United States Steel Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1971

189 N.L.R.B. 119 (N.L.R.B. 1971)

AMERICAN BRIDGE DIVISION 119
American Bridge Division , United States Steel Corpo-
ration and United Steelworkers of America,
AFLr-CIO. Case 6-CA-5239
March 19, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on October 16, 1970 , by United
Steelworkers of America , AFL-CIO, herein called the
Charging Party, and duly served on American Bridge
Division , United States Steel Corporation , herein
called the Respondent , the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 6 , issued a complaint on
November 27, 1970, 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 a Trial Examiner were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September 21,
1970, following a hearing in Case 6-AC- 16, the Board
issued its Decision and Amendment of Certification
(185 NLRB No . 98), amending the certification in
Case 6-R-1264 by substituting "United Steelworkers
of America , Local Union No. 7637," herein called the
Union , for "Association of Technical and Clerical
Employees , American Bridge Division , Ambridge
plant ," herein called the Association , as the certified
bargaining representative of the employees of the
Respondent in the unit found appropriate in Case
6-R-1264 , 1 and that commencing on or about
October 9 , 1970, and at all times thereafter , Respon-
dent has refused , and continues 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 December
9, 1970 , Respondent filed its answer to the complaint
admitting in part , and denying in part , the allegations
in the complaint.2
On December 9, 1970 , an attorney purporting to act
on behalf of the Association filed , with the Regional
Director , a Motion to Intervene in the instant
proceeding on the ground that the Association is the
duly certified collective -bargaining representative of
I Official notice is taken of the record in the representation proceedings,
Cases 6-AC- 16 and 6-R-1264, as the term "record" is defined in Secs
102 68 and 102 69(f) of the Board's Rules and Regulations , Series 8, as
amended See LTV Electrosystemr, Inc, 166 NLRB 938, enfd . 388 F 2d 683
(C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v
Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378,
enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
the Respondent's employees in the appropriate unit
and that the Board's amendment of the certification is
invalid in that it was capricious, arbitrary, discrimina-
tory, and in excess of the Board's authority. The
Charging Party filed its opposition to the motion. On
December 17, 1970, the Regional Director denied the
motion.
On December 18, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment requesting the Board to find that
the Respondent has violated Section 8(a)(1) and (5) of
the Act and to issue an appropriate remedial Order.
Subsequently, on January 6, 1971, 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 an answer to
Notice To Show Cause while the Charging Party filed
a brief in connection with the Notice to Show Cause.
Meanwhile, on January 7, 1971, the attorney
purporting to act for the Association filed with the
Board a motion for special permission to appeal from
the Order of the Regional Director denying Motion to
Intervene. On January 8, 1971, the Charging Party
filed an opposition to the Association's appeal, and on
January 11, 1971, the Respondent, excepting to the
ruling of the Regional Director, filed a motion in
support of the appeal.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 answers to the Notice To Show Cause and to
the complaint and in its motion in support of the
request for special permission to appeal from the
Regional Director's denial of intervention filed on
behalf of the Association, the Respondent denies
that it has refused to bargain in violation of the Act,
contending that the Association is still a viable labor
organization which it has recognized, and continues
to recognize, as the duly certified collective-bargain-
ing representative and that the Board's amendment
of the certification to substitute the Union for the
Association was in excess of the Board's authority
2 On February 5, 1971, the parties filed a stipulation moving the Board
to amend the complaint and answer to reflect that the United Steelworkers
of America , AFL-CIO, is the Charging Party and United Steelworkers of
America , Local Union No 7637, is the Union with whom the Respondent
has refused to bargain The stipulation is approved and the complaint and
answer is amended to that effect
189 NLRB No. 25
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was an arbitrary and capricious ruling, discrimi-
nating in favor of the Union. We have reviewed the
entire record herein and find that the Respondent's
position without merit.
The Board's Decision and Amendment of Certifi-
cation in Case 6-AC-16, issued September 21, 1970,
shows that all employees in the bargaining unit were
members of the Association and that, at the special
affiliation meeting of October 5, 1969, a majority of
the nearly two-thirds of the Association members
who attended the meeting voted to affiliate with the
Union. The Board found that this vote was an
accurate reflection of the desires of the participating
membership. It also found that the officers of the
Association have, after affiliation, continued to
operate and represent the membership so that there
has been continuity of representation of the member-
ship through the Union, and that the Union has
pledged to administer the existing Association
contract which expires in November 1971. Accord-
ingly, the Board amended the certification in Case 6-
R-1264 to substitute the Union for the Association.
