Steele & Associates, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1967

168 N.L.R.B. 759 (N.L.R.B. 1967)

STEELE & ASSOCIATES, INC. 759
Steele & Associates, Inc. and International Associa-
tion of Bridge, Structural & Ornamental Iron
Workers, Shopmen's Local Union No. 527,
AFL-CIO. Case 6-CA-4023
December 8, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a charge filed by International Association
of Bridge, Structural & Ornamental Iron Workers,
Shopmen's Local Union No. 527, AFL-CIO,
herein called the Union, the General Counsel for
the National Labor Relations Board, by the Re-
gional Director for Region 6, issued a complaint
dated September 13, 1967, against Steele & As-
sociates, Inc., herein called Respondent, alleging
that the Respondent had engaged in and was engag-
ing in unfair labor practices within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Co-
pies of the charge and of the complaint and notice
of the hearing were duly served upon the Respond-
ent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on July 26,
1967, the Regional Director for Region 6 certified
the Union as the collective-bargaining agent of the
Respondent's employees in the unit found appro-
priate,) and that, since on or about July 26, 1967,
the Respondent has failed or refused to recognize
and bargain with the Union as the exclusive bar-
gaining agent of the employees at the Respondent's
McKeesport plant, although the Union has
requested and is requesting it to do so. On Sep-
tember 15, 1967, the Respondent filed its answer,
denying the commission of the unfair labor prac-
tices alleged and presenting an affirmative defense
to the allegations.
On October 2, 1967, the General Counsel filed
with the Board a motion for summary judgment,
submitting, in effect, that the Respondent's answer,
including its affirmative defenses, raised no issues
which have not been previously litigated in the prior
representation case (Case 6-RC-4447) and, there-
fore, an order should be issued finding all allega-
tions in the complaint to be true and granting his
motion for summary judgment. The General Coun-
sel further moved that prior to, and without the
necessity of, a hearing, the Board issue a decision
against the Respondent containing findings of fact
and conclusions of law in accordance with the al-
legations of the complaint, and an order remedying
the unfair labor practices so found. Thereafter, on
October 3, 1967, the Board issued an order trans-
ferring the proceeding to the Board and a notice to
show cause, on or before October 16, 1967, why
the General Counsel's motion for summary
judgment should not be granted. On November 13,
1967, the Respondent filed an opposition to
General Counsel's motion for summary judgment.
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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
In its opposition to the General Counsel's motion
for summary judgment, the Respondent contends,
in substance, that an outstanding 10(k) determina-
tion of dispute in favor of employees represented by
another labor organization2 constitutes a bar to the
certification of the Union and that the Board's deni-
al of its request for review of the Regional
Director's Decision and Direction of Election did
not constitute an adjudication of that issue as
litigated in the representation case.3 We find these
contentions to be without merit. Respondent,
through its affirmative defenses, is merely seeking
to relitigate matters decided by the Board in the
prior representation proceeding.
The record before us establishes that on June 19,
1967, the Regional Director issued his Decision
and Direction of Election, finding, inter alia, that
the aforementioned work assignment of the Board,
arising out of a jurisdictional controversy in the
State of New York, did not bar a question concern-
ing representation with respect to, Respondent's
employees at McKeesport, Pennsylvania.
Thereafter, the Employer filed with the Board a
request for review of the Regional Director's Deci-
sion, which was denied by the Board on July 5,
1967. On July 18, 1967, a secret-ballot election was
conducted among employees at the Respondent's
McKeesport plant, under the supervision of the Re-
gional Director for Region 6, in which the Union
received a majority of the valid votes cast.
Thereafter, on July 26, the Regional Director is-
sued a certification of representative to the Union
as the exclusive bargaining representative of the
Employer's employees.
On or about July 26, the Union requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of the
employees. In response to this request, the Respond-
' Certification of representative issued July 26, 1967, in Case
6-RC-4447 (not published in NLRB volumes).
2 Structural Steel and Bridge Painters of Greater New York, Local 806,
AFL-CIO (Steele & Associates, Inc.), 150 NLRB 1672.
3 See, however, Sec. 102 67(b), et seq., of the Board Rules and Regula-
tions, Series 8, as amended.
168 NLRB No. 108
760 DECISIONS OF NATIONAL
ent, by a letter dated September 8, 1967, advised
that it would not negotiate with the Union because
it considered the Board's certification of the Union
to be erroneous.
