Preform Co., Inc.

PREFORM COMPANY, INC. Preform Company, Inc. and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Case 15-CA-5249 December 4, 1974 DECISION AND ORDER Upon a charge filed on May 2, 1974, and an amended charge filed on May 14, 1974, by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein called the Union, and duly served on Preform Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on June 5, 1974, against Respondent, alleg- ing 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 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 19, 1974, following a Board election on Case 15-RC-5296 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about February 1, 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 and asserting an affirmative defense. On June 20, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 2, 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. Respondent thereafter filed a response to Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: I Official notice is taken of the record in the representation proceeding, Case 15-RC-5296, 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 LTVElectrosystems, 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 Ruling on the Motion for Summary Judgment 233 In its answer to the complaint and in its response to the Notice To Show Cause, Respondent admits all of the substantive averments of the complaint but asserts as an affirmative defense the ineligibility of the Union for representative status because of its policy and prac- tice of racial discrimination. The General Counsel as- serts that the issues framed in Respondent's objections to the election and in its Request for Review in the underlying representation proceeding were disposed of by the Board's denial of review, thus leaving no triable issue requiring a hearing. We agree with the General Counsel. Our review of the record herein, including the record in Case 15-RC-5296, discloses that, after a hearing,2 the Regional Director directed an election, conducted on January 18, 1974, which resulted in a vote of 49 to 1 in favor of the Union. Respondent filed timely objections to conduct affecting the results of the election and a supporting brief. Respondent's single objection alleged that the Union engages in. racial dis- crimination, thereby rendering it ineligible to act as collective-bargaining representative of Respondent's employees. After investigation and considering the Re- spondent's letter of February 12, 1974, and the cases submitted in support of its objection, the Regional Di- rector issued, on March 19, 1974, a Supplemental Deci- sion and Certification of Representative in which he found that the objections raised no substantial or material issues as to the election or its results, overruled the objection in its entirety, and certified the Union. On April 1, 1974, Respondent filed a Request for Review of the Regional Director's Supplemental Deci- sion and Certification of Representative, together with a supporting brief in which it substantially reiterated the matters raised in its objection to the election and alleged that the Board's Rules and Regulations effec- tively cut off its attempts to establish racial discrimina- tion at a hearing. In a telegraphic communication of April 19, 1974, the Board denied Respondent's Request for Review as raising no substantial issues warranting review. In its response to the Notice To Show Cause, the Respondent reiterates its representation case conten- tion that a hearing is required to determine the issue of whether the Union is engaging in racial discrimination, citing the newly issued decision in Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974). 2 After several requests for a continuance, which were denied by the Regional Director, Respondent failed to appear, by either attorney or re- presentative, at the hearing The Regional Director's refusal to grant a continuance was the subject of a Request for Review of the Regional Direc- tor's Decision and Direction of Election of December 21, 1973 The request was denied by the Board on January 11, 1974, as raising no substantial issues warranting review 215 NLRB No. 9 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This contention assumes, however, that the Respond- ent raised, in the representation case, the existence of a substantial and material question of fact concerning this issue. Not having presented any facts in the re- presentation case to support its allegations there, a hearing is not required. Accordingly, we find no merit in this contention. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior re- presentation 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 prop- erly 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 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 pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by Respondent at its Jackson, Mississippi,' facility including truckdrivers, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On January 18, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 15, designated the Union as their represen- tative 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 March 19, 1974,,and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. I THE BUSINESS OF THE RESPONDENT Respondent, a Mississippi corporation with its office and place of business in Jackson, Mississippi, is en- gaged in the manufacture of cardboard packing material. During the past year, Respondent sold and shipped goods and materials valued in excess of $50,- 000 to customers, each of which annually produces and ships goods valued in excess of $50,000 directly to points located outside the State of Mississippi. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. 11 THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum and Plastic Work- ers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 See Pittsburgh Plate Glass Co. v N.I..R.B., 313 U.S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c) B. The Request To Bargain and Respondent 's Refusal Commencing on or about January -28, 1974, and at all times thereafter, the Union has requested the Re- spondent 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 January 30, 1974, and continuing at all times thereafter to date, and by the unilateral changes on February 1, 1974, in existing wage rates of employees and insurance benefits available to employees the Re- spondent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive re- presentative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since January 30, 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, and by its February 1, 1974, unilateral changes in existing wage rates of employees and insurance benefits available to employees Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. PREFORM COMPANY, INC. 235 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 de- scribed 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 commerce. 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, bar- gain collectively with the Union as the exclusive rep- resentative of all employees in the appropriate unit, and, if an understanding is reached , embody such un- derstanding in a signed agreement. Having found that Respondent unilaterally and un- lawfully changed its existing wage rates and insurance benefits available to employees, we shall direct that Respondent reinstitute its former wage rates and insur- ance benefits and make whole its employees for any losses they may have incurred as a result of such changes, together with interest at the rate of 6 percent per annum. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com- merce 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 Com- pany, 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. Perform Company, Inc., 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, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Jackson, Mississippi, facility including truckdrivers, 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 March 19, '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 bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 30, 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 Respond- ent in the appropriate unit, and by unilaterally chang- ing on February 1, 1974, existing wage rates of employees and insurance benefits available to em- ployees, 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 in- terfering 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 engag- ing 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 Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Preform Com- pany, Inc., Jackson, 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, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent at its Jackson, Mississippi, facility including truckdrivers, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) Unilaterally changing existing wage rates of em- ployees or existing insurance benefits available to em- ployees. (c) 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. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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. (b) Reinstitute its formerly existing wage rates and insurance benefits and make whole its employees for any losses they may have suffered as a result of the unilateral changes in wage rates or insurance benefits in the manner set forth in the section herein entitled "The Remedy." (c) Post at its office and place of business in Jackson, Mississippi, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms pro- vided by the Regional Director for Region 15 after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable 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 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 cerning rates of pay, wages, hours, and other terms and conditions of employment with United Rub- ber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed below. - WE WILL NOT unilaterally change existing wage rates of employees or existing insurance benefits available to employees. WE WILL NOT in any like or related manner inter- fere 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 under- standing in a signed agreement . The bargaining unit is: All production and maintenance employees employed by the Employer at its Jackson, Mis- sissippi, facility including truckdrivers, but ex- cluding all office clerical employees , profes- sional employees, guards and supervisors as defined in the Act. WE WILL reinstitute our formerly existing wage rates and insurance benefits and make whole our employees for losses they may have suffered as a result of the unilateral changes in wage rates or insurance benefits. PREFORM COMPANY, INC. 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 con-