S-G Metal Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1981

256 N.L.R.B. 416 (N.L.R.B. 1981)

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S-G Metal Industries, Inc. and Automotive Employ-
ees, Laundry Drivers and Helpers Local 88, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 31-CA- 10403
June 8, 1981
DECISION AND ORDER
Upon a charge filed on September 4, 1980, by
Automotive Employees, Laundry Drivers and
Helpers Local 88, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, and duly
served on S-G Metal Industries, Inc., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional Di-
rector for Region 31, issued a complaint and notice
of hearing on September 24, 1980, against Re-
spondent, 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 May 30,
1980, following a Board election in Case 31-RC-
4675, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about August 22, 1980,
and at all times thereafter Respondent has refused,
and continues to date 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. The complaint also al-
leges that commencing on or about August 22,
1980, and at all times thereafter, Respondent has
refused and continues to refuse to supply the Union
with information that is relevant to collective bar-
gaining, although the Union has requested and is
requesting it to do so. On October 1, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On February 2, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
I Official notice is taken of the record in the representation proceed-
ing, Case 31-RC-4675, as the term "record" is defined in Secs. 102.68
and 102.69 (g) of the Baord's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F. Supp. 573 (DC.
Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th
Cir. 1968); Sec. 9(d) of the NLRA, as amended.
256 NLRB No. 60
Summary Judgment. Subsequently, on February 5,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
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 and response to
the Notice To Show Cause Respondent essentially
contests the validity of the Union's certification.
Although Respondent admits that it has refused to
bargain with the Union, and has refused to supply
the Union with requested information, Respondent
denies that it thereby violated Section 8(a)(5) and
(1) of the Act. Specifically, Respodnent reasserts its
claim that the Union engaged in objectionable con-
duct prior to the election and that a second elec-
tion should be held. In addition, Respondent asserts
that, pursuant to a Freedom of Information Act re-
quest, it has received and expects to receive infor-
mation from the Acting Regional Director bearing
upon the investigation of Respondent's objections
to the election. It claims that such information
gives rise to factual issues concerning the Union's
alleged objectionable conduct thereby rendering
summary judgment improper. In the Motion for
Summary Judgment the General Counsel maintains
that Respondent is attempting to relitigate the
issues it raised in the related representation pro-
ceeding. We agree with the General Counsel.
Review of the record herein, including the
record in Case 31-RC-4675, reveals that on Febru-
ary 11, 1980, after a hearing and the submission of
a brief by Respondent, the Regional Director
issued a Decision and Direction of Election. No re-
quest for review of the Decision and Direction of
Election was filed. An election was conducted on
March 12, 1980, which resulted in a vote of 35 to
14 in favor of the Union and 1 void and no chal-
lenged ballots. On March 18, 1980, Respondent
filed timely objections to conduct affecting the re-
sults of the election. Respondent's objections al-
leged, inter alia, that: A union observer improperly
engaged employees waiting to vote in conversa-
tion; supervisors participated in the union organiza-
tion and election campaigns; partisan markings
were made on Board documents; material misrepre-
sentations were made to employees by the Union;
employee signatures on authorization cards were
fraudulently obtained; and employees were intimi-
dated and coerced by the Union.
S-G METAL INDUSTRIES, INC. 417
Following an investigation in which all parties
were allowed to submit evidence, the Regional Di-
rector issued a Supplemental Decision and Certifi-
cation of Respresentative in Case 31-RC-4675,
overruling Respondent's objections, finding that no
material issues of fact requiring a hearing existed,
and certifying the Union as the representative of all
employees in the designated unit. Thereafter, Re-
spondent filed a timely request for review of the
Regional Director's Supplemental Decision and
Certification of Representative. By telegraphic
order dated August 14, 1980, the Board denied Re-
spondent's request for review. It appears, therefore,
that Respondent is attempting to raise issues herein
which were raised and determined in the underly-
ing representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence,3 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. Accordingly, we 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 RESPONDENT
The Respondent, a Missouri corporation, is en-
gaged in the manufacture of aluminum ingot prod-
ucts at Gardena, California. In the course and con-
duct of its business operations, Respondent annual-
ly purchases and receives goods or services 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
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
2 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(f and 102 69(c).
3 The purported "previously unavailable evidence" obtained by Re-
spondent pursuant to its FOIA request relates only to the merits of the
representation case proceeding and, in particular, the Regional Director's
investigation thereof
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Automotive Employees, Laundry Drivers and
Helpers Local 88, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, 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 the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
billet and deox department employees, ship-
ping and receiving employees, truckdrivers,
and leadmen employed by Respondent at its
facility located at 1439 West 178th Street,
Gardena, California, excluding all office
clerical employees, professional employees,
guards, and supervisors as defined in the
Act.
