Elixir Industries

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elixir Industries and Wholesale Delivery Drivers & Salesmen Local 848, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 21-CA-19207 January 13, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on June 25, 1980, by Whole- sale Delivery Drivers & Salesmen Local 848, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Elixir Indus- tries, herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 21, issued a com- plaint on August 1, 1980, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 Rela- tions Act, as amended. Copies of the charge and 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 May 21, 1980, following a Board election in Case 21-RC- 16273, 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 19, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On September 10, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On October 24, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 28, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent 1 Official notice is taken of the record in the representation proceed- ing, Case 21-RC-16273, 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 LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfld. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co. 167 NLRI 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969): Intertype Co. v. Penello, 269 F Supp. 573 (D.CVa. 1967); Fbllett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 254 NLRB No. 6 thereafter filed a response to the Notice To Show Cause.2 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 its response to the Notice To Show Cause, Respondent repeats the argument, first raised in the representation pro- ceeding, that the Union's certification is invalid be- cause the appointment of a student assistant to con- duct the preelection hearing and to administer oaths was contrary to Board procedure and violat- ed precepts of due process of law. In its answer to the complaint, Respondent repeats the argument, also first raised in the representation proceeding, that the Union's certification is invalid due to the exclusion of a chemist and the inventory control employees from the bargaining unit. The General Counsel argues that all material issues have been previously presented to, and decided by, the Board, and that there are no litigable issues of fact requir- ing a hearing. We agree with the General Counsel. Our review of the record herein, including the record in Case 21-RC-16273, discloses that the Re- gional Director for Region 21 issued a Decision and Direction of Election on March 28, 1980. Thereafter, Respondent filed a request for review of the Regional Director's Decision and Direction of Election, and the Board, on April 22, 1980, denied the request for review on the ground that it raised no substantial issues warranting review. An election was conducted May 2, 1980. The tally of ballots showed 18 votes cast for, and 12 against, the Union, and 3 challenged ballots. Respondent thereafter filed timely objections to the election. On May 21, 1980, the Regional Director for Region 21 issued a Supplemental Decision and Cer- tification of Representative in which he overruled Respondent's objections and certified the Union as the collective-bargaining representative of the unit found appropriate. Respondent filed a timely re- quest for review of the Regional Director's Supple- mental Decision and Certification of Representa- tive, and the Board, on June 18, 1980, denied Re- spondent's request for review on the ground that it raised no substantial issues warranting review. 2 Respondent has requested the Board to order the Regional Director for Region 21 to answer certain interrogatories submitted by Respondent and to respond to a Request foir Admissions. These requests are denied as the record before us is adequate for the purposes of our decision and, in an) event, these requests are lacking in merit 52 ELIXIR INDUSTRIES It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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. 3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent is now, and has been at all times ma- terial herein, a California corporation with an office and place of business in Gardena, California, where it is presently, and has been at all times ma- terial herein, engaged in the manufacture and sale of paint products. During the past year, in the course and conduct of its business operations, Re- spondent purchased and received at its Gardena, California, facility goods and supplies valued in excess of $50,000 directly from suppliers located outside the State of California. We find, on the basis of the foregoing, that Re- spondent 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. II. THE LABOR ORGANIZATION INVOLVED Wholesale Delivery Drivers and Salesmen Local 848, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S 166, 162 (1941); Rules and Regulations of the Board. Secs. 102.67(f and 102.69(c). III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of 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, in- cluding quality control, warehouse, receiving, tinting, fill-off, clean-up and material control employees, metal workers, batchmakers, local and long distance drivers employed by Re- spondent at its facility located at 18037 South Broadway, Gardena, California, excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On May 2, 1980, 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 21, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on May 21, 1980, 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 May 19, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 19, 1980, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 19, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate 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. 53 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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, 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Elixir Industries is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Wholesale Delivery Drivers & Salesmen Local 848, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including quality control, warehouse, receiving, tinting, fill-off, clean-up and material control em- ployees, metal workers, batchmakers, local and long distance drivers employed by Respondent at its facility located at 18037 South Broadway, Gar- dena, California, excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since May 21, 1980, 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 June 19, 1980, 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 prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Elixir Industries, Gardena, California, 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 Wholesale Delivery Drivers & Salesmen Local 848, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bar- gaining representative of its employees in the fol- lowing appropriate unit: All production and maintenance employees, in- cluding quality control, warehouse, receiving, tinting, fill-off, clean-up and material control employees, metal workers, batchmakers, local and long distance drivers employed by Re- spondent at its facility located at 18037 South Broadway, Gardena, California; excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act. 54 ELIXIR INDUSTRIES (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at Gardena, California, copies of the at- tached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Direc- tor for Region 21, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent 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. 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 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 Pursu- ant 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 Wholesale Delivery Drivers & Salesmen Local 848, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive represen- tative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 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 bargaining unit is: All production and maintenance employees, including quality control, warehouse, receiv- ing, tinting, fill-off, clean-up and material control employees, metal workers, batch- makers, local and long distance drivers em- ployed by the Employer at its facility locat- ed at 18037 South Broadway, Gardena, Cali- fornia, excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. ELIXIR INDUSTRIES 55