Keystone Group

National Labor Relations Board - Board Decisions

Jul 3, 1980

250 N.L.R.B. 382 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keystone Group, Crawfordsville Plant, Keystone
Consolidated Industries, Inc. and United Steel-
workers of America, AFL-CIO-CLC. Case 25-
CA- 11743
July 3, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on January 17, 1980, by
United Steelworkers of America, AFL-CIO-CLC,
herein called the Union, and duly served on Key-
stone Group, Crawfordsville Plant, Keystone Con-
solidated Industries, Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
25, issued a complaint and notice of hearing on
January 29, 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 complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 9,
1979, following a Board election in Case 25-RC-
6987 pursuant to the Regional Director's Decision
and Direction of Election, the Union was duly cer-
tified as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit
found appropriate;' and that, commencing on or
about October 12, 1979, and more particularly on
January 11, 1980, and at all times thereafter, Re-
spondent has refused, and continues 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 February 5, 1980, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On April 18, 1980, counsel for the General
Counsel filed directly with the Board a motion to
strike portions of Respondent's answer and a
Motion for Summary Judgment, with appendixes
attached. Subsequently, on April 24, 1980, the
I Official notice is taken of the record in the representation proceed-
ing, Case 25-RC-6987, as the term "record" is defined in Sees 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Elecrrosytems. I,,c., 166 NLRB 938 (1967). enfd. 388 F.2d 683
(4th Cir. 1968). Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969): Iniertype Co. v. Pencllo, 269 F Supp 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91
(7th Cir. 1$68), Sec 9(d) of the NLRA, as amended.
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 that same
day filed its response to the General Counsel's
motion to strike portions of Respondent's answer
and Motion for Summary Judgment and a request
for reconsideration, and shortly thereafter request-
ed that said response be considered its response to
the 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, response to the
General Counsel's motion to strike and Motion for
Summary Judgment and request for reconsider-
ation, and response to the Notice To Show Cause,
Respondent in substance agrees that the Union is
the certified bargaining representative and that it
has refused the Union's demand for bargaining,2
but attacks the validity of the Union's certification
on the grounds that the Regional Director improp-
erly overruled its objections to the election in the
underlying representation proceeding and failed to
direct a hearing on substantial and material issues
of fact raised by its objections, and asserts that the
Board erred in denying Respondent's requests for
review of the Regional Director's Supplemental,
Second Supplemental, and Third Supplemental De-
cisions. The General Counsel, on the other hand,
argues that all material issues have been previously
decided in the underlying representation proceed-
ing and that there are no litigable issues of fact
warranting a hearing. We agree.
Review of the record herein, including that in
the representation proceeding, Case 25-RC-6987,
establishes that pursuant to a Decision and Direc-
tion of Election dated September 29, 1978, an elec-
tion by secret ballot was conducted among certain
of Respondent's employees on November 2 and 3,
1978, which the Union won by a vote of 158 to
145, with no void ballots, and 3 challenged ballots,
2 The complaint alleges, inter alia. that Respondent's refusal to bargain
is established by a letter dated January 11. 1980, from Respondent's cor-
porate attorney to the Union (the validity of which is not contested by
Respondent) stating that Respondent declined to bargain with the Union
based on its position that the Board improperly certified the Union. that
Respondent also had a good-faith doubt that the Union represented a ma-
jority of its employees. and that, absent a new election. Respondent re-
fused the Union's request to bargain Inasmuch as the General Counsel
has presented no evidence showing that the Union made an earlier
demand or that Respondent earlier refused such a demand, we find that
the refusal commenced on Janluary 11 198()
250 NLRB No. 55
382
KEYSTONE GROUP
which were insufficient to affect the results of the
election. On October 23, 1978, the Board denied
Respondent's request for review of the Regional
Director's Decision and Direction of Election. Fol-
lowing the election, Respondent filed timely objec-
tions thereto. The Regional Director conducted an
investigation, and, on December 14, 1978, issued
and duly served on the parties his Supplemental
Decision, Order, Order Directing Hearing, and
Notice of Hearing, overruling one objection and
directing a hearing to resolve issues of fact and
credibility raised by the other objection. On De-
cember 18, 1978. Respondent filed amended objec-
tions and requested that the investigation be re-
opened. The Regional Director conducted an in-
vestigation and issued a Second Supplemental De-
cision and Order on January 24, 1979. Respondent
thereafter filed with the Board requests for review
of the Regional Director's Supplemental and
Second Supplemental Decisions, which were
denied by the Board on March 15, 1979. Following
a hearing, a Hearing Officer's report on objections
issued on May 31, 1979. Respondent filed excep-
tions to the Hearing Officer's report, and, on Octo-
ber 9, 1979, the Regional Director issued a Third
Supplemental Decision and Order, including a cer-
tification of representative. Respondent's request
for review of the Third Supplemental Decision was
denied by the Board on December 6, 1979.