Thereafter, on October 12, 1970, the Respondent
filed a Motion for Reconsideration contending that
the Board's Decision and Amendment of Certifica-
tion departed from official precedent and contained
erroneous factual findings. The Respondent contend-
ed, as it had at the hearing in Case 6-AC-16, that the
Association's constitution required that action such
as affiliation be approved by a two-thirds vote of the
total membership, that the membership had not
voted by secret ballot, and that if, as a result of the
amendment, the Union ultimately became the
collective-bargaining agent of the employees, the
Respondent intended to apply the terms and condi-
tions of the then applicable Employer-USW Salaried
Labor Agreement and concurrently to discontinue
application of the Association Labor Agreement. On
October 22, 1970, the Charging Party filed an
opposition to the Respondent's motion. On Novem-
ber 5, 1970, the Board denied the Motion for
Reconsideration as lacking in merit.
In the instant proceeding, the Respondent renews
its contentions attacking the validity of the Board's
amendment of the certification and supports the
Association's Motion to Intervene, claiming that the
Association is a viable labor organization which it
currently recognizes and with which it deals. Funda-
mentally, the Motion to Intervene is based upon the
alleged invalidity of the Board's certification amend-
ment which had been raised and determined in Case
6-AC-16, the prior representation proceeding, and
3 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c)
4 Equipment Manufacturing, Inc, 174 NLRB No 74
5 The Association's Motion to Intervene is supported by 75 Association
members , one of whom is a former officer, considerably less than a
the alleged viability of the Association as a labor
organization.
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 proceeding.3
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.
The Board's amendment of the certification which
confirmed the validity of the affiliation vote at the
October 9, 1969, meeting, substituted the Union for
the Association as the collective-bargaining repre-
sentative of the employees in the appropriate unit,
and for collective-bargaining purposes the Associa-
tion has, in effect, become the Union.4 After the vote
at the affiliation meeting of October 9, 1969, the
Union avers that it "began to perform the rights and
assume the obligations of the Association," but, in its
dealings with the Respondent, it was compelled to
use the name of the Association only because the
Respondent refused to recognize the Board's substi-
tution of the Union for the Association and refused
to deal with the Union, as the Union. The Respon-
dent appears to have dealt with the Union in this
manner, and it has apparently turned over to the
Union, but only in the name of the Association, the
dues checked off under the Association Labor
Agreement. Whether the Association is a viable labor
organization or has been revived5 and whether,
therefore, the Respondent, as it argues, must honor
the Association Labor Agreement and deal only with
the Association, the fact is that the Respondent has
the obligation to recognize and deal with the Union
as the bargaining representative of its employees-an
obligation imposed upon it by virtue of the Board's
substitution of the Union for the Association in the
certification. Since we reaffirm the validity of our
original Decision and Amendment of Certification, it
follows that the Respondent's refusal to recognize
and deal with the Union as the exclusive bargaining
representative and its insistence upon doing so only
majority of the members of the Association and of the employees in the
bargaining unit at the time of the affiliation meeting. This group apparently
called a meeting of the Association at which the present officers of the
Union were purportedly recalled and at which a nominating committee
was appointed to schedule election of new officers
AMERICAN BRIDGE DIVISION
with the Association violates the Act. We shall,
accordingly , grant the Motion for Summary Judg-
ment . We shall also deny the appeal from the denial
of Motion to Intervene because intervention would
result in an attempt to attack again the validity of
our amendment to the certification-an attack which
we will not permit to be relitigated herein and
because the alleged viability of the Association as a
labor organization does not impair the Respondent's
obligation to honor the Board 's amendment of the
certification by recognizing and dealing with the
Union.
On the basis of the entire record , the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent , a New Jersey corporation with its
principal office located in Pittsburgh , Pennsylvania,
is engaged in the manufacture , distribution, and
nonretail sale of steel products . During the past 12
months , the Respondent received from points outside
the Commonwealth of Pennsylvania goods and
materials valued in excess of $50 ,000 for use at its
Ambridge, Pennsylvania, plant . During the same
period, Respondent shipped goods , materials, and
products valued in excess of $50,000 from its
Ambridge, Pennsylvania , plant directly to points
outside the Commonwealth of Pennsylvania.
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.
II. THE LABOR ORGANIZATION INVOLVED
The United Steelworkers of America , Local Union
No. 7637, is a labor organization within the meaning
of Section 2(5) of the Act.
