Bisonite Co.

BISONITE COMPANY Bisonite Company, Inc. and Oil, Chemical and Atomic Workers International Union, AFL-CIO-CLC. Case 3-CA-8004 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER Upon a charge filed on June 20, 1977, by Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called the Union, and duly served on Bisonite Company, Inc., herein called the Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint on June 30, 1977, against Respondent, alleging 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 complaint alleges in substance that on June 7, 1977, following a Board election in Case 3-RC-6806 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 June 17, 1977, 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 July 11, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 19, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Respondent, by letter of July 21, 1977, indicated that it would not oppose the General Counsel's Motion for Summary Judgment.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the I Official notice is taken of the record in the representation proceeding. Case 3-RC4806. 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 LTIV Elecrocrstrems. 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): Inrerripe Co. v. Penello. 269 F.Supp. 573 (D.C.Va.. 1967); Folletr Corp.. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7. 1968):; Sec. 9(d) of the NLRA. as amended. 2 In its letter of July 21, 1977, the Respondent through its attorney notified the Board that it was not opposing the General Counsel's Motion to TIransfer and for Summary Judgment inasmuch as it was Respondent's intention to seek judicial review by the court of appeals of the Board's determination concerning the underlying representation case. 231 NLRB No. 174 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, Respondent denies so much of the complaint that avers that the election and certification were proper and that the certifica- tion of the Union was issued without proper investigation of and without a hearing on Respon- dent's objections to the election.3 In the Motion for Summary Judgment, the General Counsel submits that Respondent's answer does not allege the existence of newly discovered evidence which would justify relitigation of the issues raised, and that, therefore, the Motion for Summary Judgment should be granted. 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.4 All issues raised by the Respondent in this proceeding 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 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 Bisonite Company, Inc., a New York corporation, at all times material herein has distributed and sold paint and related products in the State of New York. 3 A review of the record herein. including that in Case 3-RC-6806. discloses that the election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The Union prevailed by a rotle of 15 to 13. Following the election Respondent filed timely objections alleging "gross misconduct of a person or persons, presently unknown, which affected the voting.... After an investigation, the Regional Director for Region 3 issued a report on objections in which he recommended the objections be overruled. Respondent took timely exceptions thereto. On June 7, 1977, the Board issued its Decision and Certification of Representa- tive in which it stated that Respondent's exceptions raised no issues warranting reversal of the Regional Director or requiring a hearing. 4 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146. 162 (1941); Rules and Regulations of the Board. Secs. 102 67(f0 and 102.69(c). 1045 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The principal office and place of business of Bisonite Company, Inc., is at 2250 Military Road, Tonawan- da. New York. During the past 12 months, Respon- dent, in the course and conduct of its business operations, manufactured, sold, and distributed at said Tonawanda, New York, plant products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plant directly to States of the United States other than the State of New York. 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. 11. THE L.ABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its 2250 Military Road, Tonawanda, New York, facility; excluding all other clerical employees, professional employ- ees, technical employees, guards, and supervisors as defined in the Act. 2. The certification On January 14, 1977, 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 3, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on June 7, 1977, 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 June 13, 1977, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 17, 1977, and at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 13, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and, 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 opera- tions described 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 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 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: 1046 BISONITE COMPANY CONCLUSIONS OF LAW 1. Bisonite Company, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO-CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its 2250 Military Road, Tonawanda, New York, facility; excluding all office clerical employees, professional employees, technical 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 June 7, 1977, 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 purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 17, 1977, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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, Bisonite Company, Inc., Tonawanda, New York, 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 Oil, Chemical and Atomic Workers International Union, AFL-CIO- CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by the Employer at its 2250 Military Road, Tonawanda, New York, facility; excluding all office clerical employees, professional employ- ees, technical 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 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Tonawanda, New York, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 3, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 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 Oil, Chemical and Atomic Workers International Union, 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. 1047 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive 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 agree- ment. The bargaining unit is: All production and maintenance employees employed by the Employer at its 2250 Military Road, Tonawanda, New York, facility; excluding all office clerical employ- ees, professional employees, technical em- ployees, guards, and supervisors as defined in the Act. BISONITE COMPANY, INC. 1048