Richardson Chemical Co.

RICHARDSON CHEMICAL COMPANY 5 Richardson Chemical Company , Allied Kelite Prod- ucts Division and International Union, Allied Indus- trial Workers of America, AFL-CIO. Case 7-CA-12233 January 8, 1976 DECISION AND ORDER Judgment should not be granted. Respondent did not file 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: BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on August 8, 1975, by Interna- tional Union, Allied Industrial Workers of America, AFL-CIO, herein called the Union, and duly served on Richardson Chemical Company, Allied Kelite Products Division, herein called the Respondent, the Acting General Counsel, herein General Counsel, of the National Labor Relations Board, by the Acting Regional Director for Region 7, issued a complaint on August 29, 1975, 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 May 28, 1975, fol- lowing a Board election in Case 7-RC-12744 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; l and that, commenc- ing on or about July 14, 1975, 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 September 9, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 29, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 15, 1975, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary 'Official notice is taken of the record in the representation proceeding, Case 7-RC-12744, as the term "record" is defined in Secs 10268 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. Ruling on the Motion for Summary Judgment In its answer and affirmative defenses to the com- plaint, Respondent (1) denies the validity of the Union's certification in Case 7-RC-12744 for the reasons set forth in its request for review filed with the Board in the representation proceeding , (2) as- serts in effect that, despite its stated intent to refuse to bargain with the certified Union, the absence of a demand for bargaining precludes an 8(a)(5) finding, and (3) argues that the issuance of the complaint by the Acting Regional Director was ultra vires. In the Motion for Summary Judgment counsel for the Gen- eral Counsel contends (1) that Respondent is seeking to relitigate issues which were litigated in the prior representation proceeding and this it may not do, (2) that a bargaining request would have been futile and therefore is not prerequisite to an 8(a)(5) finding, and (3) that Respondent's ultra vires defense is frivolous. We agree with the General Counsel. Our review of the record, including that in Case 7-RC-12744, reveals that, pursuant to a Decision and Direction of Election issued by the Regional Di- rector, an election was held on January 16, 1975. The tally of ballots showed nine votes cast for the Union and eight against . Respondent filed with the Region- al Director timely objections alleging, in substance, a conversation between a union representative and a unit employee which allegedly contained a threat and misrepresentation and which gave rise to a ru- mor interfering with the ,election. Pursuant to the di- rection of the Regional Director, a .hearing on the objections was held on February 10, 1975. Thereaf- ter, the Hearing Officer , issued her Report and Rec- ommendations recommending that the Regional Di- rector overrule the objections in their entirety and certify the Union. Respondent filed timely excep- tions to the report reiterating its objections. On May 28, 1975, the Regional Director issued his Second Supplemental Decision and Certification of Repre- sentative adopting the conclusions and recommenda- tions of the Hearing Officer and certifying the Union. Respondent filed a tunely request for review of the Regional Director's Second Supplemental De- cision and Certification of Representative , again set- ting forth its objections . On July 2, 1975, the Board, 222 NLRB No. 2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Member Kennedy dissenting, denied the re- quest for review as raising no substantial issues. 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? Except as hereafter discussed, all issues raised by the Respondent in this proceeding were litigated in the prior representation proceeding, and the Respon- dent 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. With respect to its second, affirmative defense that there has been no request to bargain and therefore there is no 8(a)(5) violation, we note that Respondent admits that its attorney sent a letter to the Union's attorney dated July 14, 1975, which expresses Respondent's intent to refuse to bargain with the cer- tified Union in order to obtain judicial review of the Board's decision refusing to sustain its representation case objections. Since it is apparent that, after the receipt of Respondent's letter, a specific demand for bargaining would have been futile, such a request to bargain is not a prerequisite to the finding of, an 8(a)(5) violation. Old Town Shoe Company, 91 NLRB 240 (1950); N.L.R.B. v. Burton-Dixie Corporation, 210 F.2d 199 (C.A. 10, 1954), enfg. 103 NLRB 880 (1953). Accordingly, we find this defense lacking in merit and that Respondent has refused to bargain on and after July 14, 1975. Respondent's third affirmative defense is that the complaint issued by the Acting Regional Director is a nullity and ultra vires the Board because there is nothing in'the Act or in the Board's Rules and Regu- lations which provides for the creation of an Acting Regional Director or gives the Acting Regional Di- rector the authority to issue complaints. This conten- tion is without merit. Under Section 10(b), a Board agent may be designated to issue complaints and Section 3(d) gives the General Counsel final authori- ty, on behalf of the Board, in