Tennessee Plastics, Inc.

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tennessee Plastics, Inc. and Sheet Metal Workers' International Association Local Union No. 464. Case 10-CA-9854 March 19, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on November 8, 1972, by Sheet Metal Workers' International Association Local Union No. 464, herein called the Union, and duly served on Tennessee Plastics, 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 November 22, 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 October 5, 1972, following a Board election in Case 10-RC-9176 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; 1 and that, commencing on or about October 25, 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. On November 27, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 8, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 15, 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. Respon- dent 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 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, the Respondent denies the validity of the election in Case 10-RC-9176 and of the Union's certification based upon the election results. The General Counsel contends that the Respondent is raising the same issues that it litigated or could have litigated in the underlying representation proceeding. Upon the record before us, including the record in Case 10-RC-9176, we agree with the General Counsel and therefore find no merit in the Respondent's position. The record in Case 10-RC-9176 shows that, on May 26, 1972, pursuant to a Stipulation for Certifica- tion Upon Consent Election, an election by secret ballot was conducted under the direction and supervision of the Regional Director in which a majority of the employees in the stipulated unit selected and designated the Union as their represent- ative for the purpose of collective bargaining with the Respondent. Thereafter, the Respondent filed timely objections to conduct affecting the results of the election. The objections alleged, in substance, that (1) union observers talked with eligible voters in the polling area during the election; (2) union represent- atives, agents, and/or employees (a) threatened economic reprisals against eligible voters if they did not vote for the Union, and (b) threatened them with physical violence to their persons and property; and (3) by these and other acts deprived employees of an opportunity to cast free and untrammeled ballots in the election. The Regional Director investigated the objections and on July 12, 1972, issued his Report on Objections in which he found the objections to be without merit and recommended that the Board overrule them in their entirety and certify the Union. Subsequently, the Respondent filed timely excep- tions to the Regional Director's report and a supporting brief in which it argued that its objections should not have been overruled and that the election should have been set aside. In the alternative, it requested that a hearing be ordered on the material and substantial issues raised by the objections. On October 5, 1972, the Board overruled the objections and certified the Union as exclusive representative of the employees in the stipulated unit. It is well settled that in the absence of newly discovered or previously unavailable evidence or 1 Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, Intertype Co v. Penello, 269 F Case 10-RC-9176, as the term "record" is defined in Secs 102 68 and Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See (C A 7, 1968), Sec 9(d) of the NLRA LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), 202 NLRB No. 61 TENNESSEE PLASTICS, INC. 463 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 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.3 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 The Respondent, a Tennessee corporation, main- tains an office and place of business located at Johnson City, Tennessee, where it is engaged in the manufacture and sale of heating and air-conditioning equipment. During the past calendar year, a repre- sentative period, the Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Tennessee. 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' International Association Local Union 464 is a labor organization within the meaning of Section 2(5) of the Act. III, UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent 2 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 3 In its response to the Notice To Show Cause, the Respondent contends that the General Counsel's Motion for Summary Judgment should not be granted because, by his request that the Board take official notice of certain representation case documents attached to his motion , the General Counsel is attempting to present evidence outside the pleadings thereby depriving the Respondent of an opportunity to present evidence. We find no merit in this contention . It is customary Board practice to take official notice of the 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 tool and die employees, quality control employees, shipping and receiving employees employed by Respondent at plants 1, 2 and 3 located in Johnson City, Tennessee, but excluding all office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. 2. The certification On May 26, 1972, 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 bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on October 5, 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 October 16, 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 October 25, 1972, and continu- ing 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 October 25, 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. entire representation case record in 8(a)(5) complaint cases where the Respondent's pleadings raise representation issues. (See In. 1, supra.) If, upon review of the record, it appears that the representation issues had not been previously litigated or raised, and they are otherwise properly litigable at this stage of the proceeding, the Respondent would be afforded the opportunity to litigate the issues and to present evidence at an evidentiary hearing. Since the Respondent herein has previously litigated the represen- tation issues , it is not entitled to a hearing to relitigate them herein and, therefore, has not been deprived of an opportunity to present evidence. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 commences 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. Tennessee Plastics, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers' International Associa- tion Local Union No. 464 is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees including tool and die employees, quality control employees, shipping and receiving employees em- ployed by Respondent at plants 1, 2 and 3 located in Johnson City, Tennessee, but excluding all 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 October 5, 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 October 25, 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, Tennessee Plastics, Inc., its officers, agents, succes- sors, 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 Work- ers' International Association Local Union No. 464 as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees including tool and die employees, quality control employees, shipping and receiving employees employed by Respondent at plants 1, 2 and 3 located in Johnson City, Tennessee, but excluding all office clerical employees, professional employ- ees, 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. TENNESSEE PLASTICS, INC. 465 (b) Post at its place o business in Johnson City, Tennessee, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representa- tive, 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 Respondent 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. 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 United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 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 employ- ees including tool and die employees, quality control employees, shipping and receiving employees employed by Respondent at plants 1, 2 and 3 located in Johnson City, Tennessee, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. TENNESSEE PLASTICS, INC. (Employer) 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' International Association Local Union No. 464 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 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, Peachtree Building, Room 701, 730 Peachtree Street N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.