Dowling Bag Co., Inc.

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dowling Bag Company, Inc. and United Paperworkers International Union, AFL-CIO. Case 10-CA- 10912 January 22, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on September 9, 1974, by United Paperworkers International Union, AFL- CIO, herein called the Union, and duly served on Dowling Bag Company, 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 September 13, 1974,-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 Adminis- trative 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 July 8, 1974, following a Board election in Case 10-RC-9887 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; t and that, commenc- ing on or about August 29, 1974, 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 September 20, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 7, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, asserting that by its answer to the complaint the Respondent was attempting to relitigate issues previously raised and litigated in the representation proceeding. Subsequently, on October 11, 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. Re- spondent thereafter filed a Reply to Notice To Show Cause, and a Cross-Motion for Summary Judgment. 1 Official notice is taken of the record in the representation proceeding, Can 10-RC-9887, as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations. Serves 8, as amended. See LTV Electrosystenis, Inc., 166 NLRB 938 (1%7), enfd. 388 F.2d 683 (C.A. 4, 216 NLRB No. 37 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 and reply to the Notice To Show Cause, Respondent argues that, because of the Union's misrepresentations prior to the election, a free and uncoerced majority of the employees did not vote for the Union in the underlying representation proceeding, and thus it has no obligation to bargain with the Union. Respondent also asserts, in the alternative to its Cross-Motion for Summary Judgment, that due process requires a hearing on the issues raised. In view of the General Counsel's argument that Respondent is attempting to relitigate issues raised and resolved in the representation proceeding, we have reviewed the record thereof. It reveals that, following the Union's victory in the election conduct- ed pursuant to a Stipulation for Certification Upon Consent Election, Respondent filed timely objections to conduct affecting the results of the election. Respondent alleged, in substance, that the Union had misrepresented wage rates it had obtained for employees in other companies, and had threatened employees with physical and economic harm if they did not vote for the Union. Following investigation, the Regional Director issued a report on objections, finding the misrepresentations by the Union insuffi- cient to warrant setting aside the election, and, in the absence of any supporting evidence, dismissed Respondent's second objection. Respondent filed exceptions to this report, reasserting its argument before the Board concerning the Union's misrepre- sentations and their effect on the election results. On July 8, 1974, the Board issued a Decision and Certification of Representative in which it adopted the Regional Director's findings and recommenda- tions, and, noting that Respondent's exceptions raised no material or substantial issues of fact or law warranting reversal of the Regional Director, certif- ied the Union. It thus appears that Respondent raised and litigated the issue of the Union's misrepresentations in the representation proceeding, and such matters were previously considered by the Board. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circum- 1968); Golden Age Beverage Co., 167 NLRB 151 (1%7), 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. DOWLING BAG COMPANY, INC. 253 stances 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. We find no merit in Respondent's contention that due process requires a hearing on the issue it raises herein. The issue of the Union's misrepresentations Respondent seeks to use as a defense to the Motion for Summary Judgment was raised in the representa- tion proceeding and was considered and rejected on the merits by the Regional Director. Upon Respond- ent's exceptions before the Board, we found that there was no material 'or substantial factual or legal issue raised thereby. Absent a prima facie showing of a material or substantial factual or legal issue which would warrant setting aside the election , a hearing is not required to satisfy contentions as to due process.3 No such showing has been made here. Accordingly, we shall grant the General Counsel's Motion for Summary Judgment; 4 in view of this ruling, Respondent's Cross-Motion for Summary Judgment is denied. On the basis of the entire record , the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Georgia corporation engaged in the manufacture of textile and multiwall bags with an office and place of business located at Valdosta, Georgia. During the past calendar year, which period is representative of all times material herein, Re- spondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. 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 2 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). s Danville Industries, Inc., 210 NLRB 307 (1974). 4 Member Penello agrees that the General Counsel's Motion for Summary Judgment should be granted since all issues raised by the Respondent in this proceeding were or could have been litigated in the prior 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 United Paperworkers International Union, AFL- CIO, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its plant located in Valdosta, Georgia, including plant clerical em- ployees, over-the-road and local truck drivers, but excluding all office clerical employees, profession- al employees, guards and supervisors as defined in the Act. 2. The certification On March 14, 1974, 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 July 8, 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 August 20, 1974, 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 August 29, 1974, 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- representation proceeding. In any event, if he had participated in the prior representation proceeding, he would have found that the misrepresentations alleged in the Employer's objections did not warrant setting the election aside for the reasons set forth in his dissenting opinion in Medical Ancillary Services, Inc., 212 NLRB 582 (1974). 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since August 29, 1974, 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, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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, 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 commer- ce. 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- 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); Burnett 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. Dowling Bag Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Paperworkers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its plant located in Valdosta, Georgia , including plant clerical employ- ees, over-the-road and local truck drivers, 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 July 8, 1974, 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 August 29, 1974, 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, Respond- ent 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, Dowling Bag Company, Inc., Valdosta, Georgia, 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 United Paperworkers International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by the Employer at its plant located in Valdosta, Georgia, including plant clerical em- ployees, over-the-road and local truck drivers, but excluding all office clerical employees, profession- al employees, guards and supervisors as defined in the Act. DOWLING BAG COMPANY, INC. (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 Valdosta, Georgia, facilities, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 10, 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 thereaft- er, in conspicuous places, including all places where notices 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 10, 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 to 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 255 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 United Paperworkers International Union, AFL-CIO, 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 production and maintenance employ- ees employed by the Employer at its plant located in Valdosta, Georgia, including plant clerical employees, over-the-road and local truck drivers, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. DOWLING BAG COMPANY, INC. (Employer)