III. 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 salaried or clerical employees and draftsmen
(including Design Draftsmen , Layout Draftsmen,
Detail Draftsman and Tracer), Tracer Draftsmen
and Engineers at the Ambridge plant ; excluding
Countermen, Scale Clerks , in the Mechanical
Maintenance Department (fabricating) salaried
Inspectors, plant protection employees , adminis-
trative (such as management, staff, specialists and
others doing work of a confidential nature and
121
directly pertaining to management functions),
confidential , professional and technical employ-
ees, all employees in the Industrial Engineering
Department , the Industrial Relations Depart-
ment , trainees , practice apprentices , supervisors,
assistant supervisors , and all supervisory employ-
ees with authority to hire , promote , discharge,
discipline , or otherwise effect changes in the
status of employees or effectively recommend
such action.
2. The certification
On September 21, 1970, the Board amended the
certification in Case 6-R-1264 to substitute the
Union for the Association as the bargaining repre-
sentative of the employees in said unit for the
purpose of collective bargaining with the Respon-
dent . Since September 21, 1970, the Union has been
and continues to be the exclusive representative of
the employees in said unit within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 8 , 1970, and at
all times thereafter , the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 9, 1970, and continu-
ing at all times thereafter to date, the 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.
Accordingly , we find that the Respondent has,
since October 9, 1970, 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 , Respon-
dent 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
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 recognize the Union as such
exclusive representative in the administration of the
current bargaining 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 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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd . 350 F.2d 57
(C.A. 10).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. American Bridge Division , United States Steel
Corporation , is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, Local Union
No. 7637, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All salaried or clerical employees and drafts-
men (including Design Draftsmen , Layout Drafts-
men, Detail Draftsman and Tracer), Tracer Drafts-
men and Engineers at the Ambridge plant; excluding
Countermen , Scale Clerks in the Mechanical Mainte-
nance Department (fabricating), salaried Inspectors,
plant protection employees , administrative (such as
management , staff , specialists and others doing work
of a confidential nature and directly pertaining to
management functions), confidential , professional
and technical employees, all employees in the
Industrial Engineering Department , the Industrial
Relations, Department , trainees, practice appren-
tices , supervisors, assistant supervisors , and all
supervisory employees with authority to hire, pro-
mote , discharge, discipline , or otherwise effect
changes in the status of employees or effectively
recommend such action constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since September 21, 1970, 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 October 9, 1970, 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,
American Bridge Division, United States Steel Corpo-
ration, Ambridge, 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
conditions of employment, with United Steelworkers
of America, Local Union No. 7637, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All salaried or clerical employees and draftsmen
(including Design Draftsmen, Layout Draftsmen,
Detail Draftsman and Tracer), Tracer Draftsmen
and Engineers at the Ambridge plant; excluding
Countermen, Scale Clerks in the Mechanical
Maintenance Department (fabricating), salaried
Inspectors, plant protection employees, adnunis-
trative (such as management, staff, specialists and
others doing work of a confidential nature and
directly pertaining to management functions),
confidential, professional and technical employ-
ees, all employees in the Industrial Engineering
Department, the Industrial Relations Department,
trainees , practice apprentices , supervisors, assist-
ant supervisors, and all supervisory employees
with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of
employees or effectively recommend such action.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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
AMERICAN BRIDGE DIVISION
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 recognize the
Union as such exclusive representative in the adminis-
tration of the current bargaining agreement.
(b) Post at the Ambridge, Pennsylvania, plant
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the
Regional Director for Region 6, 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,
defaced, or covered by any other material.
(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.
6 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 be
changed to 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 , Local Union No. 7637,
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 employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request , bargain with the above-
123
named Union, as the exclusive representative 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
recognize the Union as such exclusive representa-
tive in the administration of the current bargaining
agreement.
All salaried or clerical employees and drafts-
men (including Design Draftsmen, Layout
Draftsmen, Detail Draftsman and Tracer),
Tracer Draftsmen and Engineers at the
Ambridge Plant; excluding Countermen,
Scale Clerks in the Mechanical Maintenance
Department (fabricating), salaried Inspec-
tors, plant protection employees, administra-
tive (such as management, staff, specialists
and others doing work of a confidential
nature and directly pertaining to manage-
ment functions), confidential, professional
and technical employees, all employees in the
Industrial Engineering Department, the In-
dustrial Relations Department, trainees,
practice apprentices, supervisors, assistant
supervisors, and all supervisory employees
with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the
status of employees or effectively recom-
mend such action.
AMERICAN BRIDGE
DIVISION UNITED STATES
STEEL CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1536 Federal Building, 1000 Liberty Avenue,
Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.