Certain-Teed Products Corp.

CERTAIN-TEED PRODUCTS CORPORATION 971 Certain-Teed Products Corporation and International Union of United Automobile , Aerospace & Agricul- tural Implement Workers of America, UAW. Case 9-CA-9859 sors, and assigns, shall take the action set forth in the said recommended Order. DECISION August 18, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On May 26, 1976, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. 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). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Certain-Teed Products, Corp., Corbin, Kentucky, its officers, agents, succes- 1 The Employer contends in its exceptions that the Hearing Officer and the Board in the underlying representation proceeding failed to fully consid- er its objections to certain conduct by the Union We find that the issue of waiver of initiation fees, both as to the specific contention of the illegality of certain written materials and the alleged misrepresentation in the solicita- tion of employees to sign authorization cards, was disposed of in the repre- sentation proceeding STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The charge herein was filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein called Union, on No- vember 25, 1975, and the complaint thereon was issued by the General Counsel for the National Labor Relations Board on January 13, 1976, alleging that Certain-Teed Products Corporation, herein called Respondent or Em- ployer, violated Section 8(a)(5) and (1) of the National La- bor Relations Act, as amended, by refusing to recognize, meet, and bargain with the Union. The answer thereto was timely filed by Respondent. Pursuant to notice, the hearing was held before the Administrative Law Judge at London, Kentucky, on April 28, 1976. At the hearing, the General Counsel moved for summary judgment which I granted based on the facts and for the reasons set forth below. Ruling on Motion for Summary Judgment Certain allegations of the complaint were resolved at the hearing With respect to paragraph 4 of the complaint, Re- spondent in its answer admits that Richard Wagner is plant manager, but denied paragraph 4 as alleged on the grounds that he was not plant manager "At all times mate- rial" as alleged. This matter was resolved by a stipulation reciting that Wagner has been plant manager since Octo- ber 1, 1975. Paragraphs 5, 6, 7, and 8 are, in order, allegations of appropriate unit; majority vote for the Union in the May 30, 1974, election, certification by the Board on October 17, 1975; and the status of the Union as the exclusive bar- gaining representative of the unit employees. Respondent is not contesting the factual accuracy of these allegations, but denied them pro forma because of its basic contention. Its basic contention is that the Respondent has no obliga- tion to bargain with the Union because the Board certifica- tion herein is invalid. Since these allegations of paragraphs 5, 6, 7, and 8 are not being contested, except insofar as they are incident to the Respondent's position with respect to the propriety of the certification, and further, since these allegations are supported by documentary evidence (G.C. Exh. 2(a) through 2(o) ), I conclude that these four allega- tions of the complaint have been established. Paragraphs 9 and 10 of the original complaint allege a request for recognition and bargaining by the Union, and a refusal to bargain by the Respondent. At the hearing, upon a motion to amend which I granted, these two paragraphs were combined into a single paragraph 9,1 alleging, "On or about November 24, 1975 the Union orally requested Re- spondent to recognize and bargain with it as the exclusive 1 Subsequent paragraphs of the complaint were renumbered accordingly 225 NLRB No. 140 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the employees in the unit described in Paragraph 5 above concerning rates of pay , wages, hours of employment and other terms and conditions of employ- ment, and on that same date, an agent of Respondent oral- ly advised the Union that it did not intend to bargain col- lectively with it as the representative of the employees in the unit described in Paragraph 5, above , concerning wag- es, rates of pay, hours of employment and other terms and conditions of employment of such employees until the va- lidity of the Board's certification is established by the Board and, if necessary, by the court." As so amended, paragraph 9 was admitted by Respondent. Paragraphs 10 and 11 (11 and 12 of the original com- plaint) are essentially conclusionary and remain in issue, as Respondent acknowledges, only because of its contention that the underlying certification is invalid. All parties, including the Respondent, agree that except as related to Respondent's contention that the underlying certification is invalid , none of the allegations of the com- plaint are in dispute . The General Counsel therefore moved for summary judgment on the grounds that there was no litigable issue before me for decision . Respondent opposed the motion. While conceding that the factual alle- gations of the complaint are not in issue, the Respondent nevertheless maintains that there is an outstanding unre- solved issue as to the validity of the certification which I must decide, and that its obligation to bargain depends upon its resolution. As to the issue of the