Sterling_Salem Corp.

National Labor Relations Board - Board Decisions

Aug 12, 1977

231 N.L.R.B. 336 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sterling-Salem Corporation, a subsidiary of Katy
Industries, Inc. and United Steelworkers of Ameri-
ca, AFLCIO. Case 8-CA-10808
August 12, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Upon a charge filed on February 18, 1977, by
United Steelworkers of America, AFL-CIO, herein
called the Union, and duly served on Sterling-Salem
Corporation, a subsidiary of Katy Industries, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 8, issued a complaint
and notice of hearing on March 30, 1977, 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 (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 December 17,
1976, following a Board election in Case 8-RC-
10620 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 January 4, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On April 14, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On April 25, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 2, 1977, 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. On May 25, 1977, Respondent filed a
response to Notice To Show Cause and brief in
support entitled "Employer's Opposition to Counsel
for General Counsel's Motion for Summary Judg-
ment."
I Official notice is taken of the record in the representation proceeding,
Case 8--RC-10620, 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 Electrrrosstems, 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); Intertrpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
231 NLRB No. 59
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
In its answer and opposition to the Motion for
Summary Judgment, Respondent in substance denies
the unit and the representative status of the Union on
the grounds of (1) the failure to find the election
barred by a collective-bargaining contract; (2) the
omission of the employee shop committee from the
ballot; (3) the exclusion of draftsmen from the uriit;
and (4) the certification of the election results
without investigating Respondent's election objec-
tion. In his Motion for Summary Judgment and brief
in support, counsel for the General Counsel contends
that the pleadings raise no issue of fact which require
a hearing or which were not previously presented to
and decided by the Board. We agree.
Review of the entire record in this proceeding,
including that in Case 8-RC-10620, shows that at the
representation case hearing Respondent contended
that (1) a collective-bargaining agreement between it
and the employee shop committee barred an election,
and (2) draftsmen should be included in the
requested production and maintenance unit. In his
Decision and Direction of Election issued November
15, 1976, the Regional Director found that (1) the
proffered agreement, embodied in a bulletin signed
only by Respondent's president and covering only
economic matters, was not adequate to bar an
election under Appalachian Shale Products Co.,2 and
(2) draftsmen should be excluded from the unit. He
also found the employee shop committee to be a
statutory labor organization, but determined that it
would not be placed on the ballot because it had not
intervened in the proceeding. Respondent filed a
request for review and brief in support, reiterating its
unit contention and seeking dismissal of the petition
on the grounds that (1) the bulletin merely updated
the previous contract which was signed by the parties
and contained provisions in addition to economic
matters3 and that together they constituted a
contract bar to the election, and (2) the failure to
place the shop committee on the ballot was a denial
of due process because the shop committee was not
notified of the hearing or advised of its right to
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec.
9(d) of the NLRA, as amended.
2 121 NLRB 1160(1958).
3 Respondent attached to its request for review the onginal contract
which was unavailable at the time of the hearing.
336
STERLING-SALEM CORP.
intervene. On December 8, 1976, the Board denied
Respondent's request as raising no substantial issues
warranting review.
The election was held on December 10, 1976, and
the tally furnished on that date showed a majority for
the Union. In the absence of objections, the Acting
Regional Director certified the Union on December
17, 1976. By mailgram dated December 17, 1976,
Respondent informed the Region that it was filing
"exceptions" to the election on the ground that the
shop committee had not been allowed a place on the
ballot. By letter dated December 20, 1976, the Acting
Regional Director informed Respondent that its
objection was untimely and rejected because its
mailgram had been received on December 20, 1976,
and, in accordance with Section 102.69(a) of the
Board's Rules, the period for filing objections to the
election had elapsed on December 17, 1976. Respon-
dent failed to file a request for Board review of the
Acting Regional Director's certification of the Union
and his rejection of Respondent's objection.
In its opposition to the Motion for Summary
Judgment, Respondent for the first time asserts that
it filed a timely objection called "exceptions" by
telegram phoned to the Regional Director on
December 17, 1976, and that it confirmed these
"exceptions" by a Western Union mailgram dated
December 17, 1976. As indicated above, the mail-
gram was not received by the Regional Office until
December 20, 1976. None of the foregoing communi-
cations constitute compliance with Section 102.69(a)
of the Board's Rules and Regulations, Series 8, as
amended, which requires that an original and three
copies of any objection be filed with the Regional
Director within 5 days after the tally has been
furnished. Assuming that the objection had been
timely and properly filed, Respondent is not now
entitled to Board consideration of the issues of the
timeliness of its objection and of the validity of the
certification, having had the opportunity for Board
consideration of those issues and not having taken
the opportunity.4 Furthermore, the substance of
Respondent's objection had been previously consid-
ered by the Board since the issue of the failure to
place the shop committee on the ballot was raised in
Respondent's request for review in the underlying
representation case and was rejected by the Board
when review was denied. It thus appears that
4 Cindy's Restaurants, Inc., 229 NLRB 41 (1977).
' 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).
I In its answer Respondent denies the requests and refusals to bargain