respect to the issuance of complaints. On October 31, 1975, the Regional Director filed and duly served on all parties a re- sponse to Respondent's third affirmative defense, stating that the General Counsel has delegated au- 2 See Pittsburgh Plate Glass 'Co v. N LR B, 313 U.S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c). thority to him to designate the Assistant to the Re- gional Director as Acting Regional Director when his absence is not-expected to exceed 30 days and that, with respect to the delegation of authority herein, he had so designated Henry L. Chiles, Jr., the Assistant to the Regional Director, to act as Acting Regional Director during his absence. As the statement of the Regional Director is uncontroverted, we find that the Regional Director, under authority delegated to him by the General Counsel, properly designated Henry L. Chiles, Jr., as Acting Regional Director with au- thority to issue the complaint herein. Accordingly, we shall 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 Richardson Chemical Company, Allied Kelite Products Division, an Ohio corporation with its prin- cipal office and plant located in Highland Park, Michigan, is engaged in the manufacture and pro- cessing of chemicals and related products at its High- land Park plant, the only facility involved in these proceedings. During the past 12 months, a represen- tative period, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Highland Park plant, chemicals and other goods and materials val- ued in excess of $100,000, of which goods and mate- rials valued in excess of $50,000 were transported and delivered to its plant in Highland Park directly from points located outside the State of Michigan. 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. II. THE LABOR ORGANIZATION INVOLVED International Union, Allied Industrial Workers of America, 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 I. The unit The following employees of the Respondent con- RICHARDSON CHEMICAL COMPANY stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time office clerical employees, including inventory control clerks, research coordinator and formula control em- ployees, switchboard operators, receptionists, and mailroom employees employed by the Em- ployer at its facilities located at 364, 370, and 400 Midland Avenue, Highland Park, Michigan; but excluding all production and maintenance employees, plant clericals, salesmen, confiden- tial employees, managerial employees, profes- sional employees and guards and supervisors as defined in the Act. 2. The certification On January 16, 1975, 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 7 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 May 28, 1975, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. Respondent's Refusal To Bargain On July 14, 1975, Respondent, by its attorney, in a letter to the Union's attorney, stated its intention to refuse to bargain with the certified Union. Accordingly, we find that the. Respondent has, since July 14, 1975, 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 7 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. Richardson Chemical Company, Allied Kelite Products Division, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time office cleri- cal employees, including inventory control clerks, re- search coordinator and formula control employees, switchboard operators, receptionists, and mailroom employees employed by the Employer at its facilities located at 364, 370, and 400 Midland Avenue, High- land Park, Michigan; but excluding all production and maintenance employees, professional employees and 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 May 28, 1975, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 July 14, 1975, and at all times thereafter, to bargain collectively with the 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the Respondent, Richardson Chemical Company,Allied Products Di- vision, Highland Park, Michigan, 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 International Union, Al- lied Industrial Workers of America, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All full-time and regular part-time office clerical employees, including inventory control clerks, research coordinator and formula control em- ployees, switchboard operators, receptionists, and mailroom employees employed by the Em- ployer at its facilities located at 364, 370, and 400 Midland Avenue, Highland Park, Michigan; but excluding all production and maintenance employees, plant clericals , salesmen, confiden- tial employees, managerial employees, profes- sional employees and guards 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 Highland Park, Michigan, facility copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Re- gional Director for Region 7 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 7, 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 " 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 Inter- national Union, Allied Industrial Workers of America, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time office cleri- cal employees, including inventory control clerks, research coordinator and formula con- trol employees, switchboard operators, recep- tionists, and mailroom employees employed by the Employer at its facilities located at 364, RICHARDSON CHEMICAL COMPANY 9 370, and 400 Midland Avenue, Highland employees, professional employees and Park, Michigan ; but excluding all production guards and supervisors as defined in the Act. and maintenance employees, plant clericals, salesmen, confidential employees, managerial RICHARDSON CHEMICAL COMPANY, ALLIED KELITE PRODUCTS