Seng Co.

National Labor Relations Board - Board Decisions

Dec 13, 1973

207 N.L.R.B. 875 (N.L.R.B. 1973)

GENERAL STEEL PRODUCTS CO. 875
General Steel Products Co., a Division of the Seng
Company and Upholsterers' International Union of
North America , AFL-CIO. Case 11-CA-5345
December 13, 1973
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on June 5, 1973, by Upholster-
ers' International Union of North America,
AFL-CIO, herein called the Union, and duly served
on General Steel Products Co., a Division of the
Seng Company, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 11,
issued a complaint on July 3, 1973, 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 April 11, 1973,
following a Board election in Case 11-RC-2022 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about April 26 and May 22, 1973, 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 July 16, 1973, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On July 31, 1973, counsel for the General Counsel
filed directly with the Board a Motion to Strike
Affirmative Defenses and for Summary Judgment.
Subsequently, on August 8, 1973, 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 reply 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
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 and defenses to the complaint, and
reply to the Notice To Show Cause, the Respondent
alleges (1) that there are substantial issues of material
fact which cannot be resolved without a hearing and
which have not been properly resolved by the
Regional Director in representation Case
11-RC-2022, and (2) that there are substantial policy
questions and doubt as to the Board's authority to
conduct the election upon which the Board's certifi-
cation was based. The General Counsel, on the other
hand, contends that the Respondent is attempting to
relitigate representation case issues adversely decided
against it and that it may not do so herein. Further,
he argues that the Board had authority to reinstate
the dismissed petition in Case 11-RC-2022 and
thereafter to direct the election thereon leading to the
Union's certification. We agree with the General
Counsel's position.
Our review of the record, in pertinent part, reflects
that pursuant to the Regional Director's Decision
and Direction of Election of October 6, 1964, in Case
11-RC-2022, a secret ballot election in the appropri-
ate production and maintenance unit was conducted
on November 6, 1964. The Union lost the election.
After the investigation of the Union's timely objec-
tions to the election, the Regional Director issued a
Supplemental Decision and Direction and thereafter
ordered a consolidated hearing to be held before i
Trial Examiner.2 Following the issuance of the Trial
Examiner's Decision the Board, on March 11, 1966,
issued its Decision and Order (157 NLRB 636) in
which, inter alia, it directed the Respondent, to
bargain collectively with the Union, dismissed the
petition in Case 11-RC-2022, and vacated all
proceedings therein. The unfair labor practice
aspects of the consolidated hearing were considered
by the United States Court of Appeals for the Fourth
Circuit (398 F.2d 339) and by the U.S. Supreme
Court (395 U.S. 575) which remanded the case for
additional findings by the Board.
Pursuant to the remand, the Board on December
12, 1969, issued its Supplemental Decision and Order
(180 NLRB 56) in which it again ordered the
Respondent to bargain collectively with the Union.
Subsequently, the United States Court of Appeals for
1 Official notice is taken of the record in the representation proceeding, Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164
Case I I-RC-2022, as the term "record" is defined in Secs. 102.68 and NLRB 378, enfd. 397 F,2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See 2 The title of "Trial Examiner" was changed to "Administrative Law
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Judge" effective August 19, 1972.
Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (CA. 5, 1969);
207 NLRB No. 112
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Fourth Circuit declined to enforce the Board's
bargaining order and remanded the case for the
taking of additional evidence (445 F.2d 350). On
remand, a hearing was held before an Administrative
Law Judge who issued a Supplemental Decision on
Remand. Thereafter, in its Second Supplemental
Decision, Order, and Direction of Second Election
(199 NLRB 859) of October 19, 1972, the Board,
inter alia, affirmed the Administrative Law Judge's
finding that a bargaining order was unnecessary,
ordered that the petition in Case 11-RC-2022 be
reinstated, and remanded the case to the Regional
Direction to conduct a new election.
On January 26, 1973, a majority of the employees
in the appropriate unit voted for the Union. The
Respondent filed timely objections to conduct
affecting the results of the election which alleged, in
substance, that (1) a union supporter carried a pistol
into the plant; (2) an employee's friend threatened a
supervisor; (3) a union organizer talked to employees
waiting in line to vote; (4) intoxicated employees
were allowed to vote and interfere with others; (5)
the Union distributed. a letter to employees making
misrepresentations concerning the pay and benefits
received by employees of a competing company
organized by the Upholsterers' Union; and (6) the
Board had no power, sua sponte, to reinstate, on
October 19, 1972, the petition in the underlying
representation proceeding which it had previously
dismissed on March 11, 1966, and therefore the
second election based on the reinstated petition was
a nullity.
After investigation, the Regional Director on April
11, 1973, issued his Third Supplemental Decision and
Certification of Representative in which he overruled
the Respondent's objections in their entirety and
certified the Union. The Respondent timely filed a
request for review in which it reiterated its objections
and requested a hearing to resolve conflicts of facts
raised by its objections. On May 9, 1973, the Board
denied the request as raising no substantial issues
warranting review.