and provide certain information. Attached to the Motion for Summary
Judgment as exhibits which contents Respondent does not controvert are:
(l) A letter from Respondent to the Union dated January 3, 1977, stating
that it was seeking a court ruling on the certification and that it would serve
no useful purpose to negotiate a contract with the appeal pending: (2) a
letter from the Union to Respondent dated January 5, 1977, requesting
Respondent is attempting to raise issues which were,
or could have been, timely raised in the underlying
representation proceeding and this it may not do.
It is well settled that in the absence of newly
discovered 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 proceedings
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the 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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.6s We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times
material herein, an Ohio corporation with an office
and place of business located in Salem, Ohio, the
only facility involved in this proceeding, where it is
now, and has been at all times material herein,
engaged in the manufacture of boat trailers, septic
systems, and power transformers. Respondent annu-
ally ships products valued in excess of $50,000 from
its place of business in Salem, Ohio, directly to points
located outside the State of Ohio.
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.
certain specific information relevant and necessary for collective bargain-
ing; and (3) a reply from Respondent to the Union dated January 7, 1977,
refusing to provide such information until a court decision was rendered.
Since a specific request is not required where, as here, a demand for
bargaining would have been futile, Richardson Chemical Company, Allied
Kelite Products Division, 222 NLRB 5 (1976), and since, in any event, a
request for information is tantamount to a request for bargaining, Rod-Ric
Corporation, 171 NLRB 922 (1968), enfd. 428 F.2d 948 (C.A. 5, 1970), we
find the denials to be frivolous and the allegations regarding the various
requests and refusals to be admitted to be true.
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees,
including truckdrivers, shipping employees, and
plant clerical employees at Respondent's Salem,
Ohio, facility, but excluding all office clerical
employees, salesmen, draftsmen, and professional
employees, guards and supervisors as defined in
the Act.
2. The certification
On December 10, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 8, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on
December 17, 1976, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. Respondent's Refusal To Bargain
By letter dated January 3, 1977, Respondent, by its
attorney, stated its intention to refuse to bargain with
the certified Union. By letter dated January 5, 1977,
the Union requested certain specific information
with respect to wages and fringe benefits relevant
and necessary for collective bargaining from Respon-
dent and by letter dated January 7, 1977, Respon-
dent refused to provide such information.
Accordingly, we find that the Respondent has,
since January 4, 1977, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive bargaining representative of the employees
in the appropriate unit, and to provide information
relevant and necessary for collective bargaining, and
that by such refusals Respondent has engaged in,
and is engaging 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 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)(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,
and provide information relevant and necessary for
collective bargaining.
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 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);
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. Sterling-Salem Corporation, a subsidiary of
Katy Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Steelworkers of America, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees,
including truckdrivers, shipping employees, and
plant clerical employees at Respondent's Salem,
Ohio, facility, but excluding all office clerical
employees, salesmen, draftsmen, and professional
employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
338
STERLING-SALEM CORP.
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since December 17, 1976, 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 January 3, 1977, 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, and to provide
information relevant and necessary for collective
bargaining, 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)(l) 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 the Respondent,
Sterling-Salem Corporation, a subsidiary of Katy
Industries, Inc., Salem, Ohio, 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
conditions of employment with United Steelworkers
of America, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All production and maintenance employees,
including truckdrivers, shipping employees, and
plant clerical employees, at the Employer's Salem,
Ohio, facility, but excluding all office clerical
employees, salesmen, draftsmen, and professional
employees, guards and supervisors as defined in
the Act.
(b) Refusing to provide the above-named labor
organization, upon request, information relevant and
necessary to the purpose of collective bargaining.
(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 and provide the above-named
labor organization, upon request, information rele-
vant and necessary for collective bargaining.
(b) Post at its Salem, Ohio, facility copies of the
attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily 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 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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 United
Steelworkers of America, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT refuse to provide the above-
named Union with information relevant and
necessary for the purpose of collective bargaining.
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-
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 production and maintenance employ-
ees, including truckdrivers, shipping employ-
ees, and plant clerical employees at Respon-
dent's Salem, Ohio, facility, but excluding all
office clerical employees, salesmen, drafts-
men, and professional employees, guards
and supervisors as defined in the Act.
STERLING-SALEM
CORPORATION, A
SUBSIDIARY OF KATY
INDUSTRIES, INC.
340