Crane Co.

National Labor Relations Board - Board Decisions

Jun 2, 1975

218 N.L.R.B. 130 (N.L.R.B. 1975)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Deming Division , Crane Co. and United Steelworkers
of America , AFL-CIO-CLC. Case 8-CA-8692
June 2, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on October 23, 1974, by
United Steelworkers of America, AFL-CIO-CLC,
herein called the Union, and duly served on Deming
Division, Crane Co., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 8, issued
a complaint on November 26, 1974, against Respon-
dent, 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 Adminis-
trative 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 13,
1974, following a Board election in Case 8-RC-9457
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about October 16, 1974, and at all
times thereafter, Respondent has refused, and con-
tinues 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 3 and 4, 1974, respectively,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On December 19, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 27,
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. Respon-
dent 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
1 Official notice is taken of the record in the representation proceeding,
Case 8-RC-9457, 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
218 NLRB No. 1
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, as amended, and in
its response to the Notice To Show Cause, Respon-
dent admits the factual averments of the complaint
but denies the representative status of the Union and
the validity of its certification. Respondent also
admits that the Union requested, and that it declined
to furnish, information relevant to wages, hours, and
various benefits presently enjoyed -by employees in
the stipulated unit on the ground that the Union was
not the duly certified representative of its employees
because of the - Board's ruling on its election
objections. We do not agree.
Review of the record herein, including that in Case
8-RC-9457, discloses that an election conducted
pursuant to a Stipulation for Certification Upon
Consent Election on May 16, 1974, resulted in a vote
of 46 to 45 in favor of the Union with no void or
challenged ballots. On May 23, 1974, Respondent
filed objections to the election. After an investiga-
tion, the Regional Director concluded in his Report
on Objections that Respondent's objections were not
properly filed and served pursuant to Section 102.69
of the Board's Rules and Regulations. Accordingly,
he recommended that the objections be overruled in
their entirety and the Union certified. Respondent
filed timely exceptions to the Regional Director's
Report on Objections. On September 13, 1974, the
Board, upon consideration of the entire record
including the Regional Director's report and the
Respondent's exceptions, issued a Decision and
Certification of Representative in which it adopted
the findings, conclusions, and recommendations of
the Regional Director and certified the Union.
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.2
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
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp . 573 (D.C Va., 1967);
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA
2 See Pittsburgh Plate Glass Co v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
DEMING DIVISION, CRANE CO.
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.
On this motion, Respondent contends, in sub-
stance, that it should not be subjected to summary
judgment because the Regional Director's investiga-
tion of the representation issues focused on proce-
dural considerations and his recommendation to the
Board was based upon procedural rather than
substantive grounds.3 In support of this contention,
Respondent points out that the cases cited by the
General Counsel in support of his Motion for
Summary Judgment referred to "full litigation," "full
investigation," or consideration and rejection of all
substantive issues. From the foregoing circumstance,
Respondent apparently infers that the longstanding
proscription of relitigation, in the subsequent unfair
labor practice proceeding, of matters determined in
the representation proceeding is limited to substan-
tive issues and does not embrace procedural determi-
nations. We do not accept this distinction. It would
be nugatory and inconsistent with the purpose of the
proscription to sustain dismissals of objections and
to grant summary judgments on the merits, while
reserving to respondents a right to litigate the
substantive aspects of dismissals based on procedural
grounds .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
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation, operates
enterprises located in various States of the United
States, including an unincorporated division at
Salem, Ohio, known as the Deming Division, Crane
Co., its only facility involved herein, where it is
engaged in the manufacture of pumping equipment.
Respondent annually ships manufactured products
valued in excess of $50,000 from its plant in Salem,
Ohio, directly to points located outside the State of
Ohio.
We fmd, 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.
3 Respondent does not contend that its objections to the election in the
representation proceeding were timely served on the Union and there is
nothing in the record that would establish a valid and compelling reason
H. THE LABOR ORGANIZATION INVOLVED
131
United Steelworkers of America, AFL-CIO-CLC,
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
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 office clerical employees and technical
employees, including draftsmen, tool designers,
process engineers, power industries product spe-
cialist, curve technician, senior draftsmen, exclud-
ing all production and maintenance employees,
salesmen, industrial engineers, all exempt employ-
ees, professional employees, confidential employ-
ees, guards and supervisors as defined in the Act.
2. The certification
On May 16, 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 8 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 13, 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 September 16, 1974, and
again on October 4 and 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 em-
ployees in the above-described unit and to furnish it
the following information, set forth in the Union's
September 16, 1974, letter, relevant and necessary to