2. The certification
On March 12, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 31, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on May 30, 1980, and the Union continues to be
such exclusive representative within the meaning of
the Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about August 18, 1980, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about August 22, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
S-G METAL NDUSTRIES INC
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that Respondent has, since
August 22, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, 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.
C. The Request for Information and
Respondent's Refusal
Commencing on or about August 18, 1980, and
at all times thereafter, the Union has requested that
Respondent provide it with certain relevant and
necessary information to assist the Union in carry-
ing on collective bargaining. Commencing on or
about August 22, 1980, and at all times thereafter
to date, Respondent has refused and continues to
refuse, to supply the requested information. All of
the information sought by the Union is plainly rele-
vant to collective-bargaining matters, would be
useful to the Union, and directly relates to the stat-
utory obligations and functions of the Union.4
Accordingly, we find that Respondent has, since
August 22, 1980, and at all times thereafter, refused
to provide the Union with information relevant to
collective bargaining and necessary to the Union in
carrying out its statutory obligations and that, by
such refusal, Respondent has engaged in and is en-
gaging in unfair labor practices 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
4 The information requested by the Union is as follows: The name, ad-
dress. classification, shift assignment, and starting time of each bargaining
unit employee; the original date of hire and present hourly pay rate of
each employee; the Employer's present vacation, sick leave, and funeral
leave policies; a copy of any current health, medical, and hospitalization
program including the total cost thereof, and amounts paid by the Em-
ployer and individuals and the number of employees in the unit not cov-
ered by such plan; the normal workweek and number of hours per day
each employee is required to work; the Employer's lunch policy; a copy
of the Employer's present rules; a list of each job in the unit; any bonus.
profit sharing, or retirement program, the cost thereof, and a copy of the
program and the number of employees covered; and any other terms and
conditions of employment and/or the benefits which apply to employees
in the unit.
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. We shall further order Respondent to
supply the Union with the information relevant to
collective-bargaining matters requested by the
Union on or about August 18, 1980.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. S-G Metal Industries, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Automotive Employees, Laundry Drivers and
Helpers Local 88, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
billet and deox department employees, shipping
and receiving employees, truckdrivers, and lead-
men employed by S-G Metal Industries, Inc., at its
facility located at 1439 West 178th Street, Gardena,
California, excluding all office clerical employees,
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 that Act.
4. Since May 30, 1980, 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.
S-G METAL INDUSTRIES, INC. 419
5. By refusing on or about August 22, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By refusing on or about August 22, 1980, and
at all times thereafter, to supply the Union with re-
quested information relevant to collective-bargain-
ing matters, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
7. By the aforesaid refusal to bargain, and refusal
to supply requested information, Respondent has
interfered with, restrained, and coerced, and is in-
terfering 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
meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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,
S-G Metal Industries, Inc., Gardena, 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
conditions of employment with Automotive Em-
ployees, Laundry Drivers and Helpers Local 88,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees,
billet and deox department employees, ship-
ping and receiving employees, truckdrivers,
and leadmen employed by Respondent at its
facility located at 1439 West 178th Street, Gar-
dena, California, excluding all office clerical
employees, professional employees, guards,
and supervisors as defined in the Act.
(b) Refusing to supply the Union with requested
information relevant to collective-bargaining mat-
ters.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreeement.
(b) Supply the Union with the information rele-
vant to collective-bargaining matters requested by
the Union on or about August 22, 1980.
(c) Post at its Gardena, California, facility copies
of the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the
Regional Director for Region 31, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 L.abor Relations Board" shall read "Posted Pursu-
ant 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 WIL NOT refuse to bargain collectively
concerning rates of pay, wages, hours and
other terms and conditions of employment
with Automotive Employees, Laundry Drivers
and Helpers Local 88, International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL. NOT refuse to supply the Union
with requested information relevant to collec-
tive-bargaining matters.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
S-G~~. ME A I D T , 41
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees,
billet and deox department employees, ship-
ping and receiving employees, truckdrivers,
and leadmen employed by us at our facility
located at 1429 West 178th Street, Gardena,
California; excluding all office clerical em-
ployees, professional employees, guards, and
supervisors as defined in the Act.
WE WILL supply the Union with the infor-
mation relevant to collective-bargaining mat-
ters requested by the Union on or about
August 22, 1980.
S-G METAL INDUSTRIES, INC.