Wayne Metal Co.

National Labor Relations Board - Board Decisions

Jul 28, 1980

250 N.L.R.B. 1185 (N.L.R.B. 1980)

WAYNE METAL COMPANY
Wayne Metal Company, Inc. and United Steelwork-
ers of America, AFL-CIO-CLC. Case 17-CA-
9399
July 28, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on January 15, 1980, by
United Steelworkers of America, AFL-CIO-CLC,
herein called the Union, and duly served on Wayne
Metal Company, Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
17, issued a complaint on January 23, 1980, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and 8(d) and Section 2(6) and (7)of
the National Labor Relations Act, as amended.
Copies of the charge and 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 the following: On
November 7, 1979, after a Board election in Case
17-RC-8743, Respondent's objections thereto, and
the Regional Director's report which recommend-
ed that said objections be overruled in their entire-
ty, the Board issued a Decision and Certification of
Representative' in which it adopted the Regional
Director's recommendations and certified the
Union as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit
found appropriate.2 Commencing on or about No-
vember 19, 1979, and at all times thereafter, Re-
spondent has refused, and continues to refuse, the
Union's request, dated November 14, 1979, to meet
with the Union, initiate negotiations for a labor
agreement, and supply the Union with certain in-
formation needed for collective-bargaining pur-
poses.
Respondent filed its answer to the complaint ad-
mitting in part, and denying in part, the allegations
in the complaint.
On March 17, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. Subse-
i 246 NLRB No, 61.
a Official notice is taken of the record in the representation proceed-
ing, Case 17-RC-8743, as the term "record" is defined in Sees. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosysrtems. 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. 773
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967). enfd 397 F 2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended
250 NLRB No. 148
quently, on March 21, 1980, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed no 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-
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 Motion for Summary Judgment
In its answer to the complaint, Respondent
admits that it refused the Union's request to bar-
gain and supply necessary and relevant informa-
tion. However, Respondent asserts that the certifi-
cation of the Union was improper for the reasons
set forth in its objections to the election in the un-
derlying representation proceeding.
A review of the record herein, including that in
Case 17-RC-8743, reveals that an election con-
ducted pursuant to a Stipulation for Certification
Upon Consent Election on June 13, 1979, resulted
in a vote of 36 to 30 in favor of the Union and I
challenged ballot. Thereafter, Respondent filed
timely objections to the election alleging that: (1)
the Union charged that two plant managers lied to
employees and stole wages and benefits from them;
(2) the Union falsely described Respondent's poli-
cies as to layoffs and promised certain increased
wages and benefits if it were voted in; (3) employ-
ee Robert Neff threatened to harm employee
Robert Loe; and (4) the Union guaranteed present
employees the opportunity to join it without
paying initiation fees, but did not make it clear that
the offer was not contingent on "signing up"
before the election.
After investigation, the Regional Director issued
a report on the objections on August 24, 1979, in
which he recommended that Respondent's objec-
tions be overruled in their entirety and that the
Union be certified. Thereafter, Respondent filed
timely exceptions to the Regional Director's report.
On November 7, 1979, the Board, having consid-
ered the Regional Director's report, Respondent's
exceptions thereto, and the entire record, adopted,
with one modification,3 the findings, conclusions,
3 The Regional Director recommended that the objection to the threat
of harm by Neff to Loe be overruled on the following grounds (a) there
was no evidence that NefWs conduct intimidated Loe in casting his ballot.
(b) Neffs statement was not sanctioned by the Union, and (c) Neffs sla-
tememt was isolated and did not create a general atmosphere of fear and
coercion which rendered a fair election impossible The Board disavowed
(a) as it is well established that proof of coercive effect is unnecessary in
Continued
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DECISIONS OF NATIONAL LABOR REALTIONS BOARD
and recommendations of the Regional Director and
certified the Union as the exclusive bargaining rep-
resentative of employees in the unit stipulated to be
appropriate.
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) of the Act is
not entitled to relitigate issues which were or could
have been litigated in a prior representation pro-
ceeding. 4
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 unavaialble 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 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
I. THE BUSINESS OF RESPONDENT
Respondent, a Missouri corporation, is engaged
in the manufacture of metal "tie-downs" at its fa-
cility in Marshfield, Missouri. Respondent, in the
course and conduct of its business operations
within the State of Missouri, annually purchase
goods and services valued in excess of $50,000 di-
rectly from sources located outside the State of
Missouri.
Respondent admits and 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 poli-
cies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
determining whether conduct may reasonably be said to tend to interfere
with an election. However, the Board found that (b) and (c) constituted a
sufficient basis for finding that the objection in question had no merit.
4 See Pitshburgh 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 10(.6
9 (c),
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production
and maintenance employees at Respondent's
Marshfield, Missouri, location, including truck-
drivers, leadmen, and plant superintendents,
but excluding office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
2. The certification
On June 13, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 17, designated the Union as
their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on November 7, 1979,
and the Union continues to be such exclusive rep-
resentative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Supply Relevant
Information and Respondent's Refusal
Commencing on or about November 14, 1979,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it and to
supply it with information necessary and relevant
for bargaining. Commencing on or about Novem-
ber 19, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to
refuse, to supply said information, and to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
November 19, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and to supply it with information
necessary and relevant for that purpose, and that,
by such refusal, 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.
1186
WAYNE METAL COMPANY
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.
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, supply the Union with information
necessary and relevant for the purpose of collective
bargaining, and 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.
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;
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. Wayne Metal Company, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees at Respondent's
Marshfield, Missouri, location, including truck-
drivers, leadmen, and plant superintendents, but ex-
cluding office clerical employees, professional em-
ployees, and guards 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 November 7, 1979, the above-named
labor organization has been and is now 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 November 19, 1979,
and at all times thereafter, to supply the above-
named labor organization with information neces-
sary and relevant for the purpose of collective bar-
gaining, and to bargain collectively with it as the
exclusive bargaining representative of all employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has 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
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,
Wayne Metal Company, Inc., Marshfield, Missouri,
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 Steelwork-
ers of America, AFL-CIO-CLC, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance employees at Respondent's
Marshfield, Missouri, location, including truck-
drivers, leadmen, and plant superintendents,
but excluding office clerical employees, profes-
sional employees, and guards and supervisors
as defined in the Act.
(b) Refusing to supply the above-named labor or-
ganization with information necessary and relevant
for the purpose of collective bargaining.
(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.
1187
DECISIONS OF NATIONAL LABOR REALTIONS BOARD
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, supply the above-named labor
organization with information necessary and rele-
vant to collective bargaining, and bargain with it 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 understanding in a signed agreement.
(b) Post at its Marshfield, Missouri, facility
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 17, 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.
(c) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
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 Labor 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 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-CLC, as the exclusive representative of
the employees in the unit described below.
WE WILL NOT refuse to supply the above-
named Union with information which is neces-
sary and relevant for the purpose of collective
bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, supply the above-
named Union with information necessary and
relevant for collective bargaining, and bargain
with it 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 em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time produc-
tion and maintenance employees employed
by us at our Marshfield, Missouri, location,
including truckdrivers, leadmen, and plant
superintendents, but excluding office clerical
employees, professional employees, and
guards and supervisors as defined in the Act.
WAYNE METAL COMPANY, INC.
1188