In support of its request for an evidentiary hearing
on its objections, the Respondent has attached to its
reply to the Notice To Show Cause eight affidavits.
Six of the affidavits had previously been submitted to
the Regional Director in the underlying representa-
tion proceeding, the seventh contained additional
evidence previously given orally to the Regional
Director by an affiant who also had filed an earlier
affidavit with the Regional Director, and the eighth
contained additional facts, pertaining primarily to
Objection 1, not discovered by the Respondent until
after the Regional Director's Third Supplemental
Decision. Since the evidence in the first seven
affidavits had been previously considered by the
Regional Director in his ruling on the Respondent's
objections, it does not constitute newly discovered or
previously unavailable evidence warranting relitiga-
tion of the representation case issues decided against
the Respondent. As to the eighth affidavit, there is no
showing that, with due diligence, the evidence
contained therein could have been discovered in
timely fashion and therefore it does not constitute
newly discovered or previously unavailable evidence.
Further, assuming arguendo the evidence is newly
discovered, it appears at best to be primarily
cumulative evidence with respect to the Respon-
dent's Objection 1 and would not warrant reversing
the Regional Director's determinations on the
objections-determinations which we now reaffirm.
Further, in its request for review of the Regional
Director's Third Supplemental Decision, we note
that the Respondent sought a hearing. By our denial
of review because no substantial issues warranting
review had been raised, we have necessarily deter-
mined by implication that no hearing is warranted or
required.3
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.4
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
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.5
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Delaware corporation, owns and
operates a plant located at High Point, North
Carolina, where it is engaged in the manufacture of
metal components for furniture. During the past
3 See Baker Canning Company, 206 NLRB No. 97, and cases cited in Rules and Regulations of the Board , Secs. 102.67(1) and 102.69(c).
fn. 2. 5 In view of our determination herein , we find it unnecessary to rule
4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 ( 1941); upon the General Counsel's motion to strike affirmative defenses.
GENERAL STEEL
calendar year, a representative period, Respondent
purchased and caused to be shipped directly to its
High Point, North Carolina, plant goods and raw
materials valued in excess of $50,000. During this
same period Respondent manufactured, sold, and
shipped goods valued in excess of $50,000 directly to
points outside the State of North Carolina.
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
Upholsterers' International Union of North Ameri-
ca, 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
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 production and maintenance employees at
the Employer's High Point, North Carolina,
plant, excluding office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
2. The certification
On January 26, 1973, 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 I1 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 April 11, 1973, 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 22 and May 22,
1973, and at all times thereafter, the Union has
requested the Respondent to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-described
unit. Commencing on or about April 26 and May 23,
PRODUCTS CO. 877
1973, 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 26, 1973, 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.
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 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 certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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,
1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419 , 1421, enfd.
--1350 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. General Steel Products Co., a Division of the
Seng Company, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Upholsterers' International Union of North
America, 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 High Point, North Carolina, plant,
excluding office clerical employees, 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.
4. Since April 11, 1973, 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 26 and May 23,
1973, and at all times thereafter, to bargain collec-
tively 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, 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.
sional employees, 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) Post at its High Point, North Carolina, plant
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the
Regional Director for Region 11, 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 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
General Steel Products Co., a Division of the Seng
Company, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours,
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Upholsterers' Inter-
national Union of North America, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees at
the Employer's High Point, North Carolina,
plant, excluding office clerical employees, profes-
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 Uphol-
sterers ' International Union of North 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 representa-
tive of all employees in the bargaining unit
described below , with respect to rates of pay,
GENERAL STEEL PRODUCTS CO. 879
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 production and maintenance employ-
ees at the Employer's High Point, North
Carolina, plant, excluding office clerical
employees, professional employees, guards
and supervisors as defined in the Act.
GENERAL STEEL
PRODUCTS CO., A
DIVISION OF THE SENG
COMPANY
(Employer)
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-9211, Ext. 360.