Slagle Mfg. Co.

National Labor Relations Board - Board Decisions

Nov 13, 1979

246 N.L.R.B. 449 (N.L.R.B. 1979)

SL AGI.E MANUFACTURING COMPANY
Slagle Manufacturing Company and United Steel-
workers of America, AFL-CIO-CLC. Case 16-
CA -8543
November 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(; AND MEMBERS JENKINS
AND PENEI.O
Upon a charge filed on June 13, 1979, by United
Steelworkers of America, AFL CIO-CLC. herein
called the Union, and duly served on Slagle Manufac-
turing Company. herein called Respondent, the Gen-
eral Counsel of the National Labor Relations Board.
by the Regional Director for Region 16, issued a com-
plaint on June 26, 1979, 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 () 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 May 11, 1979, ftil-
lowing a Board election in Case 16 RC-7847, 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 May 25, 1979, 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
June 30, 1979, Respondent filed its answer to the
complaint admitting the factual allegations in the
complaint, but denying that the Union is the validly
certified representative of its employees.
On July 10, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 20, 1979, 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. 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-
I Official notice is taken of the record in the representation proceeding.
Case 16-RC-7847 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 Electro.vsems, 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 (D.C.VA. 1967);
Follettrr Corp., 164 NLRB 37 1967), enfd. 397 F.2d 91 (7th Cir 1968): Sec.
9(d) of the NLRA. as amended.
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
Respondent, in its response to the Notice To Show
Cause, reargues the merits of its objections in the rep-
resentation case: namely, that the Hearing Officer
made erroneous rulings and findings therein. There-
fore, Respondent requests that another election be di-
rected.
Review of the record herein, including the record in
Case 16-RC 7847, reveals that on November 22,
1978, pursuant to a Stipulation for Certification Upon
Consent Election, an election was held in the appro-
priate unit. The tally of ballots showed that 50 ballots
were cast ftor and 38 against the Union, and there
were 7 challenged ballots, an insufficient number to
affect the results of the election.
On March 5. 1979, the Hearing Officer issued his
Report on Objections. in which he recommended that
the Employer's objections be overruled and that a
certification of representative issue. Thereafter, Re-
spondent filed timely exceptions to the Hearing Offi-
cer's report, requesting the Board to set aside the elec-
tion, or to reopen the hearing for admission of
testimony which was excluded therefrom.
On Mav 11, 1979. the Board issued a Decision and
Certification of Representative in which it adopted
the Hearing Officer's report and certified the Union
as the exclusive bargaining representative of the em-
ployees in the appropriate unit. It thus appears that
Respondent is merely attempting to relitigate issues
which were raised and determined adversely to it in
the underlying representation case.
It is well settled that in the absence of newly dis-
covered 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.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
'See Pittsburgh Plate Glass Co v L RB. 313 Ui.S 146, 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
246 NLRB No. 70
449
I)E (ISIONS OF NATIONAL. ILABOR RELATIONS BOARI)
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDIN(S ()I FA(I
I. HI1 BUSINISS OF RLSPO)NI)IFNI
Respondent has been, at all times material herein,
an Oklahoma corporation with an office in Tulsa,
Oklahoma, where it is engaged in the manufacture of
heat exchangers. During the past 12 months, Respon-
dent, in the course and conduct of its business opera-
tions, purchased goods and materials valued in excess
of $50,000 directly from suppliers located outside the
State of Oklahoma.
We find, on the basis of the foregoing, that 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
effectuate the policies of the Act to assert jurisdiction
herein.
11. III LABOR OR(;ANIZA IION INV()IVII)
United Steelworkers of America, AFL CIO-CLC,
is a labor organization within the meaning of Section
2(5) of the Act.
111. Iiii !NIAIR L.ABOR PRA('[I(TES
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, in-
cluding shop custodial employees, employed by
the Employer at its Tulsa, Oklahoma, facility at
909 N. Wheeling, but excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On November 22, 1978, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 16, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on May 11, 1979, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
13. ithe Requevt To Bargain and Respondent'S Re/i.vsal
Commencing on or about May 14, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. ('ommencing on or about
May 25, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, 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 25, 1979. 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 8a)(5) and (I) of the
Act.
IV. 1111 FF F('i OI iE NFAIR ABOR PRA(TI(lS
tIP()N ('O(MIR('E
The activities of Respondent set forth in section
Ill, above, occurring in connection with the 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. TlI RMll)Y
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 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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/h/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
450
SI.A(i.E MAN L FA(TURIN(i ('OMPANY
Cir. 1964). cert. denied 379 U.S. 817: Burnett (on-
slruction Company-.', 149 NLRB 1419, 1421 (1964).
enf'd. 350 F.2d 57 (10th C('ir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CO()N(CISI()NS ()1 AW
I. Slagle Manufacturing Compan. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Steelworkers of' America. AlIL ('I()
CILC. is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance emploees, in-
cluding shop custodial employees, employed hb the
Employer at its Tulsa. Oklahoma. facilit. at 9()9 N.
Wheeling, but excluding all office clerical emplo'ees.
professional employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(bh of the Act.
4. Since May) I 1, 1979. the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 May 25. 1979, and at all
times thereafter, to bargain collectivel1 with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of' Re-
spondent in the appropriate unit, 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, Respondent
has interfered with, retrained, and coerced, and is in-
terfering with, restraining, and coercing. employees in
the exercise of the rights guaranteed them in Section
7 of the Act, and thereby has engaged in and is en-
gaging 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 Rela-
tions Board hereby orders that the Respondent.
Slagle Manufacturing Company, Tulsa. Oklahoma.
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 con-
ditions 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, in-
cluding shop custodial employees. employed by
the Employer at its Tulsa. Oklahoma. facility at
909 N. Wheeling. but excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
(bh) 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 understand-
ing is reached. embody such understanding in a
signed agreement.
(b) Post at its place of business in Tulsa. Okla-
homa, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 16. 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enforced bh a Judgment of a tUnited States
Court of Appeals, the words in the notice reading "Posted b Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the UInited States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTI( To EMPI.OYEtES
Positli) BY ORDER OF 1ltE
NA I ONAI. LABOR REI.AIIONS 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
United Steelworkers of America, AFL CIO-
CI.C, as the exclusive representative of the em-
plo,,ees in the bargaining unit described below.
451
DECISIONS OF NA'IONAL L.ABOR RELATIONS BOARD
WIE will. NOr 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.
W- Wll.l, upon request, bargain with the
above-named Union, as the exclusive representa-
tive 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 production and maintenance employees,
including shop custodial employees, employed
by the Employer at its Tulsa, Oklahoma, facil-
ity at 909 N. Wheeling, but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
SILAGI.i MANtUA(CTURING( COMPANY
452