Oil-Dri Production Co.

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oil-Dri Production Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC. Case 26-CA-6230 December 23, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a charge filed on July 12, 1976, by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, herein called the Union, and duly served on Oil-Dri Production Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint and notice of hearing on July 22, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 June 7, 1976, following a Board election in Case 26-RC-5145 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 January 16, 1976, 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 August 2, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 23, 1976, counsel for- the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 2, 1976, 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 there- after filed a response to Notice To Show Cause. I Official notice is taken of the record in the representation proceeding, Case 26-RC-5145, as the term "record" is defined in Secs. 102.68 and 102.69(8) 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 (CA . 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 On December 10, 1975, a Decision and Direction of Election was issued in Case 26-RC-5145 and, on December 16, 1975, Respondent filed a request 227 NLRB No. 69 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 its response to the Notice To Show Cause, Respondent denies the Union's majority status and the validity of the Union's certification on the basis of its objections in the underlying representation case, which it asserts were overruled without a hearing being held thereon and upon which a hearing should be held. Review of the record herein, including the record in Case 26-RC-5145, reveals that, pursuant to a Stipula- tion for Certification Upon Consent Election,2 an election was conducted on January 15 and 16, 1976, which the Union won. Thereafter, Respondent filed timely objections to union conduct affecting the election, alleging in substance,3 (1) misrepresenta- tions as to the amount and effect of union-negotiated wage increases at other companies; (2) misrepresen- tations as to the effect of Internal Revenue Service regulations and tax returns on the payment of union dues; (3) creation of an atmosphere of fear and coercion by informing employees that their failure to support the Union could result in the loss of jobs or in the discharge of such employees; and (4) improper interference with the results of the election by these and other activities, conduct, interference, and the like. On February 20, 1976, after investigation of the objections, the Regional Director issued a Report on Objections in which he recommended that all the objections be overruled and that the Union be certified as the collective-bargaining representative of the employees in the stipulated unit. Respondent thereafter filed timely exceptions to the Regional Director's report, in which it, inter alia, contended that the Regional Director recommended overruling its objections without directing a hearing thereon although the investigation disclosed substan- tial and material issues of fact upon which a hearing should be held. On June 7, 1976, a Board panel of Chairman Murphy and Members Jenkins and Walth- er adopted the Regional Director's findings and for review thereof. On December 17, 1975, Respondent withdrew its request for review, pending approval by the Regional Director of the parties' Stipulation for Certification Upon Consent Election which was entered on the same date. Thereafter, the Regional Director issued a Supplemental Decision and Order withdrawing his earlier Decision and Direction of Election. 3 While not specifically alleged in the objections, Respondent also requested that the Regional Director consider incidents involving statements as to deductions from the wages of employees not joining the Union, and as to possible withdrawal of pay increases already granted to employees. OIL-DRI PRODUCTION COMPANY 541 recommendations and certified the Union, thereby, in effect, finding that Respondent's objections did not raise substantial and material issues of fact requiring a hearing.4 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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.5 All issues raised by the Respondent in this proceed- ing 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 proceedings We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, a corporation doing business in the State of Mississippi, with an office and place of business located in Ripley, Mississippi, where it is engaged in the mining, processing, and distribution of mineral absorbents. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased and received at its Ripley, Mississippi, location, products valued in excess of $50,000 directly from points outside the State of Mississippi. 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 meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 4 Decision and Certification of Representative not reported in volumes of Board Decisions. In adopting the Regional Director's findings and recom- mendations, Chairman Murphy and Member Walther stated that the alleged misrepresentations, do not warrant setting the election aside inasmuch as the same result is reached under any view of the applicability of Modme Manufacturing Co., 203 NLRB 527 (1973), and Hollywood Ceramics Compa- ny, Inc., 140 NLRB 221 (1962) 5 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). 6 In its response to the Notice To Show Cause , Respondent contends that, in reaching his conclusion with regard to certain of its objections in Case 26- II. THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum and Plastic Work- ers of America, AFL-CIO, CLC, is a labor organiza- tion 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 consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: All production and maintenance employees including laboratory employees, truckdrivers, drilling and mining employees employed at the Employer's Ripley, Mississippi, location, but excluding all office clerical employees, profession- al employees, guards, and supervisors as defined in the Act. 2. The certification On January 15 and 16, 1976, 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 26, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 7, 1976, 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 February 2, 1976, and at all times thereafter, specifically including-on or about June 18, 1976, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about July 2, 1976, and continuing at all times thereafter to date, the Respondent has refused, and RC-5145, the Regional Director resolved , without benefit of a hearing, critical credibility conflicts between witnesses, thereby failing to afford Respondent due process of law. Accordingly, it requests ahearingthereon in this unfair labor practice proceeding. We find no meet in Respondent's due process contention as it is well established that parties do not have an absolute right to a hearing on objections, and that denial of a hearing where, as here, the objections raise no substantial and material issues does not constitute denial of due process. J. C. Penney Company, Inc., 224 NLRB 469 (1976). 'Further, Respondent's request for a hearing herein is denied, as it is established that no hearing is required where, as here, there are no'litigable issues of fact to be resolved. RedArrow Delivery, Inc, 222 NLRB 270 (1976). 542 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective- bargaining of all employees in said unit.7 Accordingly, - we find that the Respondent has, since July 2, 1976, 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, Respondent has engaged in and is engaging in unfair labor practices 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 operations described in section 1, 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 com- merce and the free flow of commerce. V. THE REMEDY Having found the 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. Oil-Dri Production Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers 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 including laboratory employees, truckdrivers; drilling and mining employees employed at the Employer's Ripley, Mississippi, location, 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 bar- gaining within the meaning of Section 9(b) of the Act. 4. Since June 7, 1976, 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 July 2, 1976, 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, 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 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 the Respondent, Oil-Dri Production Company, Ripley, Mississippi, 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 Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, as the exclusive bargaining repre- sentative of its employees in the following appropri- ate unit: v Respondent's answer admits that the Union requested bargaining in January 16, 1976, Respondent's refusal to bargain as of July 2, 1976, is letters dated February 2, May 6, and June 18, 1976, copies of which are established by its letter of refusal dated July 2, 1976, also attached as an attached as exhibits to the General Counsel's Motion for Summary exhibit, which is in response to the Union's June 18, 1976, letter requesting Judgment. Although Respondent's answer denies its refusal to bargain as of collective-bargaining negotiations, and which stands uncontroverted OIL-DRI PRODUCTION COMPANY 543 All production and maintenance employees including laboratory employees, truckdrivers, drilling and mining employees employed at the Employer's Ripley, Mississippi, location, but excluding all office clerical employees, profession- al employees, 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 orgainzation 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 Ripley, Mississippi, facility, copies of the attached notice marked "Appendix." 8 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 thereaf- ter, 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 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. c: 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 United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, as the exclusive repre- sentative 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 representative 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 agreement. The bar- gaining unit is: All production and maintenance employ- ees including laboratory employees, truck- drivers, drilling and mining employees em- ployed at the Employer's Ripley, Mississippi, location, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 8 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 OIL-DRI PRODUCTION COMPANY