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.3
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
which would require the Board to reexamine the
decision made in the representation proceeding.4
: See Pittshurgh PlMI (;l\ Cfo v ,XI.. R.B. 113 US. 146. 162 (1941)
Rules and Regulations if the Board. Ses 102 710( and 102 69(c)
' Respondent in its response to the consolidated motion filed b5 coun-
s.l for the General Counsel contends that the Regional Director and the
Acting Regional Director erred in finding its obijetcions il the underlying
representation cawse .%ithoui merit. that the Hoards, denial orf he Employ-
er"s requests for revieo, was erroneou, , aid that "compelling reasons"
exl t for the Board to deny the (General Counisel ' Moiioni for Summary
Judgmenl and recontsider Its decimlsns "not to) revsiew the Supplemetlial
Decision. Second Supplemenital Deci.iion. anld Ihird Supplemental Dcci-
silii of the Regional I)lrector I" los,.ser. Ihe h old asseriion of error up-
ported b) the idelltcal argumenllt a lready iilsidercd b) the Board itl the
underlying representatilon proiceeditg does inot coltiiltle speci;al clrcum-
slances s.arranllllg ; reexanlll atilll of that dectioi n llt this tinie
III it, ainiwer lIi the iomplaint. Replniidcni deties pars i(a, ). , and
(C), u hich allege the appropriate unllit. thait .i nlalrilt if the etiploecs in
the unit deiignal;tcd ;nd sellee Ihe Uinioin its their repre.scIltitie andil
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:
FINI)INGS OF FACT
I. THI! BUSINI:SS OF RtLSPONDI)N I
Respondent, a Delaware corporation, at all times
material has maintained places of business in Craw-
fordsville, Indiana, including the wire plant located
at 510 South Oak Street and the packing systems
division located at 1200 East Wabash Avenue,
herein collectively referred to as the facility, where
it has at all times material been engaged in the
manufacture, sale, and distribution of packing and
bundling machines, wire, and related products.
During the past year, a representative period, the
Respondent in the course and conduct of its busi-
ness operation described above sold and shipped
from its Crawfordsville facility products, goods,
and materials valued in excess of $50,000 directly
to points outside the State of Indiana, and pur-
chased and received at its facility products, goods,
and materials valued in excess of $50,000 directly
from points outside the State of Indiana.
We find, on the basis of the foregoing, that Re-
spondent 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.
that the Regional i)irector certified the Union. and that. at all time, since
the election. the Union ha hbeen the represenlative flr the purpose, if
cifilective hargaining iif the employees in the unit Respondent's anisecr
to) the complaiilt does not explain its denial if the appropriate unit l H
way of explautatiot of its denial of pars 5(h) and (c). Respondenl slates
that "lhe Regional Director's Certificationl of the Union as il,:wlrarS Ito
law" In ist response to the General Counsel's motion to strike thrse por-
ti in, of Respoindent' answer and the General Coiln,sel' Motion for Sum-
mary Judgment and request for recoinsideration. Respondent doex not
refer to its denials of pars 5ta). (hl. and (c) of the complaint Thus. Re.