certification, Respondent recites the fact that it filed four objections to the election. Subse- quently, the Regional Director, upon investigation and without a hearing, issued a report on election, objections to election and recommendations to the Board recom- mending that the Employer's objections be overruled in their entirety. Upon exceptions thereto filed by Respondent, the Board ordered the matter referred back to the Regional Director for the purpose of conducting a hearing , inter aha, in order to receive evidence as to whether, "as alleged in portions of objections 1 and 4 , the Petitioner led employees to believe that its offer to waive initiation fees was available only to employees who signed authorization cards before the elec- tion " 2 A hearing was held, and the Hearing Officer rec- ommended these objections be overruled and a certifica- tion issued. Respondent filed exceptions to these recommendations . The Board, however, adopted the Hear- ing Officer's findings and recommendations and certified the Union.3 The gravamen of the Respondent's position is that the Hearing Officer in his report did not rule on the Respondent's specific contention of illegality in certain 2 Objections I and 4 read I The Petitioner made substantial misrepresentations at a time which prevented the Employer from making an effective reply written material promulgated by the Union stating that the Union conditioned the waiver of initiation fees upon the signing of a union authorization card prior to the election. Further, that neither did the Board pass on this specific matter since it summarily affirmed the recommendations of the Hearing Officer. In these circumstances, it is the Respondent's position that its specific contention as to the coercive effect of the written material should be heard by me because the Hearing Officer and the Board failed to rule specifically thereon. The Respondent further takes the position that the Board erred in its findings as to the other allegations of objectionable conduct and that I should rule on those objections also. I do not agree with either contention . It is clear, as a matter of Board and court precedent , that findings of the Board on objections in a prior related representation case are conclusive in a subsequent unfair labor practice case. Lyman Printing & Finishing Co, 183 NLRB 1048, enfd. 437 F.2d 1356 (C.A. 4), cert. denied 404 U.S. 829; Pittsburgh Plate Glass Co. v. N.L R.B., 313 U.S . 146 (1941); NLRB Rules and Regulations , Secs. 102.67(f) and 102.69(c). Clearly then the Respondent 's contention that those objec- tions other than the written waiver of initiation fees should be redetermined herein must fail because these are matters which have already been litigated and are not litigable again in this unfair labor practice case. Paramount Metal & Finishing Co., Inc., 223 NLRB 1337 (1976). However, Respondent appears to contend that , even as- suming the general validity of this nonrelitigation rule, the circumstances herein are distinguishable since the Board, in its view , has not made necessary specific findings as to the alleged coercive effect of the above-mentioned initia- tion fee waiver documents . Accordingly, the certification is invalid and the specific issue is properly before the Admin- istrative Law Judge for determination. I disagree. I have reviewed the relevant representation case documents and conclude that any assumption that the Board did not con- sider the specific issue is unwarranted despite the fact that the Hearing Officer and the Board may have overruled the objection in issue with less specificity than Respondent deemed necessary . I do not have the authority to substitute my judgment for the judgment of the Board when it con- cluded that the objections should be overruled and the Union certified. It is significant to note in this regard that the first paragraph of the Board's Supplemental Decision and Certification of Representative which reads: Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered objections to an election held on May 30, 1974 , and the Hearing Officer's Report recommending disposition of same. The Board has reviewed the record in light of the excep- tions and briefs and hereby adopts the Hearing Officer's findings and recommendations . [Footnotes omitted ; emphasis supplied.] P el of from s ch alle ed deficiences lies with either the i u 4 In addition , the Petitioner engaged in a course of conduct which interfered with the free choice of employees 3 All of the above-mentioned documents are in evidence as part of Board Exhs 2(a) through 2(o) g Board itself, on a motion to reconsider the matter, or with the appropriate United States circuit court of appeals upon appeal to that tribunal from the Decision of the Board. In my view the Respondent did not raise any litigable issue in CERTAIN-TEED PRODUCTS CORPORATION this matter and I therefore granted the motion for summa- ry judgment. On the basis of the entire record, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer is a Maryland corporation engaged in the manufacture of fiber insulation at its Corbin, Kentucky, plant. During the past 12 months, Employer had a direct outflow of goods and materials in interstate commerce, val- ued in excess of $50,000 which it sold and caused to be shipped from its Corbin, Kentucky, plant directly to points located outside the State of Kentucky. Employer is