failed to advance any substantial and
material factual issues which would have warranted a
hearing on its objections to the election, we find no
merit in Respondent's contentions. Moreover, absent
newly discovered or previously unavailable evidence
or special circumstances a respondent in a proceed-
ing alleging a violation of Section 8(a)(5) is, not
entitled to relitigate issues that were or could have
been litigated in a prior representation proceeding .3
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
properly is litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the General
Counsel's Motion for Summary Judgment and, deny
Respondent's prayers as contained in its reply to 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 Missouri corporation with its place
of business located at Kansas City, Missouri, is
engaged in the business of fabricating and producing
storm doors , patio covers , screen rooms, and other
117
items of similar nature, primarily for the home
improvement market. During the course and conduct
of its business, Respondent annually purchases
goods and materials valued in excess of $50,000
directly from sources outside the State of Missouri.
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.
H. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association,
Local Union No. 2, AFL-CIO, is a labor organiza-
tion 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 full-time and regular part-time production
and maintenance employees, including fabrica-
tors, employed by Roberts Door and Window
Company at its plant located at 2022 East 19th
Street, Kansas City, Missouri, but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On December 3, 1974, 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 17, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. Thereafter, on December 6,
1974, Respondent filed timely objections to conduct
of representation election. On February 27, 1975, the
Regional Director issued a Supplemental Decision
on Objections and Certification of Representative,
finding, in substance, that the objections did not
raise substantial and material issues with respect to
the conduct of the election. Thereafter, Respondent
timely filed a request for review, which was denied
by the Board on April 8, 1975. The Union was
certified as the collective-bargaining representative
of the employees in said unit on February 27, 1975,
and the Union continues to be such exclusive
3 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 29, 1975, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all employees
in the above-described unit. Commencing on or
about May 15, 1975, 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
May 15, 1975, 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
engaged and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) 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)(1) and (5) 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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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:
CONCLUSIONS OF LAW
1. Roberts Door and Window Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers' International Associa-
tion, Local Union No. 2, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time production
and maintenance employees, including fabricators,
employed by Roberts Door and Window Company
at its plant located at 2022 East 19th Street, Kansas
City, Missouri, but excluding office clerical employ-
ees, professional 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 February 27, 1975, 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 May 15, 1975, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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, 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)(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
Relations Board hereby orders that Respondent,
Roberts Door and Window Company, Kansas City,
Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
ROBERTS DOOR AND WINDOW CO.
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of-employment with Sheet Metal Work-
ers' International Association, Local Union No. 2,
AFL-CIO, as the exclusive bargaining representative
in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees, including fabrica-
tors, employed by Roberts Door and Window
Company at its plant located at 2022 East 19th
Street, Kansas City, Missouri, but excluding
office clerical employees, professional employees,
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 Kansas City, Missouri, plant copies
of the attached notice marked "Appendix." 4 Copies
of said notice , on forms provided by the Regional
Director for Region 17, 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 there-
after, in conspicuous places, including all places
where notices to employees customarily are 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 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
119
4 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
Metal Workers' International Association, Local
Union No. 2, AFL-CIO, as the exclusive repre-
sentative 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
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 full-time and regular, part-time pro-
duction and maintenance employees, includ-
ing,fabricators, employed by Roberts Door
and Window Company at its plant located
at 2022 East 19th Street, Kansas City,
Missouri, but excluding office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
ROBERTS DOOR AND
WINDOW COMPANY