We find no basis for entertaining the Respond-
ent's contention that the Board's certification of
the Union was inappropriate. It is well established
that, in the absence of newly discovered or previ-
ously unavailable evidence, a respondent is not en-
titled to relitigate in an 8(a)(5) proceeding issues
which were or could have been raised in a related
representation proceeding.4
As all material issues have previously been de-
cided by the Board, or stand admitted by the failure
of the Respondent to properly controvert the aver-
ments of the General Counsel's motion, there are
no matters requiring a hearing before a Trial Ex-
aminer. Accordingly, General Counsel's motion for
summary judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times
material herein, a corporation duly organized and
existing under the laws of the State of Georgia and
is engaged in business as corrosion engineers and
contractors, specializing in the field of protective
coating applications. It operates in various States of
the United States and also has a plant located in
McKeesport, Pennsylvania, involved in this
proceeding, where it is engaged in the fabrication
and processing of steel beams and other items. Dur-
ing the past year, Respondent's purchases of
materials, which it received directly from outside
the State in which it performed work, were in ex-
cess of $100,000. During the past year, Respondent
sold products which it shipped directly from its
plant within the Commonwealth of Pennsylvania to
points outside that Commonwealth valued in excess
of $50,000.
We find, on the basis of the foregoing, that the
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.5
II. THE LABOR ORGANIZATION INVOLVED
International Association of Bridge, Structural &
Ornamental Iron Workers, Shopmen's Local Union
No. 527, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
Pittsburgh Plate Glass Company v N L R.B , 313 U.S. 146.
We note that the Board asserted jurisdiction over the Respondent in
ajurisdictional dispute proceeding . See Structural Steel and Bridge Pain-
LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein, the following em-
ployees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All production and maintenance employees at the
Employer's McKeesport, Pennsylvania, plant, ex-
cluding all other employees, welding subcontrac-
tors' employees, irregular part-time employees, of-
fice clerical employees and guards, professional em-
ployees, and supervisors as defined in the Act.
2. The certification
On July 18, 1967, a majority of the emloyees of
the Respondent in said unit, in a secret election con-
ducted under the supervision of the Regional
Director for Region 6, designated the Union as
their representative for the purpose of collective
bargaining with the Respondent. On July 26, 1967,
the Regional Director for Region 6 certified the
Union as the collective-bargaining representative
of the employees in said unit, and the Union con-
tinues to be such representative.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on or about July 26, 1967, and con-
tinuing to date, the Union has requested and is
requesting the Respondent to bargain collectively
with it as the exclusive collective-bargaining
representative of all the employees in the above-
described unit. Since on or about July 26, 1967, and
continuing to date, the Respondent did refuse, and
continues to refuse, to bargain collectively with the
Union as the exclusive collective-bargaining
representative of all the employees in said unit.
We find that the Union has been at all times since
July 18, 1967, and now is the exclusive bargaining
representative of all the employees in the above-
described unit, within the meaning of Section 9(a)
of the Act. We further find that the Respondent has,
since on or about July 26, 1967, refused to bargain
collectively with the Union as the exclusive bar-
gaining representative of its employees in the ap-
propriate unit, and that, by such refusal, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
ters of Greater New York, Local 806, AFL-CIO (Steele & Associates,
Inc.), supra
STEELE & ASSOCIATES. INC. 761
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, in-
timate, 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 the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom and, upon request, bar-
gain 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.
CONCLUSIONS OF LAW
1. Steele & Associates, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Association of Bridge, Struc-
tural & Ornamental Iron Workers, Shopmen's
Local Union No. 527, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees
employed at the Employer's McKeesport, Pennsyl-
vania, plant, excluding all other employees, welding
subcontractors' employees, irregular part-time em-
ployees, office clerical employees and guards,
professional employees, and supervisors as defined
in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since July 26, 1967, 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 July 26, 1967, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
the Respondent in the aforesaid appropriate unit,
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing, its
employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, and has thereby en-
gaged 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
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
Relations Board hereby orders that the Respond-
ent, Steele & Associates, Inc., McKeesport,
Pennsylvania, 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 International Associa-
tion of Bridge, Structural & Ornamental Iron Work-
ers, Shopmen's Local Union No. 527, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees em-
ployed at the Employer's McKeesport, Pennsyl-
vania, plant, excluding all other employees, welding
subcontractors' employees, irregular part-time em-
ployees, office clerical employees and guards,
professional employees, and supervisors as defined
in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of the rights guaranteed to them by 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 un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Post at its McKeesport, Pennsylvania, place
of business, copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 6, after
being duly signed by the Respondent's representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
'' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 6, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with International Association of Bridge,
Structural & Ornamental Iron Workers, Shop-
men's Local Union No. 527, 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 em-
ployees 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 represent-
ative of all our 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 em-
ployees employed at the Employer's
McKeesport, Pennsylvania, plant, exclud-
ing all other employees, welding subcon-
tractors' employees, irregular part-time
employees, office clerical employees and
guards, professional employees, and su-
pervisors as defined in the Act.
Dated By
STEELE & ASSOCIATES,
INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222,
Telephone 644-2977.