Hoerner-Waldorf Corp.

HOERNER-WALDORF CORPORATION Hoerner-Waldorf Corporation and Little Rock Print- ing Specialties and Paper Products Union Local 630, Sub. of the International Printing and Graphic Communications Union. Case 26-CA-5135 November 7, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on May 31, 1974, by Little Rock Printing Specialties and Paper Products Union Local 630, Sub. of the International Printing and Graphic Communications Union, herein called the Union, and duly served on Hoerner-Waldorf Corpo- ration, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a com- plaint on June 6, 1974, 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 no- tice 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 18, 1974, following a Board election in Case 26-RC-4681 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 31, 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 June 14, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 28, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and to strike Respondent's answer. On July 5, 1974, the Respondent filed a "Response to General Counsel's Motion for Summary Judgment and to Strike Respondent's Answer." Subsequently, on July 9, 1974, the Board issued an order transfer- Official notice is taken of the record in the representation proceeding, Case 26-RC-4681, 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 , 1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F.2d 91 (C A 7, 1968), Sec 9(d) of the NLRA 771 ring 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, entitled "Reply to General Counsel's Motion for Summary Judgment." 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: Ruling on the Motion for Summary Judgment In its answer to the complaint and in its response and reply to the General Counsel's Motion for Sum- mary Judgment and to strike Respondent's answer, Respondent attacks the appropriate unit and, conse- quently, the validity of the Union's majority status and certification. The General Counsel contends that the Respondent is attempting to relitigate matters raised and determined in the underlying representa- tion proceeding. We find merit in the General Counsel's position. Our review of the record in Case 26-RC-4681 in- dicates that the Regional Director, after hearing, is- sued a Decision and Direction of Election on Febru- ary 6, 1974, directing an election on an appropriate unit of office clerical employees in which, contrary to Respondent's contentions, he included design and shipping department employees and made other unit composition determinations. Respondent filed a timely request for review of the Regional Director's Decision and Direction of Election in which it raised the issues of unit inclusion and exclusion. In a tele- graphic communication of March 1, 1974, the Board denied the request for review as raising no substan- tial issues warranting review. In the election conducted on March 8, 1974, 12 votes were cast for, and 6 against, the Union, and 1 ballot was challenged. Respondent did not file objec- tions either to the election or to conduct affecting the result of the election. On March 18, 1974, the Re- gional Director certified the Union. In Respondent's response and reply to General Counsel's Motion for Summary Judgment, it is alleged that all questions of the proper unit, raised in the answer to the com- plaint, are still at issue although previously consid- ered by the Board. In addition to the unit composi- tion issue, Respondent also contends that the Re- gional Director's position on the rights of an individual not a party to the proceeding is not of record and should be entered in the record. It ap- pears from the record in the representation pro- 214 NLRB No. 103 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceeding that this contention was advanced in Respondent's request for review of the Regional Director's Decision and Direction of Election and that it was considered by the Board and rejected by the Board's denial of the request for review. 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 is a corporation doing business in the State of Arkansas with an office and place of busi- ness in Little Rock, Arkansas, where it is engaged in the manufacture and distribution of corrugated box- es. During the past 12 months, Respondent pur- chased and received at its Little Rock, Arkansas, lo- cation products valued in excess of $50,000 directly from points located outside the State of Arkansas. During the same period of time, Respondent sold and shipped goods valued in excess of $50,000 from its Little Rock, Arkansas, location directly to points located outside the State of Arkansas. We find, on the basis of the foregoing, that Re- 2 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) 3 The Respondent denies the allegation of the complaint that since April 1, 1974, the Union has continued to request bargaining, and seeks a hearing thereon. In his Motion for Summary Judgment , the General Counsel alleges that the Union had orally made such request and that the parties agreed to a negotiating meeting on May 31, 1974, at which time the Respondent sub- mitted to the Union a letter expressing doubt as to the legality of the appro- priate unit determination and declining to negotiate with the Union The letter is attached to the motion. The Respondent does not deny the validity of the letter and, in fact, admits that it declined to bargain on May 31, 1974 In these circumstances , we find that a proper request to bargain had been made and that the Respondent had, on May 31, 1974, refused to honor that request Accordingly, we strike the Respondent's denial of the request to bargain as sham and deny the request for a hearing thereon 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. II. THE LABOR ORGANIZATION INVOLVED Little Rock Printing Specialties and Paper Prod- ucts Union Local 630, Sub. of the International Printing and Graphic Communications Union, 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 office clerical employees including billing department, production scheduling department, order department, time keeping department, shipping department and design department em- ployees and switchboard operator employed by Respondent at its Little Rock, Arkansas, loca- tion, excluding all other employees including professional employees, managerial employees, salesmen, sales trainee, confidential secretary and supervisors as defined in the Act. 2. The certification On March 8, 1974, 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 26 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 March 18, 1974, 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 April 1, 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 HOERNER-WALDORF CORPORATION on or about May 31, 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 collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since May 31, 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. Hoerner-Waldorf Corporation is an employer engaged in commerce within the meaning of Section 773 2(6) and (7) of the Act. 2. Little Rock Printing Specialties and Paper Products Union Local 630, Sub. of the International Printing and Graphic Communications Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. All office clerical employees including billing department, production scheduling department, or- der department, time keeping department , shipping department and design department employees and switchboard operator employed by Respondent at its Little Rock, Arkansas, location, excluding all other employees including professional employees, mana- gerial employees, salesmen, sales trainee, confidential secretary and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since March 18, 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 May 31, 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)(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 Re- lations Board hereby orders that Respondent, Hoer- ner-Waldorf Corporation, Little Rock, Arkansas, 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 Little Rock Printing Spe- cialties and Paper Products Union Local 630, Sub. of the International Printing and Graphic Communica- 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Union, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All office clerical employees including billing department, production scheduling department, order department, time keeping department, shipping department and design department em- ployees and switchboard operator employed by Respondent at its Little Rock, Arkansas, loca- tion, excluding all other employees including professional employees, managerial employees, salesmen, sales trainee, confidential secretary 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. (b) Post at its office and plant in Little Rock, Ar- kansas, copies of the attached notice marked "Ap- pendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 26, 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 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 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Little Rock Printing Specialties and Paper Products Union Local 630, Sub. of the International Printing and Graphic Communications Union, 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 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 office clerical employees including bill- ing department, production scheduling de- partment, order department, time keeping de- partment, shipping department and design department employees and switchboard oper- ator employed by Respondent at its Little Rock, Arkansas, location, excluding all other employees including professional employees, managerial employees, salesmen, sales trainee, confidential secretary and supervisors as de- fined in the Act. HOERNER-WALDORF COR- PORATION ' 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 "