Con-Pac, Inc.

CON-PAC, INC 667 Con-Pac, Inc. and General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 270, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Ind. Case 15-CA-4871 November 30, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on June 4, 1973, by General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 270, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., herein called the Union, and duly served on Con-Pac, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on July 10, 1973, 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 were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 17, 1973, following a Board election in Case 15-RC-5052, 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 May 30, 1973, and at all times thereafter, Respondent 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 July 20, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, submitting an affirma- tive defense, and requesting that the complaint be dismissed in its entirety. On July 25, 1973, counsel for the General Counsel filed directly with the Board a Motion To Transfer and Continue Case Before the Board and Motion for 1 Official notice is taken of the record in the representation proceeding, Case 15-RC-5052, 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, enfd. 415 F.2d 26 (C.A. 5, 1969); 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 2 In this Decision the Board inadvertently stated that an election was conducted on February 2, 1972, instead of February 2, 1973. 3 194 NLRB 298, enforcement denied 470 F.2d 305 (CA. 6, 1972), cert. granted 411 U.S. 964 (May 7, 1973). With due deference to the view Summary Judgment, with appendixes attached, requesting that the Board take official notice of the record in the underlying representation proceeding, Case 15-RC-5052, and submitting, in effect, that the Respondent, in its answer, is attempting to relitigate issues which were or could have been raised in the underlying representation proceeding, and it raises no issue requiring a hearing. On August 6, 1973, the Respondent filed an opposition to the General Counsel's motions and, on August 8, 1973, a Motion To Stay. On August 9, 1973, the General Counsel filed an opposition to the Respondent's Motion To Stay and brief in support thereof. Subsequently, on August 15, 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 response to Notice To Show Cause with appendixes attached. 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 The thrust of the Respondent's response to the Notice To Show Cause, its opposition to the General Counsel's Motion To Transfer and Continue Case Before the Board and Motion for Summary Judg- ment, and its Motion to Stay, attacks the Board's Decision and Certification of Representative, issued on May 17, 1973.2 Thus, the Respondent "challenges not only the certification itself," but contends, "as previously urged" in the representation proceeding, that a hearing in this matter would establish that the Respondent's employees were offered financial inducements by the Union which substantially affected the results of the election, and moves that further proceedings in this matter be stayed, pending decision by the United States Supreme Court in Savair Manufacturing Company,3 which should dis- pose of all of the issues involved herein. As an affirmative defense in its answer to the complaint, the Respondent contends that the Board's Certification of the Union is illegal and that if it were expressed by the U.S Court of Appeals for the Sixth Circuit which acknowledges that it is in conflict with the decisions of the Eighth and Ninth Circuits, N.LR B. v. DIT-MCO, Inc., 428 F.2d 775, and N.L.R.B. v. G K Turner Associates, 457 F.2d 484, respectively, until the matter has been passed upon by the Supreme Court, we adhere to our position that it was proper for the Board to determine that an offer to waive initiation fees prior to an election, whether or not conditioned upon the outcome of the election, is permissible. Similarly, the Board extended the logic used in DIT-MCO, Incorporated, 163 NLRB 1019, to cover the delay or reduction of dues payments. See Efco Corporation, 185 NLRB 220; Hughes & Hatcher, Inc., 176 NLRB 1103. Accordingly, the Respondent's Motion To Stay is denied. 207 NLRB No. 105 668 DECISIONS OF NATIONAL to recognize and bargain with the Union it would be subjecting itself to a possible violation of the National Labor Relations Act. The record of the prior representation proceeding, which is before us, shows that the Board in its Decision and Certifica- tion of Representative issued on May 17, 1973, had considered the entire record in this case with respect to the issues under review, including the issue of the Union's waiver of initiation fees and delay of dues payments which the Respondent raised in its objections to conduct affecting the results of the election and in its exceptions to the Regional Director's Report on Objections, and adopted the Regional Director's findings, conclusions, and rec- ommendations. The Board noted that the Respon- dent's exceptions raised no material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings, conclusions, and recommendations or require a hearing. Accordingly, the Board denied the Employer's request for a hearing and certified the Union as the exclusive representative of all the employees in the unit found appropriate herein. Thus, the Respondent, by attack- ing the legal effect or validity of the Board's Decision and Certification of Representative issued on May 17, 1973, is attempting to relitigate the same issues which it raised and litigated in the prior representa- tion proceeding, Case 15-RC-5052. 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Louisiana corporation maintain- 4 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). LABOR RELATIONS BOARD ing its principal place of business in New Orleans, Louisiana, where it is engaged in the manufacture of paper products. The only location involved in this proceeding is Respondent's plant located on Con- stance Street in New Orleans, Louisiana. During the past 12 months, which period is representative of all times material herein, Respondent, in the course and conduct of its business, purchased and received goods directly from points outside the State of Louisiana valued in excess of $50,000. During the same 12-month period, Respondent, from its New Orleans, Louisiana, location, sold and shipped goods valued in excess of $50,000 directly to points located outside the State of Louisiana. 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 General Truck Drivers, Chauffeurs, Warehouse- men and Helpers, Local No. 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Ind., 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees; excluding all other employees, including office clerical employees, temporary employees, professional employees, salesmen, watchmen and/or guards, and supervi- sors as defined in the Act. 2. The certification On February 2, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted, pursuant to a Stipulation for Certification Upon Consent Election, under the supervision of the Regional Director for Region 15, designated the Union as their representative for the purpose of CON-PAC, INC. collective bargaining with -the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on May 17, 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 May 23, 1973, 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 May 30, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since May 30, 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 the Respondent set forth in section 111, 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- 669 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. Con-Pac, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truck Drivers, Chauffeurs, Ware- housemen and Helpers, Local No. 270, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees; excluding all other employees, including office clerical employees, tem- porary employees, professional employees, salesmen, watchmen and/or 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 May 17, 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 May 30, 1973, 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 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Con-Pac, 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 General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., as the exclusive bargaining repre- sentative of its employees in the following appropri- ate unit: All full-time and regular part-time production and maintenance employees; excluding all other employees, including office clerical employees, temporary employees, professional employees, salesmen, watchmen and/or guards, and supervi- sors 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 Constance Street, New Orleans, Louisiana, place of business copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 15, 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 conspicu- ous 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 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 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 Gener- al Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 270, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., 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 full-time and regular part-time prod- uction and maintenance employees; exclud- ing all other employees, including office clerical employees, temporary employees, professional employees, salesmen, watchmen and/or guards, and supervisors as defined in the Act. CON-PAC, INC. (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, Plaza Tower, Suite 2700, 1001 Howard Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.