Piper Industries, Inc.

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Piper Industries, Inc., Plastic Products Division and United Rubber, Cork, Linoleum and Plastic Work- ers of America, AFL-CIO. Case 15-CA-5390 December 6, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on August 19, 1974, by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein called the Union, and duly served on Piper Industries, Inc., Plastic Products Divi- sion, herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Re- gional Director for Region 15, issued a complaint on August 29, 1974, against Respondent, alleging that Re- spondent has 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 July 17, 1974, follow- ing a Board election of Cases 15-RC-5187 and 15-RC-5189, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about June 3, 1974, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, al- though the Union has requested and is requesting to do so, and has unilaterally changed wages of employees in the unit. On September 5, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and submitting two affirmative defenses. On September 9, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, asserting that Respondent, by its answer to the complaint, admits having engaged in conduct violative of the Act, and is attempting to reliti- gate issues raised and litigated in the underlying rep- resentation proceeding. Subsequently, on September I Official notice is taken of the record in the representation proceeding, Cases 15-RC-5187 and 15-RC-5189, 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., 1957); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 23, 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 Judg- ment should not be granted. Respondent thereafter filed 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: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice to Show Cause, Respondent opposes the Motion for Summary Judgment on the grounds that the certifi- cation issued the Union in the underlying representa- tion proceeding is invalid because of an improper unit determination and the erroneous resolution of its objec- tions to the election. Review of the representation proceeding record, which is before us, indicates that the Respondent sought a separate unit at each of its plants, whereas the Union and the intervening labor organizations sought a single unit for both plants. Following a hearing, the Regional Director issued a Decision and Direction of Election, finding appropriate a single unit, and direct- ing an election therein. Respondent filed a request for review of this determination, reasserting its contention before the Board that the single unit was inappropriate. On August 30, 1973, the Board denied the Respon- dent's request for review as it raised no substantial issues warranting review. The first election was incon- clusive, and a runoff election was conducted, in which the Union prevailed. Respondent and the intervening labor organization filed timely objections to the elec- tion, asserting that Respondent's sending home a num- ber of employees and the failure to update the eligibility list rendered the election nonrepresentative. On Janu- ary 23, 1974, the Regional Director issued a Second Supplemental Decision and Certification of Represen- tative, in which he found, inter alia, that no eligible employees had been foreclosed from voting and that a representative number had participated in the election. Thereafter, Respondent requested review of the Re- gional Director's decision, reasserting its contentions before the Board. On March 4, 1974, the Board granted the Respondent's request for review. Upon full consid- eration of the record, the Board, on July 17, 1974, issued a Decision on Review and Certification of Representative,' adopting the findings and recom- z Piper Industries, Inc., Plastic Products Division, 212 NLRB No. 66 (1974). 215 NLRB No. 68 PIPER INDUSTRIES, INC. mendations of the Regional Director and certifying the Union. It thus appears that we have previously considered the Respondent's contentions both as to the unit and the objections to the election. 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 representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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 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, a Tennessee corporation, is licensed to do, and is doing, business at a facility in Jackson, Mis- sissippi, where it is engaged in the production of molded plastic products and television cabinets. Dur- ing the past 12 months, which period is representative of all times material herein, Respondent purchased and received goods valued in excess of $50,000 at its Jack- son, Mississippi, facility directly from points located outside the State of Mississippi. During the same period, Respondent sold and shipped goods and materials valued in excess of $50,000 from its Jackson, Mississippi, facility directly to purchasers located out- side 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. 3 See Pittsburgh Plate Glass Co v NLR B., 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(1) and 102 69(c) Respondent denies the appropriateness of the unit in its answer to the complaint This issue, having been raised and litigated, both before the Regional Director and the Board, in the representation case, may not be relitigated herein Cherokee Nitrogen Company, 200 NLRB 630 (1972) 11 THE LABOR ORGANIZATION INVOLVED 369 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. 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 Employer at its plastic molding and cabinet plants, located in Jackson, Mississippi, ex- cluding office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. 2. The certification On November 28, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Direc- tor for Region 15, designated the Union as their rep- resentative 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 July 17, 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 February 4, 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 June 3, 1974, and continuing at all times the- reafter to date, the Respondent has refused, and contin- ues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit, and has unilaterally changed the existing wage rates of employees in the unit. Accordingly, we find that the Respondent has, since June 3, 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, Respondent has engaged in 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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, and cease and desist from unilaterally changing the existing wage rates of employees in the unit. 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 Hotes 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: clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 17, 1974, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 3, 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, and by unilaterally changing the wage rates of employees in the 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 and unilateral wage changes, Respondent has interfered with, re- strained, and coerced, and is interfering with, restrain- ing, 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 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, Piper Indus- tries, Inc., Plastic Products Division, Jackson, Missis- sippi, 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: CONCLUSIONS OF LAW 1. Piper Industries, Inc., Plastic Products Division, is an employer engaged in commerce within the mean- ing 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 Employer at its plastic molding and cabinet plants, located in Jackson, Mississippi, excluding office All production and maintenance employees em- ployed by Employer at its plastic molding and cabinet plants, located in Jackson , Mississippi, ex- cluding office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. and unilaterally changing wages of employees in said appropriate unit. PIPER INDUSTRIES, 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 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) Post at its Jackson, Mississippi, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 15, after being duly signed by Respon- dent's representative, shall be posted by Respondent 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 Respondent to insure that said notices are not al- tered, 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. 5 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." 371 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 con- 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, or unilaterally change the wages of the employees in said unit. 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 it: All production and maintenance employees employed by Employer at its plastic molding and cabinet-plants, located in Jackson, Missis- sippi, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. PIPER INDUSTRIES, INC., PLASTIC PRODUCTS DIVISION