Dalton Sheet Metal Co., Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1971

193 N.L.R.B. 70 (N.L.R.B. 1971)

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dalton Sheet Metal Company, Inc. and Sheet Metal
Workers Local #85 . Case I0-CA-9001
September 8, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on May 21, 1971, by Sheet
Metal Workers Local #85, herein called the Union,
and duly served on Dalton Sheet Metal Company,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 10, issued a
complaint on June 9, 1971, 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 (I) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint,
and notice of hearing before a Trial Examiner were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about
March 25, 1971, following a Board election in Case
10-RC-8428, the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about April27, 1971, 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 June 21, 1971, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On July 6, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 9, 1971, 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.
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 proceeding to a three-
member panel.
Upon the entire record in this proceeding, the Board
makes the following:
I Official notice is taken of the record in the representation proceeding,
Case 10-RC-8428 , as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See
LTV Electrosystemr, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (CA. 4,
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its answer to the complaint, as in its response to
the Notice To Show Cause, Respondent contends that
it is not obligated to bargain with the Union because
the certification issued to the Union in Case
10-RC-8428 was invalid since the Board therein
erroneously overruled the challenges to the ballots of
42 employees and improperly counted their ballots in
determining the Union's majority. Upon our review of
the record in Case 10-RC-8428, we find no merit in
this contention.
Pursuant to the Regional Director's Decision and
Direction of Election an election was conducted on
December 3, 1970. The tally of ballots indicated that
of a total of 90 ballots cast, I was for, and 39 against,
the Union with 50 ballots challenged. No objections
to the election were filed. After an investigation, the
Regional Director issued his Supplemental Decision
and Order To Open and Count Challenged Ballots on
February 23, 1971, in which he overruled the
challenges to 42 ballots, sustained the challenges to 7
ballots, and ordered that the remaining challenge be
resolved by record testimony at a hearing in the event
the revised tally of ballots shows it to be determina-
tive. Respondent, thereafter, filed exceptions to the
Regional Director's Supplemental Decision and
Order and a supporting brief. On March 19, 1971, the
Board, by telegram, denied Respondent's Request for
Review of the Regional Director's Supplemental
Decision and Order as raising no substantial issues
warranting review.
Pursuant to the Regional Director's Supplemental
Decision and Order, the ballots of 42 challenged
voters were opened and counted on March 22, 1971.
The revised tally of ballots shows that 36 were cast for,
and 40 against, the Union and the Board agent's
rulings on the validity of 6 ballots were challenged by
the Respondent on the ground that they were unclear
as to the choice of the voters and thus void.
Thereafter, the Regional Director investigated the six
challenged ballots and on March 25, 1971, issued his
Second Supplemental Decision and Certification of
Representative in which he overruled the challenges
to the ballots on the ground that the allegedly double
markings were due to an excess of graphite which
rubbed off when the ballots were folded and that the
ballots clearly expressed the intent of the voters in
favor of representation. Since such overruling resulted
in a majority for the Union, the Regional Director
certified the Union as exclusive bargaining represent-
1968); Golden Age Beverage Co, 167 NLRB 151 , Intertype Co v Penello,
269 F Supp. 573 (D.C Va., 1967); Follett Corp, 164 NLRB 378, enfd 397
F.2d 91 (C.A. 7, 1968 ); Sec. 9(d) of the NLRA
193 NLRB No. 12
DALTON SHEET METAL CO., INC 71
ative of the employees in the appropriate unit.
Respondent thereafter filed with the Board objections
to the revised tally of ballots and a supporting brief,
contending that the six ballots had markings in both
"Yes" and "No" squares which rendered it impossible
to determine the intent of the voters.
On March 26, 1971, the Regional Director issued an
Addendum to Second Supplemental Decision and
Certification of Representative in which he found the
objections to be without merit and reaffirmed his
Second Supplemental Decision and Certification of
Representative. Respondent thereupon filed with the
Board exceptions to the Addendum and a supporting
brief. The Board, in a telegraphic communication of
April 13, 1971, denied Respondent's Request for
Review with respect to the Regional Director's
Second Supplemental Decision and Certification of
Representative and Addendum thereto as raising no
substantial issues warranting review.
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 proceed-
ing 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. 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 is a Georgia corporation with an office
and place of business in Dalton, Georgia, where it is
engaged in the fabrication and erection of metal
products. During the past calendar year, a representa-
tive period, Respondent sold and shipped products
valued in excess of $50,000 directly to customers
located outside the State of Georgia.
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 Local # 85 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 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 Respondent's Dalton, Georgia , plants , includ-
ing mechanics and helpers , draftsmen , stockroom
clerks and all other plant clerical employees, and
janitors, but excluding office clerical employees,
the sales engineer, professional employees , guards
and supervisors as defined in the Act.
2. The certification
On December 3, 1970, 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 10, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 25, 1971, 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 April 19, 1971, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about April 27, 1971, 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
April 27, 1971, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
2 See Pittsburgh 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 102 69(c)
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees in the appropriate
unit, and that , by such refusal , 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 activities of Respondent set forth in section III,
above , occurring in connection with its operations
described in section 1, 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 com-
merce and the free flow of commerce.
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed 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, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Dalton Sheet Metal Company, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Sheet Metal Workers Local #85 is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees at
the Respondent 's Dalton , Georgia, plants, including
mechanics and helpers , draftsmen , stockroom clerks
and all other plant clerical employees, and janitors,
but excluding office clerical employees, the sales
engineer , professional employees, guards and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since March 25, 1971, 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 April 27, 1971, 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 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 , employees
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,
Dalton Sheet Metal Company, Inc., 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 Workers Local # 85
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees at
the Respondent's Dalton , Georgia, plants , includ-
ing mechanics and helpers , draftsmen , stockroom
clerks and all other plant clerical employees, and
janitors, but excluding office clerical employees,
the sales engineer , 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.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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
DALTON SHEET METAL CO., INC.
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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at Respondent's Dalton, Georgia, plants,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 10, 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,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that the Board's 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 be changed to 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 Local #85 as the exclusive
representative of the employees in the bargaining
unit described below.
73
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
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 under-
standing in a signed agreement . The bargaining
unit is:
All production and maintenance employ-
ees at the Respondent's Dalton, Georgia,
plants, including mechanics and helpers,
draftsmen, stockroom clerks and all other
plant clerical employees, and janitors, but
excluding office clerical employees, the sales
engineer , professional employees , guards and
supervisors as defined in the Act.
Dated By
DALTON SHEET METAL
COMPANY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Peachtree Building, Room 701, 730 Peachtree
Street, NE., Atlanta, Georgia 30308, Telephone
404-526-5760.