A-1 Sheet Metal Works, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1975

218 N.L.R.B. 962 (N.L.R.B. 1975)

962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A-1 Sheet Metal Works, Inc. and Sheet Metal
Workers' International Association, Local Union
No.. 127, AFL-CIO. Case 1-CA-10406
June 27, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on January 23, 1975, by Sheet
Metal Workers' International Association, Local
Union No. 127, AFL-CIO, herein called the Union,
and duly served on A-1 Sheet Metal Works, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 1, issued a complaint
on February 27, 1975, 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 September 24,
1974, following a Board election in Case 1-RC-
13063 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 11 and that,
commencing on or about December 13, 1974, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On March 18, 1975, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint, and setting forth affirmative defenses.
On April 7, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 22, 1975, 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 Notice To Show Cause entitled "Resp-
ondent's Showing of Cause Why the General
1 Official notice is taken of the record in the representation proceeding,
Case 1-RC-13063, 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 Electrosystems, 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); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1957);
218 NLRB No. 142
Counsel's Motion for Summary Judgment Should
Not be Granted."
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 to the complaint, Respondent denies
its status as an employer and the Union's status as a
labor organization within the meaning of the Act, the
conduct of the election, and the Union's majority
status and certification as a result thereof. Affirma-
tively, Respondent asserts that the Union's majority
status and certification are invalid, based on evi-
dence, newly discovered or unavailable at the time of
the hearing in the representation case, which has' a
bearing on' the results in that proceeding. In its
response to the Notice to Show Cause, Respondent
reasserts its contention concerning the newly discov-
ered evidence in more detail and attaches exhibits in
support of this contention.
Review of the record, including that of the
representation proceeding, indicates that following
an election2 conducted on February 1, 1974, in
which the Union received a majority of the votes
cast, Respondent filed timely objections to conduct
affecting the results of the election. Respondent
alleged that (1) the Union offered to waive its
initiation fee for employees who signed membership
authorization cards before the election, and (2) by
the above and other acts the Union had interfered
with a free choice in the election. Following
investigation, the Regional Director issued a Supple-
mental Decision on Objections on March 15, 1974,
fmding no merit in Objection 2, and that Objection I
involved issues requiring credibility determinations
which should be made on the basis of a record
developed at a hearing. After the hearing on April 29,
1974, the Hearing Officer issued his Report on
Objections on June 4, 1974, finding, inter alia, that
the Union's agent had advised employees that there
would be no initiation fees for current employees,
and that there was no evidence that the waiver of fees
was used to induce any employee to sign an
authorization card. He further found that the Union
agent had not misrepresented the waiver of initiation
,Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (CA. 7, 1968); Sec.
9(d) of the NLRA.
2 The election was conducted pursuant to a Decision and Direction of,
Election issued by the Regional Director on January 2, 1974, in which it was
found, inter aha, that on the basis of facts set forth therein the Respondent
was an employer engaged in commerce and the Union a labor organization
within the meaning of the Act.
A-1 SHEET METAL WORKS, INC.
fees, but had stated policy on the basis of his
experience, and that whether or not the Union acted
ultra vires is not material to whether the waiver was
proper. On these bases, he recommended that
Respondent's Objection 1 be overruled. Respondent
filed timely exceptions to this report assigning error
to several of the Hearing Officer's determinations.
On September 24, 1974, the Regional Director issued
his Second Supplemental Decision on Objections in
which he adopted the Hearing Officer's findings,
conclusions, and recommendations and certified the
Union. Respondent then requested review of this
decision by the Board, again asserting that the
Hearing Officer had erred. On November 13, 1974,
the Board denied Respondent's request for review as
it raised no substantial issues warranting review.
As noted above, Respondent offers evidence which
it asserts was unavailable at the time of the hearing in
the representation case. This evidence consists of
alleged copies of contracts between the Union and
other employers which contain provisions whereby
the particular employer is to deduct, inter alia,
initiation fees from the wages of employees so
desiring. By these documents, Respondent essentially
seeks to raise issues concerning the testimony of a
union agent at the representation case hearing to the
effect that employees of one of these employers pay
no initiation fee. We note that approximately a year
has elapsed since the representation case hearing,
during a substantial portion of which Respondent
was before the Regional Director or the Board
litigating issues involving the Union's offer to waive
initiation fees. Respondent makes no showing that,
through the exercise of due diligence, it could not
have produced these documents in those proceedings
and litigated, this matter. Moreover, the statement of
the Union agent made at the hearing, subsequent to
the, offer to waive fees and the election, has no
bearing on the validity of the offer itself made prior
to the election during the organizational campaign.
In these circumstances, we are not disposed to
disturb our rulings in the representation case as a
result of Respondent's alleged previously unavailable
evidence or order a hearing thereon in this proceed-
ing.
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
3 :;ee Pittsburgh Plate Glass Co. v. N.L RB., 313 U.S. 146, 162 (1941);
Rulei . and Regulations of the Board, Secs . 102.67(f) and 102.69(c)
4 With regard to Respondent 's lack of knowledge of the filing and service
of the charge in its answer, we note that the record herein contains the
unfair labor practice charge with its filing date as well as a form indicating
963
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.4 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 a Massachusetts corporation with its
principal office and place of business at 919 Hartford
Turnpike (Route 20) in the city of Shrewsbury,
county of Worcester, Commonwealth of Massachu-
setts, where it is and at all times material hereto has
been engaged in the manufacture, sale, and distribu-
tion of sheetmetal fabrications and related products.
In the course of its business during the past year,
Respondent purchased materials valued in excess of
$50,000, which it received directly from sources
outside the Commonwealth of Massachusetts.
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
Sheet Metal Workers' International Association,
Local Union No. 127, AFL-CIO , is a labor organiza-
tion 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:
service thereof by registered mail, and a return receipt therefor signed by
Respondent's agent. Absent any controverting evidence we find that the
charge was filed and service thereof was effected on Respondent, as alleged
in the complaint.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees in-
cluding truck drivers, shipping and receiving
employees employed at the Employer's Shrews-
bury, Massachusetts, location, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On February 1, 1974, 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 1 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on September 24, 1974, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing. on or about November 16, 1974, 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 December 13, 1974, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that the Respondent has,
since December 13, 1974, 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
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.
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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in ' the
appropriate 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. A-1 Sheet Metal Works, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Sheet Metal Workers' International Associa-
tion, Local Union No. 127, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees
including truck drivers, shipping and receiving
employees employed at the Employer's Shrewsbury,
Massachusetts, location, excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since September 24, 1974, 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 December 13, 1974,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
A-1 SHEET METAL WORKS, INC.
^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 A-1
Sheet Metal Works, Inc., Shrewsbury, Massachu-
setts, 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 Sheet Metal Work-
ers, International Association, Local Union No. 127,
AIFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees in-
cluding truck drivers, shipping and receiving
employees employed at the Employer's Shrews-
bury, Massachusetts, location, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) 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 fords 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.
(b) Post at its Shrewsbury, Massachusetts, location
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's representatives, shall be
posted by Respondent immediately upon receipt
965
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 1, in
writing, within 20 days from the date of this Order,
what steps have been 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 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 Sheet
Metal Workers' International Association, Local
Union No. 127, 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 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-
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 truck drivers, shipping and
receiving employees employed at the Em-
ployer's Shrewsbury, Massachusetts, loca-
tion, excluding all office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
A-1 SHEET METAL
WORM, INC.