Connecticut Foundry Co.

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 758 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Connecticut Foundry Company and International
Ladies' Garment Workers' Union, AFL-CIO.
Case 39-CA-167
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUIFSDALE
Upon a charge filed on March 21, 1980, by Inter-
national Ladies' Garment Workers' Union, AFL-
CIO, herein called the Union, and duly served on
Connecticut Foundry Company, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Officer-in-Charge
for Subregion 39, issued a complaint on May 13,
1980, 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 and the 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 February 29,
1980, following a Board election in Case -RC-
15464, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate; and
that, commencing on or about March 6, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On May 23, 1980, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 14, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 24, 1980, 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 Judg-
ment should not be granted. Respondent thereafter
filed a response to 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 the Motion for Summary Judgment
In its answer to the complaint and reply to the
Motion for Summary Judgment, Respondent as-
serts that the handling of the challenged ballots
was improper, and that a proper resolution of the
challenged ballots would reveal that the Union
failed to receive a majority of the valid votes cast.
Respondent als;o contends assuming, arguendo, that
the Union did receive a majority of the valid bal-
lots cast, the election results should be set aside.
Moreover, Respondent contends that from the
election date (June 16, 1978) to the certification
date (February 29, 1980) its work force has
changed substantially and, in light of the changes, a
bargaining order would be inappropriate under
N.L.R.B. v. Hale Manufacturing Company, 602
F.2d 244 (2d Cir. 1979). Respondent admits that it
has received the Union's letter requesting it to bar-
gain, but Respondent denies that any bargaining
obligation exists.
The General Counsel contends that Respondent's
answer raises no issues other than those fully con-
sidered by the Board in the underlying representa-
tion proceeding, that Respondent is seeking to reli-
tigate such issues, and that Respondent makes no
claim that its defenses are based on previously un-
available evidence.
Our review of the record herein, including the
record in Case -RC-15464, 1 discloses that the
Union filed a petition for an election on November
15, 1977. On January 6, 1978, the Acting Regional
Director for Region I issued a notice of representa-
tion hearing. After a hearing on April 19, 1978, the
Regional Director for Region I issued a Decision
and Direction of Election in Case -RC-15464, di-
recting an election in a unit of production and
maintenance employees at Respondent's Rocky
Hill, Connecticut, facility. On May 31, 1978, Re-
spondent filed with the Board a request for review.
On June 7, 1978, the Board granted Respondent's
request to withdraw its request for review.
An election was conducted June 16, 1978, in
which 43 votes were cast for the Union, and 75
against the Union, with 94 challenged ballots, a suf-
ficient number to affect the results of the election.
Both Respondent and the Union timely filed objec-
tions to the election. On September 26, 1978, the
Regional Director for Region I issued a Supple-
mental Decision and revised tally of ballots in
which he found, inter alia, () that the challenges
to the ballots of six voters were sustained; (2) that
I he petition as iled in the Rgilonal ()Officen i oston, Mlassachu-
sctts Respondent's facility is located in Rcky iiil, Connecticut Subse-
quent t the filing of the pelitiot, Ihe larlford, Connlecticut, Subregional
Office opened, and tile case was transferred to that office
254 NLRB No. 89
758
CONNECTICUT FOUNDRY COMPANY
the challenges to 78 ballots were overruled, and
that the ballots be opened and counted; (3) that
four ballots be declared void; (4) that certain of the
Union's objections raised identical issues to those
presented in Case 1-RC-15464 and thus should be
consolidated for hearing before an administrative
law judge if a further revised tally showed that the
Union had not received a majority; (5) that Re-
spondent's Objections 1-7, and 10 and 11 be overr-
ruled; and, (6) that Respondent's Objections 8 and
9 raised issues requiring a hearing and ordered that
these objections be consolidated for hearing before
an administrative law judge if a further revised
tally of ballots showed either (a) that the Union
had received a majority of the valid votes counted
plus the challenges, or (b) that the six undeter-
mined challenged ballots were determinative of the
outcome of the election.
On October 11, 1978, Respondent filed a request
for review of the Regional Director's Supplemental
Decision and revised tally of ballots, and on Octo-
ber 12, 1978, the Union filed a request for review
of the Supplemental Decision and revised tally of
ballots. On October 17, 1978, the Regional Direc-
tor for Region 1 issued an amendment to the Sup-
plemental Decision and revised tally of ballots, re-
voking his earlier determination to overrule the
challenge to the ballot of Francisco Echevarria
since it required credibility resolutions and could
best be resolved on the basis of record testimony.
Subsequently, on October 20, 1978, the Union filed
an opposition to the Employer's request for review
and Respondent filed a response thereto. Respon-
dent, on October 24, 1978, filed a submission of
newly discovered evidence in support of the earlier
filed request for review and motion for reconsider-
ation. In response to both requests for review, the
Board on February 16, 1979, by telegram, remand-
ed the case to the Regional Director for Region I
for hearing on the issue of employee Elizabeth
Cornwall's eligibility, if it became determinative,
and the Employer's Objection 4 alleging material
misrepresentation of the Board's processes in a
newspaper article. On February 16, 1979, the Em-
ployer filed a request for reconsideration of the
Board's telegram and on March 15, the Board
denied the Employer's request.