now and has been at all times material herein an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 973 B. The Request To Bargain and Respondent's Refusal On or about November 24, 1975, the Union orally re- quested Respondent to recognize and bargain with it as the exclusive representative of the employees in the unit above, concerning rates of pay, wages, hours of employment and other terms and conditions of employment and on that same date, an agent of Respondent orally advised the Union it did not intend to bargain collectively with it as a representative of the employees in the above-described unit concerning wages, rates of pay, hours of employment and other terms and conditions of employment of such employ- ees, until the validity of the Board's certification is estab- lished by the Board and if necessary, by the court. Accordingly, I conclude that the Union was duly certi- fied as the collective-bargaining representative of the em- ployees of the Respondent described in the Board's certifi- cation and that the Union at all times since November 24, 1975, refused to bargain collectively in the appropriate unit and that by such refusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. II. THE LABOR ORGANIZATION The complaint alleges that International Union , United Automobile , Aerospace and Agricultural Implement Workers of America, UAW, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act, the answer admits this allegation and I so find. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Respondent's Corbin, Kentucky, plant, but excluding quality control employees, store room attendants, shipping and receiving clerks, all office clerical em- ployees, professional employees, guards and supervi- sors as defined in the Act. 2. The certification On or about May 30, 1974, a majority of the employees of the Respondent in the above unit by secret ballot elec- tion conducted under supervision of the Regional Director for Region 9, designated and selected the Union as their exclusive bargaining representative for the purposes of col- lective bargaining with Respondent. On or about October 17, 1975, the Board certified that the Union had been des- ignated and selected by a majority of the employees of Respondent in the unit described above, as their exclusive bargaining representative for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and upon request bargain collectively with the Union as the exclusive representative of all the employ- ees in the appropriate unit, and if an understanding is reached, embody such understanding in a signed agree- ment. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following CONCLUSIONS OF LAW 1. Respondent is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Corbin, Kentucky, plant, but excluding qual- ity control employees, store room attendants, shipping and receiving clerks, 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 October 17, 1975, the above-named labor orga- nization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 24, 1975, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargaining rep- resentative of all employees of Respondent in the appropri- ate 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 meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, I hereby issue the following recommended: employed, copies of the attached notice marked "Appen- dix." 5 Copies of said notice , on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respon- dent 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 Re- spondent to insure that said notices are not altered, de- faced , or covered by any other material. (c) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 5In the event that the Board's 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 " ORDER4 Respondent, Certain-Teed Products Corporation, Cor- bin, Kentucky, 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 em- ployment, with International Union, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca, UAW, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees at the Respondent's Corbin, Kentucky, plant , but excluding quality control employees, store room attendants, shipping and receiving clerks, all office clerical em- ployees, professional employees , guards and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the rights guaranteed them in Section 7 of the Act 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment and, if an understanding is reached , embody such understanding in a signed agreement. (b) Post at its offices and places of business in Corbin, Kentucky, where employees represented by the Union are 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 with In- ternational Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, as the exclusive representative of the employ- ees 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 by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union as the exclusive representative of all em- ployees in the bargaining unit described below 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 . The bargaining unit is: All production and maintenance employees at the Respondent's Corbin, Kentucky, plant, but exclud- ing quality control employees, store room atten- dants, shipping and receiving clerks, all office cleri- cal employees , professional employees, guards and supervisors as defined in the Act. CERTAIN-TEED PRODUCTS CORPORATION