spondent does not assert that its refusal to bargain is hased on a conlten-
lion that the unit is inappropriate Rather. it states that it is challenging
the certification of the Union on ground, that Recpordecnt's ohjections
,hould hasv been sustalined We flild the unit described in the complaint.
as found appropriate in the i)eci ioin anid Directionl of Ilecton anid thl
Certificationl I1I Representatio.e. to he appropriate flr the purploc, of .)I1-
lectlic hilrg.iinlg: Itlil a nlilltrity (if the employece ll 11i d tiiilt selc'ted
the Unlonll as their collcJtis'c-hargalling repreen iall, is ;ilad that the
tiion ilas
.
hTCel .Iled Is IsIs lihc ex i'lsisi rcpretiCltatoise oi the .niplolct-
in sllid utilit fir the purpo, o,.n ollectt'c bargaininig. is, allegeid in par,
5(a). (h). iand (C) if Ihe comnplilln.t
:'l s icet f our holdings at to the Mitlli I for SuitniIr) Judgmeill .ic d
Respondenl',s denial .if p.ar, 5(at. (h). and (C) of lhe illplaiit (see frt 4.
mpru), Ac findl it UtIece2s.irs to reachI the (icetier;Il ('outl&I' niltiolin t
,Irike porlion, of Re,,pondeil, t .ii',s er
38 3
D[ICISI()NS ()F NA I IONAL LABOR RET.ATIONS BOARDI
II. THI: I ABOR ORGANIZATION INVOLVEI)
United Steelworkers of America, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
11. THI- UNIAIR I .AOR PRACTICI-S
A. The Repreventation Proceeding
1. 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
including truckdrivers and tool repairmen em-
ployed at Respondent's Crawfordsville, Indi-
ana, facility, including the wire plant at 510
South Oak Street and the packaging systems
division at 1200 East Wabash Avenue, exclud-
ing field servicemen, office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
2. The certification
On November 2 and 3, 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 25, designated
the Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on October
9, 1979, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 7, 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. Corm-
mencing on or about January 11, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
January 11, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
IV. ITHI. lFF:lCI OF THI UNIFAIR IABOR
PRACTICIFS UPON COMMIRCE-
The activities of Respondent set forth in section
111, above, occurring in connection with its oper-
ations described in section 1, 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. ITHF 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-
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. Keystone Group, Crawfordsville Plant, Key-
stone Consolidated Industries, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 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 production and maintenance employees in-
cluding truckdrivers and tool repairmen employed
at Respondent's Crawfordsville, Indiana, facility,
including the wire plant at 510 South Oak Street
and the packaging systems division at 1200 East
Wabash Avenue, excluding field servicemen, office
clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a
1X4
KEYSTONE GROUP
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since October 9, 1979, 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 January 11, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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, Respond-
ent 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)(l) 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,
Keystone Group, Crawfordsville Plant, Keystone
Consolidated Industries, Inc., Crawfordsville, Indi-
ana, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Steelwork-
ers of America, AFL-CIO-CLC, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
including truckdrivers and tool repairmen em-
ployed at Respondent's Crawfordsville, Indi-
ana, facility, including the wire plant at 510
South Oak Street and the packaging systems
division at 1200 East Wabash Avenue, exclud-
ing field servicemen, 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 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 Crawfordsville, Indiana, facility
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 25, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
6 In the event that this Order is enforced by a Judgment of a Unlited
States Court of Appeals, the ",irds in the noti.e reading "Posted by
Order of the National Lahor Relations Board" shall read "Posted Punsu-
ant to a Judgment of the United States Court of Appeal, Enforcing an
Order of the National L.ahor Relations HBard
APPENDIX
NOTICE To ENMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REL.ATIONS 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 employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE Wit.L, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employ-
ees including truckdrivers and tool repair-
men employed at our facility, including the
wire plant at 510 South Oak Street and the
packaging systems division at 1200 East
Wabash Avenue, excluding field servicemen,
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
KEYSTONE GROUP, CRAWFORDS-
VILLE PLtANT, KEYSTONE CONSOI.I-
DATED INDUSTRIES, INC.
386