Benner Glass Co.

BENNER GLASS CO. 511 Benner Glass Co. and Allied Services Division, Broth- erhood of Railway , Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO. Case 12-CA-6313 July 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO 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. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Upon a charge filed on March 21, 1974, by Allied Services Division, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, herein called the Union, and duly served on Benner Glass Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 12, issued a complaint on April 4, 1974, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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 com- plaint alleges in substance that on March 7, 1974, following a Board election in Case 12-RC-4298 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about March 19, 1974, and at all times thereaf- ter, 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 April 12, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 22, 1974, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Previously, on April 17, 1974, the Charging Party had filed a Motion for Summary Judgment? Subsequently, on May 6, 1974, the Board i Official notice is taken of the record in the representation proceeding. Case 12-RC-4298, 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 AgeBeverage 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 view of our determination herein, it is unnecessary to rule on the Union's Motion for Summary Judgment Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, the Respondent admits the factual allegations of the complaint, but denies the validity of the certification of the Union in the under- lying representation case on the grounds that the Board erred in its rulings on its objections to the elec- tion, and by not granting it an evidentiary hearing on one of its objections. Review of the record herein, including the record in Case 12-RC-4298, indicates an election was conduct- ed pursuant to a Stipulation for Certification Upon Consent Election on April 6, 1973, which resulted in a 26-to-21 vote in favor of the Union, with 2 chal- lenged ballots. Respondent filed timely objections to conduct affecting the results of the election, alleging in substance that the Union had engaged in threaten- ing and coercive conduct which destroyed the labora- tory conditions for the election, and had coercively offered to waive initiation fees. After an administrative investigation, the Regional Director issued his Report and Recommendations on Objections on July 20, 1973, in which he found no concrete evidence of the coercive and threatening conduct by the Union, and upheld the propriety of the Union's waiver of initiation fees. Respondent filed timely exceptions to this report, asserting that factual questions had been raised which required a hearing. The Board, on October 23, 1973, issued a Decision and Order directing a Hearing in which it adopted the Regional Director's recommendation regarding the propriety of the waiver of initiation fees, and ordered a hearing on the alleged threats and coercive conduct by the Union. Pursuant to this Order, a hearing was held on November 8 and 12, 1973, at which all parties were present and were given the opportunity to pre- sent evidence. The Hearing Officer, in his report of December 21, 1973, found that the objection was in- sufficient to raise material or substantial issues affect- ing the results of the election, and recommended that it be overruled. In the interim, Respondent filed a motion for re- 212 NLRB No. 69 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consideration of the Board's Decision and Order in light of the decision of the U.S. Supreme Court in N.L.R.B. v. Savair Manufacturing Co, 414 U.S. 270 (1973). Following the issuance of the Hearing Officer's report, the Board, on March 7, 1974, issued a Supplemental Decision and Certification of Repre- sentative, adopting the Hearing Officer's findings, conclusions, and recommendations, denying the Respondent's motion for reconsideration as not rais- ing substantial or material issues under Board prece- dent even as modified by Savair,3 and certifying the Union. It thus appears that Respondent is again attempting to raise in this proceeding issues litigated at length in the underlying representation case, resolved adversely to Respondent by the Board after a hearing. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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." All issues raised by the Respondent in this proceed- ing 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 Florida corporation. with its princi- pal office and place of business in Jacksonville, Flori- da, where it is engaged in the operation of a glass products factory. Respondent annually - receives goods and materials valued in excess of $50,000 di- rectly from suppliers located outside the State of Flor- ida. Respondent annually sells and ships products valued in excess of $50,000 directly to customers lo- cated outside the State of Florida. We find, on the basis of the foregoing, that Respon- 3 See Con-Pac, Inc, 210 NLRB 466 (1974), Irwindale Division, Lau Indus- tries, a Division of Phillips Industries, Inc, 210 NLRB 182 (1974) 4 See Pittsburgh Plate Glass Co v N L. R B, 313 U S 146, 162 (1941); Rules and Regulations of the Board, Sees. 102 67(f) and 102 69(c) dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. 11 THE LABOR ORGANIZATION INVOLVED Allied Services Division , Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Ex- press and Station Employees , AFL-CIO, 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 consti- tute a unit appropriate for collective-bargaining pur- poses-within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Respondent at its factory locat- ed at 5329 Powers Avenue, Jacksonville, Florida; excluding all clerical employees, guards, profes- sional employees, and supervisors as defined in the Act. 2. The certification On April 6, 1973, a majority of the employees-of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 12, 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 March 7, 1974, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request,To Bargain and Respondents Refusal Commencing onior about March, 14, '1974, and at all times thereafter, the Union has requested the Re- spondent,to bargain collectively with it as the exclu- sive collective-bargaining representative of all the ' employees in the above-described unit. Commencing on or about March 19, 1974, 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 collec- BENNER GLASS CO. 513 tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 19, 1974, and at all tunes thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964); cert. denied 379 U.S. 817 (1964); Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 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 organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Respondent at its factory located at 5329 Powers Avenue, Jacksonville, 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 March 7, 1974,, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 March 19, 1974, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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,, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 mean- ing 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 Rela- tions Board hereby orders that Respondent, Benner Glass Co., Jacksonville, Florida, 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 condi- tions of employment, with Allied Services Division, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Em- ployees, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appropriate unit: 1. Benner Glass Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Allied Services Division, Brotherhood of Rail- way, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, is a labor All production and maintenance employees employed by the Respondent at its factory locat- ed at 5329 Powers Avenue, Jacksonville, Florida, excluding all clerical employees, guards, profes- sional employees, and supervisors as defined in the Act. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 factory at 5329 Powers Avenue, Jack- sonville, Florida, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 12 after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive 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, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 12, 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 " Services Division, Brotherhood of Railway, Air- line and Steamship Clerks, Freight Handlers, Ex- press and Station Employees, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 representative 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 agreement. The bargaining unit is: All production and maintenance employees employed by the Employer at its factory locat- ed at 5329 Powers Avenue, Jacksonville, Flori- da; excluding all clerical employees, guards, professional employees, and supervisors as de- fined in the Act. Dated By 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Allied BENNER GLASS CO (Employer) (Representative) (Title) This i's 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, Room 706, Federal Office Building, 500 Zack Street, P.O. Box 3322, Tampa, Florida 336 02, Telephone 813-228-2641.