Combustion Engineering, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 302 (N.L.R.B. 1969)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Combustion Engineering , Inc. Saginaw Division and
Bricklayers, Masons and Plasterers' Union-Local
No. 7, Saginaw , Michigan, Bricklayers, Masons
and Plasterers' International Union of America,
AFL-CIO. Case 7-CA-7276
June 30, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Upon a charge filed by Bricklayers , Masons and
Plasterers' Union-Local No. 7, Saginaw , Michigan,
Bricklayers , Masons and Plasterers' International
Union of America , AFL-CIO, herein called the
Union , the General Counsel for the National Labor
Relations Board , by the Regional Director for
Region 7, issued a complaint dated April 22, 1969,
against Combustion Engineering , Inc., Saginaw
Division , herein called Respondent , alleging that the
Respondent had engaged in and was engaging 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 . Copies
of the charge and complaint and notice of hearing
were duly served on the Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance , that on February
11, 1969, the Regional Director for Region 7
certified the Union as the collective-bargaining agent
of the Respondent ' s employees in the unit found
appropriate,' and that, on or about February 11,
1969, and thereafter, the Respondent failed and
refused to recognize and bargain with the Union as
such exclusive bargaining representative of the
employees in the certified unit at the Respondent's
plant, although the Union has requested and is
requesting Respondent to do so . On May 5, 1969,
the Respondent filed its answer to the complaint,
denying the commission of the unfair labor practices
alleged and presenting its affirmative defense to the
allegations.
On May 9, 1969, the General Counsel filed with
the Board a Motion to Transfer Case to the Board
and Motion for Summary Judgment, submitting, in
effect, that the Respondent' s answer , including its
affirmative defenses, raise no issues which have not
or could not have been litigated in the prior
representation case; that the operative facts
admitted or affirmatively pleaded suffice to establish
the violations alleged in the complaint ; and that,
therefore, the Board should grant his Motion for
Summary Judgment, and issue a Decision and
Order finding the violations alleged and remedying
the unfair labor practices so found. Thereafter, on
May 13, 1969, the Board issued an Order
Transferring the Proceeding to the Board and a
'Case 7-RM-655 , not printed in NLRB volumes
Notice to Show Cause , on or before May 26, 1969,
why the General Counsel ' s Motion for Summary
Judgment should not be granted . On May 26, 1969,
the Respondent filed an opposition to the General
Counsel ' s Motion for Summary Judgment.
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 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
that the certified unit is inappropriate and that it is
entitled to a hearing in order to introduce "newly
discovered and previously unavailable evidence"
bearing on this issue . Such evidence consists of (1)
the opinions expressed by an arbitrator in resolving
the dispute between the Union and the United
Steelworkers of America , AFL-CIO,' under the
AFL-CIO No-Raiding Pact machinery , and (2)
evidence discovered during the course of a
"tangently related" investigation bearing on the
"past relationship between bricklayer employees and
representation by Steelworkers Union . . . . " It is
not alleged that the arbitrator ' s opinions were based
on evidence which was not or could not have been
presented to the Board at the representation hearing.
The evidence Respondent may have uncovered in the
course of its subsequent investigation has not been
identified ; nor has Respondent asserted that such
evidence , whatever it may be , could not have been
discovered by diligent preparation for the hearing in
representation Case 7-RM -655 or that it would
require a different result . Thus, Respondent has not
satisfied the requirements of Section 102.48 (d)(1) of
the Board's Rules and Regulations , Series 8, as
amended . Accordingly , it is not entitled to an
additional hearing on the representation issues.
The record before us establishes that on
December 1, 1967, the Regional Director issued his
Decision and Direction of Election , finding, inter
alia, that a unit of bricklayers at Respondent's
Saginaw, Michigan , location was appropriate.
Thereafter , on December 9, 1968, while a Request
for Review of the Regional Director ' s Decision was
pending before the Board , Respondent moved the
Board to remand the representation matter to the
Regional Director "in view of new factors." That
motion was denied by the Board on January 15,
1969. Thereafter , an election was conducted among
the bricklayer employees at Respondent ' s Saginaw,
Michigan, location, under the supervision of the
Regional Director for Region 7. The tally of ballots
showed that the Union received a majority of the
'Intervenor in the representation case.
177 NLRB No. 34
COMBUSTION ENGINEERING, INC.
valid votes cast. On January 24, 1969, Respondent
filed objections with the Regional Director, alleging,
inter alia , that the Board's failure to grant its earlier
motion constituted prejudicial error. On February
11, 1969, the Regional Director issued a
Supplemental Decision on Objections and
Certification of Representative, overruling the
Respondent's objections in toto and certifying the
Union as the exclusive bargaining representative of
Respondent's bricklayer employees at its Saginaw,
Michigan, location. Thereafter, by letters dated
January 28, February 21, and March 20, 1969, the
Union requested and is requesting the Respondent
to bargain collectively with it as the exclusive
collective-bargaining representative of the employees
in the unit described above. In response to these
requests, Respondent has, by letters dated February
11 and 28, 1969, refused and continues to refuse to
recognize or bargain with the Union.
