Olin Corp.

OLIN CORPORATION Olin Corporation and Textile Workers Union of America, AFL-CIO-CLC. Case 8-CA-8244 October 11, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on March 15, 1974, by Textile Workers Union of America, AFL-CIO-CLC, herein called the Union, and duly served on Olin Corpora- tion, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a com- plaint and amendment to the complaint on April 15 and May 2, 1974, respectively, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(5) and (1) and 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 pro- ceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on February 7, 1974, following a Board election in Case 8-RC-8703 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 March 1, 1974, and at all times there- after, 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 24, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 13, 1974, counsel for the General Counsel filed directly with the Board a motion for summary judgment. Subsequently, on May 22, 1974, 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. Pursuant to the provisions of Section 3(b) of the 1 Official notice is taken of the record in the representation 'proceeding, Case 8-RC-8703, as the term "record" is defined in Secs . 102.68 and 102 .69(g) of the Board's Rules and Regulations. Series 8, as amended . See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), 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 (1967), enfd . 397 F.2d 91 (C.A. 7, 1968): Sec. 9(d) of the NLRA. 63 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: Ruling on the Motion for Summary Judgment In its answer to the complaint and in its response to the notice to show cause, Respondent contends that the Union's certification is invalid because the first election in the underlying representation case was improperly set aside and the second election was invalid because two determinative challenges were improperly resolved by the Board. We do not accept these contentions. Our review of the record herein, including the rec- ord in Case 8-RC-8703, reveals that an election conducted on September 22; 1972, pursuant to a stip- ulation for certification upon consent election result- ed in a vote of 28 for, and 28 against, the Union, with no challenged ballots. The Union filed timely objec- tions to the election. After investigation, the Acting Regional Director issued a report on objections recommending that an objection relating to Respondent's misrepresentations concerning acci- dent and sickness benefits be sustained and the re- mainder overruled, that the election be set aside, and that a new election be directed. Respondent filed ex- ceptions to the Acting Regional Director's report on objections and a supporting brief. Thereafter, on February 13, 1973, the Board issued a Decision, Or- der, and Direction of Second Election in which it found that the Respondent's exceptions raised no material or substantial issues of fact or law warrant- ing reversal of the Acting Regional Director. Accord- ingly, it adopted the Acting Regional Director's find- ings, conclusions, and recommendation that the elec- tion be set aside and a second election directed. The tally of ballots, issued after the rerun election was conducted on March 23, 1973, indicated that 26 ballots were cast for, and 26 against, the Union, with 2 challenged ballots. After investigation, the Acting Regional Director issued his report on challenged ballots in which he recommended that a hearing be held to resolve the issues raised by the challenged ballots. Respondent filed exceptions to the Acting Regional Director's report and requested that the challenges be sustained. The Board subsequently on June 13, 1973, issued an Order Directing Hearing, finding that the exceptions raised no material or sub- stantial issues warranting reversal of the Acting Re- gional Director. After the hearing, the Hearing Offi- cer issued his report on challenged ballots in which he recommended that the challenge to one ballot be 214 NLRB No. 14 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sustained and the challenge to the other ballot be overruled. Both Respondent and the Union filed ex- ceptions to the Hearing Officer's report. On January 22, 1974, the Board issued a Supplemental Decision and Direction to Open and Count Challenged Ballots in which it overruled the challenges to both chal- lenged ballots and directed that the Regional Direc- tor open and count them and issue the appropriate certificate. After the ballots were opened and count- ed, a revised tally of ballots was issued showing that a majority of the employees in the stipulated unit had selected the Union as their exclusive bargaining agent. On February 7, 1974, the Regional Director certified the Union. In its response to the notice to show cause, Respondent reiterates the representation case contentions that the first election was improper- ly set aside and that the challenges to the two chal- lenged ballots cast in the second election should have been sustained. It thus appears that Respondent is attempting to relitigate matters previously considered and determined by the Board. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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 annually ships products valued in excess of $50,000 from its Oakwood plant directly to points outside the State of Ohio. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. If. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America , AFL-CIO- CLC, 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, including regular part-time employees of the Employer employed at its Oakwood, Ohio, facil- ity, but excluding all office clerical employees and professional employees, guards and supervi- sors as defined in the Act. 2. The certification On March 23, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Acting Re- gional Director for Region 8, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was cer- tifiedas the collective-bargaining representative of the employees in said unit on February 7, 1974, and the Union continues to be such exclusive representa- tive within the meaning of Section 9(a) of the Act. Respondent, a Delaware corporation with its prin- cipal office and place of business in Stamford, Con- necticut, operates a facility at Oakwood, Ohio, where it engages in the manufacture of tents and related camping equipment. The Oakwood facility of the Re- spondent is the only one involved in this proceeding. 2 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). B. The Request To Bargain and Respondent's Refusal Commencing on or about February 20, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 1, 1974, and continuing at all OLIN CORPORATION times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 1, 1974, and at all times 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 prac- tices 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, inti- mate, 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 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 ap- propriate 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 se- lected 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 (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); Bur- nett Construction 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 1. Olin Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 65 2. Textile Workers Union of America, AFL-CIO- CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cluding regular part-time employees of the Employer employed at its Oakwood, Ohio, facility, but exclud- ing all office clerical employees and professional em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 7, 1974, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 1, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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)(I) 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 Re- lations Board hereby orders that Respondent, Olin Corporation , Oakwood, Ohio, 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 con- ditions of employment with Textile Workers Union of America, AFL-CIO-CLC, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All production and maintenance employees, including regular part-time employees of the Employer employed at its Oakwood, Ohio, facil- ity, but excluding all office clerical employees 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and professional employees, guards and supervi- APPENDIX 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 facility in Oakwood, Ohio, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Di- rector for Region 8, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices 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 8', in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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." 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 Tex- tile Workers Union of America, AFL-CIO- CLC, as the exclusive representative of the em- ployees 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of em- ployment, 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 regular part-time employees of the Employer employed at its Oakwood, Ohio, facility, but excluding all office clerical employees and professional employees, guards and supervisors as defined in the Act. OLIN CORPORATION