Cherokee Nitrogen Co.

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cherokee Nitrogen Company and Oil, Chemical & Atomic Workers International Union, AFL-CIO Case 16-CA-4848 November 30, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on July 10, 1972, by Oil, Chemical & Atomic Workers International Union, AFL-CIO, herein called the Union, and duly served on Cherokee Nitrogen Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 16, issued a complaint on August 29, 1972, 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, complaint, and notice of hearing before an Administrative 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 February 9, 1972, following a Board election in Case 16-RC-5802 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate, i and that, commencing on or about June 13, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so Subsequently, the Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and setting forth an affirmative defense On September 15, 1972, counsel for the General Counsel filed directly with the Board a motion for summary judgment in which he submits, in effect, that the Respondent's answer to the complaint raises no issue not already disposed of in the representation proceeding, case 16-RC-5802, and prays the Board to grant the motion for summary judgment Subse- quently, on October 2, 1972, the Board issued an i Official notice is taken of the record in the representation proceeding Case 16-RC-5802 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 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 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 entitled "Employer's Brief in Opposition to General Counsel's Motion for Summa- ry Judgment," with affidavits and wage schedule 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 response to the notice to show cause opposing the General Counsel's motion for summary judgment, with attachments,2 the Respondent raises the same matters that it raised in the underlying representation case and the affirmative defense contained in its answer to the complaint Thus, the Respondent denies the appropriateness of the unit and, consequently, the validity of the certification of the Union as the exclusive bargaining representative of the employees in the appropriate unit, and it admits that the thrust of its contention is "directed to the Regional Director's finding that the assistant chemist should not be included in the unit" Upon the record before us, including the record in Case 16-RC-5802, we find no merit in the Respon- dent's position The election in the representation case was conducted pursuant to a Decision and Direction of Election, and upon conclusion of the election the parties were served with a tally of ballots which reflected that, of approximately 47 eligible voters, 23 votes were cast for and 22 were cast against the Union, and the ballots of the chief chemist and assistant chemist were challenged by the Board agent on grounds that their names did not appear on the voting list 3 Inasmuch as the challenges were sufficient in number to affect the results of the election, the Regional Director conducted an investigation and on February 9, 1972, he issued and caused to be served on the parties a Supplemental Decision and Certifi- cation of Representative, in which he determined that the chief chemist is a technical employee and that the duties, interests, and skills of the assistant 2 The attachments submitted are the same as those previously considered by the Board in the representation proceeding 3 The Respondent and Union both sought to exclude these employees however it was determined that there was not sufficient evidence adduced at the hearing upon which to make a unit placement Therefore both employees were voted by challenged ballot 200 NLRB No 89 CHEROKEE NITROGEN CO chemist are related to those of the chief chemist whom he serves as an assistant, and dissimilar from those possessed by the production and maintenance employees Accordingly, the Regional Director sustained both challenged ballots and certified the Union as the exclusive collective-bargaining repre- sentative of the employees in the appropriate unit On February 22, 1972, the Respondent filed with the Board a request for review of the Regional Director's Supplemental Decision and Certification of Representative, asserting that the assistant chemist should be included in the unit On March 14, 1972, by telegraphic order, the Board denied the Respon- dent's request for review as it raised no substantial issues warranting review Subsequently, on March 20, 1972, the Respondent submitted a request for rehearing or oral argument, and on March 28, 1972, by telegraphic order, the Board denied the Respon- dent's request as it contained nothing not previously considered On April 21, 1972, the Respondent submitted to the Board a supplemental request for rehearing and motion to reopen the record, which the Board on April 26, 1972, by telegraphic order, denied as it contained nothing not previously considered Clearly, by its answer to the complaint as well as its response to the notice to show cause opposing the General Counsel's motion for summary judgment, the Respondent is attempting to relitigate the unit issue raised and determined in the previous repre- sentation proceeding 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 proceedings We shall, accord- ingly, grant the motion for summary judgment On the basis of the entire record, the Board makes the following 4 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941) Rules and Regulations of the Board Secs 102 67(f) and 102 69(c) 5 In its answer to the complaint Respondent asserts in effect that it does not have sufficient knowledge of the Union s status as a labor FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT 631 Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Oklahoma, having its principal office and place of business at Pryor, Oklahoma, where it is engaged in the manufacture of fertilizer Respondent, during the past 12 months, which period is representative of all times material herein, has received in excess of $50,000 for the sale of goods and services and has made sales in excess of $50,000 to customers located in States other than Oklahoma 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 Oil, Chemical & Atomic Workers International Union, 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 I 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 of the Employer's plant at Pryor, Oklahoma, includ- ing custodian and plant storeroom clerks, exclu- sive of office clerical employees, buyer, temporary employees, professional employees, guards, and supervisory employees as defined in the Act 2 The certification On November 30, 1971, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 16, 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 organization A determination was made in the underlying representation proceeding Case 16-RC-5802 that the Union is a labor organization and accordingly it is not subject for litigation in the instant unfair labor practice proceeding 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 9, 1972, 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 June 8, 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 June 13, 1972, 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 representa- tive for collective bargaining of all employees in said unit Accordingly, we find that the Respondent has, since June 13, 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 the 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 Cherokee Nitrogen Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Oil, Chemical & Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 All production and maintenance employees of the Employer's plant at Pryor, Oklahoma, including custodian and plant storeroom clerks, exclusive of office clerical employees, buyer, temporary employ- ees, professional employees, guards, and supervisory employees 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 February 9, 1972, 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 June 13, 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, Cherokee Nitrogen Company, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively concerning CHEROKEE NITROGEN CO rates of pay, wages, hours, and other terms and conditions of employment, with Oil, Chemical & Atomic Workers International Union, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit All production and maintenance employees of the Employer's plant at Pryor, Oklahoma, includ- ing custodian and plant storeroom clerks, exclu- sive of office clerical employees, buyer, temporary employees, professional employees, guards, and supervisory employees 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 Pryor, Oklahoma, office, copies of the attached notice marked "Appendix "6 Copies of said notice, on forms provided by the Regional Director for Region 16, 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 16, 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 APPENDIX 633 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 Oil, Chemical & Atomic Workers International Un- ion, 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, 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 of the Employer's plant at Pryor, Oklahoma, including custodian and plant storeroom clerks, exclusive of office clerical employees, buyer, temporary employees, professional employees, guards, and supervisory employ- ees as defined in the Act CHEROKEE NITROGEN 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, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921