Shawnee Plastics, Inc.

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shawnee Plastics, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 9-CA-6859 November 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on March 3, 1972, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Shawnee Plastics, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on April 5, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 1 were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on December 16, 1971, following a Board election in Case 9-RC-8823, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commencing on or about January 6, 1972, 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 April 14, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 28, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, alleging that Respondent's answer raised no litigable issues. Subsequently, on September 5, 1972, 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 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Official notice is taken of the record in the representation proceeding, Case 9-RC-8823, 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 Notice To Show Cause, with an affidavit attached thereto. 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 to the complaint and in its response to the Notice To Show Cause, Respondent admits all factual allegations of the complaint, including the request, and its refusal, to bargain. Respondent contends, however, that the Union's certification is invalid because it was not afforded a hearing on its objections and because the Regional Director and the Board committed substantial errors of law which require that the election in the underlying representa- tion proceeding be set aside. We do not agree. The record in Case 9-RC-8823 indicates that in an election conducted on January 14, 1971, pursuant to a Stipulation for Certification Upon Consent Elec- tion in the stipulated unit, 122 votes were cast for the Union, 3 were cast for the Intervenor, and 67 were cast for neither organization, with 3 ballots chal- lenged. Respondent filed timely objections to con- duct affecting the results of the election and to the conduct of the election. The objections alleged, in substance, that union agents threatened and interrogated employees on the plant premises while the polls were open; that the unions involved in the election, shortly before the date of the election, threatened employees with loss of jobs and plant closure if the employees did not vote for representation; and that union agents misrepresented employee rights under the Act and the amount of union dues. The objections further alleged that union agents told employees that Respondent had unlawfully acquired names of union card signers and would take disciplinary action against them and that automatic wage increases and improved working conditions would result from union representation. After an investigation, the Regional Director issued his Report on Objections in which he found that Respondent's objections did not raise material and substantial issues affecting the results of the election and recommended that the objections be overruled in their entirety. Thereafter, the Respondent filed timely exceptions LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F .2d 683 (C.A. 4, 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. 200 NLRB No. 37 SHAWNEE PLASTICS, INC. 235 to the Regional Director's report and a supporting brief requesting that the election be set aside or, in the alternative, that a hearing be held on the objections. In its Decision and Certification of Representative issued December 16, 1971, the Board found that Respondent's exceptions raised no sub- stantial issues of fact or law warranting a hearing. Accordingly, it adopted the Regional Director's recommendations, overruled Respondent's objec- tions, and certified the Union as the exclusive bargaining representative of the employees in the stipulated appropriate unit. Thereafter, on December 28, 1971, the Employer filed an exception to the Board's rulings on its objections and requested the Board to reconsider. On January 11, 1972, the Board issued an Order denying the petition for reconsidera- tion. The contentions and arguments of Respondent in this unfair labor practice proceeding are the same as those it advanced in the underlying representation case which the Board has previously considered and denied. 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 .3 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Kentucky corporation with its principal offices and place of business in Kuttawa, Kentucky, where it is engaged in the manufacture and sale of plastic products. During the last 12 months, Respondent manufactured and sold plastic products valued in excess of $50,000 which were sold and shipped from its plant at Kuttawa, Kentucky, directly to points located outside the State of Kentucky. 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 International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica (UAW), 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, including inspectors, at the Respondent's Kutta- wa, Kentucky, operation, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On January 14, 1971, 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 9, 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 December 16, 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 January 3, 1972, 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 employees in the above-described unit. Com- mencing on or about January 6, 1972, and continu- ing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and 3 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). 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since January 6, 1972, 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), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, 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. Shawnee Plastics, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Ae- rospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including inspectors, at the Respondent's Kuttawa, Kentucky, operation, but 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 December 16, 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 January 6, 1972, 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, 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, Shawnee Plastics, 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 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including inspectors, at the Respondent's Kutta- wa, Kentucky, operation, but excluding 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 exercise of the rights guaranteed them in Section 7 of the Act. SHAWNEE PLASTICS, INC. 237 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 Kuttawa, Kentucky, operation copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 9, 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 thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Labor Relations Board" shall read "Posted Pursuant to a Judgment of the Umted States Court of Appeals Enforcing an Order of the National Labor Relations Board." national Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), 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, 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 employees, including inspectors, at the Respondent's Kuttawa, Kentucky, operation, but exclud- ing office clerical employees, professional employees, guards and supervisors as de- fined in the Act. SHAWNEE PLASTICS, INC. (Employer) Dated By (Representative) (Title) 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 Inter- 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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.