In accordance with the Regional Director's Sup-
plemental Decision and revised tally of ballots, the
amendment to the Supplemental Decision and re-
vised tally of ballots, and the Board's partial grant
of the Employer's request for review of the Re-
gional Director's Supplemental Decision and re-
vised tally, certain challenged ballots were opened
and counted and another revised tally of ballots
issued on March 22, 1979; an amended revised tally
of ballots issued March 26, 1979, and a second
amended revised tally of ballots issued March 28,
1979. The results of the election as reflected in the
second amended revised tally were 100 votes for
the Union, 95 votes against the Union, with 8 un-
determined challenged ballots, a sufficient number
to affect the results of the election.
On June 23, 1978, the Union filed a charge
against Respondent in Case 1-CA-14654, alleging
that Respondent violated Section 8(a)(l) of the
Act, by inter alia, granting wage increases to em-
ployees during the Union's organizational cam-
paign. The charge was amended on July 28, 1978.
On May 3, 1979, the Regional Director for Region
I issued an Order consolidating cases, amended
complaint and notice of hearing, consolidating
Cases 1-CA-14654 and -RC-15464, for a hearing
before an administrative law judge. On October 19,
1979, the Administrative Law Judge issued his De-
cision in which he found, inter alia, that the chal-
lenges to the ballots of Elizabeth Cornwall, Jeffrey
Cox, Dennis Chapman, Thomas Padilla, Geronimo
Padilla, and Francisco Spatase be sustained; the
challenges to the ballots of Francisco Echevarria
and Michael Wilkes be overruled; and all of Re-
spondent's objections be overruled. Respondent
filed exceptions to the Administrative Law Judge's
Decision and the Union filed exceptions to certain
aspects of the Administrative Law Judge's Deci-
sion, to which Respondent filed a motion in re-
sponse to and answer to the Petitioner's [Union's]
exceptions to the Administrative Law Judge's De-
cision. On February 29, 1980, the Board issued a
Decision, Order, and Certification of Representa-
tive, 2 adopting the Administrative Law Judge's
Decision. On March 6, 1980, the Union requested
that Respondent recognize it as the exclusive bar-
gaining representative of the employees in the unit,
and to bargain with it. Respondent, since March 6,
1980, has refused to bargain collectively with the
Union.
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) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding."
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 unavailable evidence, nor does
it allege that any special circumstances exist herein
247 NI.R No 145
Se Pimburgh Plat'e G/as Co. v N.L R B., 313 US. 146, 162 (1941),
Rules and Reguliahons of the Hoard, Secs 102 67(0 and 102 69(c)
759
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 is, and has been at all times material
herein, a Connecticut corporation with a place of
business in Rocky Hill, Connecticut, where it is en-
gaged in the manufacture and sale of gray iron
castings. In the course and conduct of its business,
Respondent annually sells and ships from the
Rocky Hill, Connecticut, facility products, goods,
and materials valued in excess of $50,000 directly
to points and places outside the State of Connecti-
cut, and purchases and receives at its Rocky Hill,
Connecticut, facility products, goods, and materials
valued in excess of $50,000 directly from points
outside the State of Connecticut. We find, on the
basis of the foregoing, that Respondent is, and has
been at all times material herein, an employer en-
gaged 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
International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
i. 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 production and maintenance employees at
the Employer's Rocky Hill, Connecticut, fa-
cility, excluding office clerical employees,
guards, and supervisors as defined in the Act.
2. The certification
On June 16, 1978, 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
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on February 29, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 6, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about May 23, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, 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 Respondent has, since
May 23, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 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, 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-
760
CONNECTICUT FOUNDRY COMPANY
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. Connecticut Foundry Company is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Ladies' Garment Workers'
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees at
the Employer's Rocky Hill, Connecticut, facility,
excluding office clerical employees, guards and su-
pervisors as defined in the Act constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since February 29, 1980, 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 March 6, 1980, 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 prac-
tices 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,
employees 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,
Connecticut Foundry Company, Rocky Hill, Con-
necticut, 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 International
Ladies' Garment Workers' Union, AFL-CIO, as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees
employed at the Employer's Rocky Hill, Con-
necticut, facility, excluding office clerical em-
ployees, guards and supervisors as defined in
the Act.
(b) 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.
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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Rocky Hill, Connecticut, facility
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the Of-
ficer-in-Charge for Subregion 39, 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, de-
faced, or covered by any other material.
(c) Notify the Officer-in-Charge for Subregion
39 in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
4 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 Lahor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National abor 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
761
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other terms and conditions of employment
with International Ladies' Garment Workers'
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 represen-
tative 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 agreement. The bargaining unit is:
All production and maintenance employees
employed at the Employer's Rocky Hill,
Connecticut facility, excluding office clerical
employees, guards and supervisors as de-
fined in the Act.
CONNECTICUT FOUNDRY COMPANY
762