As all material issues have previously been
decided by the Board, or stand admitted by the
failure of the Respondent to deny the essential
allegations of the General Counsel's motion, there
are no matters requiring a hearing before a Trial
Examiner. We find no basis for entertaining the
Respondent's unit contention. It is well established
that in the absence of newly discovered or previously
unavailable evidence, a respondent is not entitled to
relitigate in an 8(a)(5) proceeding issues which were
or could have been raised in a related representation
proceeding.' 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
At all material times herein , Combustion
Engineering , Inc., Saginaw Division , has maintained
its only office and place of business at 601 North
Washington in the city of Saginaw, and State of
Michigan , and is engaged in the manufacture, sale,
and distribution of utility and industrial equipment,
and related products. During the past year,
Respondent, in the course and conduct of its
business operations, purchased and caused to be
delivered to its Saginaw plant , steel and other goods
and materials valued in excess of $6,500,000, of
which goods and materials valued in excess of $6
million were transported and delivered to its plant in
Saginaw, Michigan, directly from points located
outside the State of Michigan . During the same
period, Respondent had sales and performed services
valued in excess of $11 million of which sales and
services valued in excess of $10 million were made
to and performed in locations outside the State of
Michigan.
'Pittsburgh Plate Glass Company v . N.L.R.B., 313 U.S. 146.
303
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.
II. THE LABOR ORGANIZATION INVOLVED
Bricklayers, Masons and Plasterers' Union-Local
No. 7, Saginaw, Michigan, Bricklayers, Masons and
Plasterers' International Union 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
At all times material herein, the following
employees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All bricklayers employed by the Employer at its
601 N. Washington, Saginaw, Michigan, location,
excluding all other employees, office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
Between January 23 and February 5, 1969, a
majority of the employees of the Respondent in said
unit, in a mail-ballot election conducted under the
supervision of the Regional Director for Region 7,
designated the Union as their representative for the
purpose of collective bargaining with the
Respondent . On February 11, 1969, the Regional
Director for Region 7 certified the Union as the
collective-bargaining representative of the employees
in said unit, and the Union continues to be such
representative.
B. The Request To Bargain and the
Respondent's Refusal
Commencing on or about February 11, 1969, and
continuing 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 February
11, 1969, 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
February 11, 1969, and now is the exclusive
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 February 11, 1969, refused to
bargain collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate 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.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondent set forth in section
III, above, occurring in connection with its
operations as 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
commerce.
V. THE REMEDY
Having found that the Respondent has engaged 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 elected
bargaining agent for the period provided by law, we
shall construe the initial year of certification as
beginning on the date the Respondent commences 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; 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).
Conclusions of Law
1. Combustion Engineering , Inc., Saginaw
Division , is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Bricklayers, Masons and Plasterers'
Union-Local No . 7, Saginaw, Michigan,
Bricklayers, Masons and Plasterers' International
Union of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All bricklayers employed by the Employer at
its 601 North Washington , Saginaw , Michigan,
location, but excluding all other employees, office
clerical employees, professional employees, guards
and supervisors within the meaning of the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since February 11, 1969, 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
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about February 11, 1969, 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)
of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, its
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and has thereby
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
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 Respondent,
Combustion Engineering, Inc., Saginaw Division,
Saginaw , Michigan, 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 Bricklayers, Masons
and Plasterers' Union-Local No. 7, Saginaw,
Michigan, Bricklayers, Masons and Plasterers'
International Union of America, AFL-CIO, as the
exclusive bargaining representative of its employees
in the unit found appropriate above.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed 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 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. The appropriate unit is:
COMBUSTION ENGINEERING, INC.
All bricklayers employed by the Employer at its
601 N. Washington, Saginaw, Michigan, location,
but excluding all other employees, office clerical
employees, professional employees, guards and
supervisors within the meaning of the Act.
(b) Post at its Saginaw, Michigan, place of
business, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 7,
after being duly signed by the Respondent's
representative, shall be posted by the 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 the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify said Regional Director for Region 7, in
writing, within 10 days from the date of this
Decision, what steps the Respondent has taken to
comply herewith.
'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 Decreee of the United States Court of Appeals
Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of The National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act as amended,
305
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Bricklayers, Masons and Plasterers' Union-Local No.
7, Saginaw , Michigan , Bricklayers, Masons and
Plasterers' International Union of America, 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 representative of
all our 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 agreement . The bargaining unit is:
All bricklayers employed by the Employer at its 601
N. Washington, Saginaw, Michigan, location, but
excluding all other employees, office clerical
employees , professional employees, guards and
supervisors within the meaning of the Act.
Dated By
COMBUSTION ENGINEERING,
INC. SAGINAW DIVISION
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit , Michigan
48226, Telephone 313-226-3200.