its performance as collective-bargaining representa-
tive of employees in the said unit:
A list of job descriptions and classifications;
salaries being paid to each employee in the unit;
insurance furnished by the Company or contrib-
why compliance with the service requirement of Sec. 102.69 of the Rules
could not have been effected.
4 See Jason/Empire, Inc., 212 NLRB 137 (1974).
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
utor; number of holidays; amount of vacations at
the various years of service; pension coverage for
these employees including type and latest fund
report; other fringe benefits accruing to these
employees such as sick days; pay practices other
than salary such as bonus, etc.; last hire date of
employees; seniority rights as to promotion,
demotion, layoff, and recall; and personal time
off with pay such as bereavement or funeral leave,
jury service, etc.
Commencing on or about October 16, 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 or to furnish the informa-
tion requested by the Union in its letter of September
16, 1974.
Accordingly, we find that the Respondent has,
since October 16, 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.
We further -find that Respondent has, since
October 16, 1974, and at all times thereafter, refused
to- bargain with the Union by withholding the
aforementioned information requested by the Union
and continues to refuse to bargain with the Union in
violation 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 REMED1
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.
Having found that Respondent refused to bargain
with the Union in violation of Section 8(a)(5) and (1)
of the Act by refusing, upon request, to furnish
current information relevant and necessary to the
Union's performance as collective-bargaining repre-
sentative of the employees in the bargaining unit
described above, Respondent will be required to
furnish such information upon request:
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. Deming Division, Crane Co., is an employer
engaged in commerce within the meaning of Section
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 office clerical employees and technical
employees, including draftsmen, tool designers,
process engineers, power industries product special-
ist, curve technician, senior draftsmen, excluding all
production and maintenance employees, salesmen,
industrial engineers, all exempt employees, profes-
sional employees, confidential 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 13, 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 October 16, 1974, 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, and to furnish
current information relevant and necessary to the
Union's performance as collective-bargaining repre-
DEMING DIVISION, CRANE CO. 133
sentative of the unit employees, such as a list of job
descriptions and classifications; salaries being paid
to each employee in the unit; insurance furnished by
the Company or contributory; number of holidays;
amount of vacations at the various years of service;
pension coverage for these employees including type
and la test fund report; other fringe benefits accruing
to these employees such as sick days; pay practices
other than salary such as bonus, etc.; last hire date of
employees; seniority rights as to promotion, demo-
tion, layoff, and recall; and personal time off with
pay such as bereavement or funeral leave, jury
service, etc., 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,
Deming Division, Crane Co., Salem, Ohio, 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, AFL-CIO-CLC, as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All office clerical employees and technical
employees, including draftsmen, tool designers,
process engineers, power industries product spe-
cialist, curve technician, senior draftsmen, exclud-
ing all production and maintenance employees,
salesmen, industrial engineers, all exempt employ-
ees, professional employees, confidential employ-
ees, 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 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Upon request, furnish to the Union the
following current information relevant and necessary
to the Union's performance as collective-bargaining
representative of the unit employees such as a list of
job descriptions and classifications; salaries being
paid to each employee in the unit; insurance
furnished by the Company or contributory; number
of holidays; amount of vacations at the various years
of service; pension coverage for these employees
including type and latest fund report; other fringe
benefits accruing to these employees such as sick
days; pay practices other than salary such as bonus,
etc.; last hire date of employees; seniority rights as to
promotion, demotion, layoff, and recall; personal
time off with pay such as bereavement or funeral
leave, jury service, etc.
(c) Post at place of business in Salem, Ohio, copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 8, 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 there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 8, 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 United
Steelworkers of America, AFL-CIO-CLC, 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
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 office clerical employees and technical
employees, including draftsmen, tool design-
ers, process engineers, power industries
product specialist, curve technician, senior
draftsmen, excluding all production and
maintenance employees, salesmen, industrial
engineers, all exempt employees, profession-
al employees, confidential employees, guards
and supervisors as defined in the Act.
WE WILL furnish to the above-named Union
the following current information, relevant and
necessary to the Union's performance as collec-
tive-bargaining representative of the unit employ-
ees: a list of job descriptions and classifications;
salaries being paid to each employee in the unit;
insurance furnished by the company or contribu-
tory; number of holidays; amount of vacations at
the various years of service; pension coverage for
these employees including type and latest fund
report; other fringe benefits accruing to these
employees such as sick days; pay practices other
than salary such as bonds, etc.; last hire date of
employees; seniority rights as to promotion,
demotion, layoff, and recall; personal time off
with pay such as bereavement or funeral leave,
jury service, etc.
DEMING DIVISION,
CRANE CO.