RJR Archer, Inc.

RJR ARCHER, INC. RJR Archer, Inc., Filmco Division and Freight Drivers, Dockworkers and Helpers Local Union No. 24, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 8-CA- 10653 June 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on December 10, 1976, by Freight Drivers, Dockworkers and Helpers Local Union No. 24, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on RJR Archer, Inc., Filmco Division, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint on January 11, 1977, 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 October 1, 1976, following a Board election in Case 8-RC- 10333, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about December 2, 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 represen- tative, although the Union has requested and is requesting it to do so. On January 31, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent averred that the Board's certification was improper for the following reasons: (a) that the election of May 6, 1976, upon which the Board's certification was based was so tainted with coercion, threats, and intimidation on the part of union agents and adherents, as to have been improper and a nullity, lacking the requisite laboratory conditions, and (b) that Respondent was I Official notice is taken of the record in the representation proceeding, Case 8-RC-10333, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTVElectrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 230 NLRB No. 71 wrongfully denied a hearing with respect to substan- tial and material factual issues raised during the course of the postelection proceedings. Respondent admitted that it has refused to bargain with the Union since December 2, 1976, but averred that it had no legal obligation to recognize the Union and meet and bargain collectively with it since it was not the validly certified representative of its employees. On February 14, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 25, 1977, 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. Respon- dent 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 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 attacks the Union's certification on the basis of preelection conduct by the Union and avers that Respondent was wrongfully denied a hearing with respect to substantial and material issues raised during the course of the postelection proceedings. Review of the record herein reveals that in Case 8- RC-10333 a Stipulation for Certification Upon Consent Election was approved by the Regional Director and the election was conducted on May 6, 1976. On May 13, 1976, Respondent filed objections to conduct affecting the results of the election. The tally of ballots showed that of approximately 144 eligible voters 69 cast ballots for the Union, and 66 cast ballots against the Union. The Regional Direc- tor issued his Report on Objections on July 1, 1976, recommending that the objections be overruled and the Union be certified, and on October 1, 1976, the Board issued a Decision and Certification of Repre- sentative, certifying the Union as the collective- bargaining representative of the employees in the appropriate unit (not published in bound volumes of Board Decisions). Following a request by the Union on or about November 4, 1976, that Respondent bargain collec- tively in good faith with respect to rates of pay, 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 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 499 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours, and other terms and conditions of employ- ment, Respondent refused to recognize and bargain in good faith with the Union as the exclusive bargaining representative of its employees in the certified unit. Respondent has refused to bargain with the Union since December 2, 1976. 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.2 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding,3 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. 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 RESPONDENT Respondent is now, and has been at all times material herein, a corporation duly organized and existing by virtue of the laws of the State of Delaware, with an office and place of business located at 1450 South Chillcothe Road, Aurora, Ohio, the only facility involved in this proceeding, where it is now, and has been at all times material herein, engaged in the manufacture of plastic polyvinyl film. Annually, Respondent ships products valued in excess of $50,000 from its place of business in Aurora, Ohio, directly to points located outside the State of Ohio. 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. 2 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). 3 In the representation proceeding, Respondent sought to have the Board reverse the Regional Director's dismissal of the objections, or, in the 11. THE LABOR ORGANIZATION INVOLVED Freight Drivers, Dockworkers and Helpers Local Union No. 24, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, including shipping and receiving employees, plant clerical employees, and chief operators employed at the Employer's Aurora, Ohio, facility, but excluding all office clerical employees and profes- sional employees, guards and supervisors as defined in the Act. 2. The certification On May 6, 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 8, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on October 1, 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 November 4, 1976, and at all times thereafter, the Union has requested 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 December 2, 1976, and continuing at all times thereafter to date, Respondent has refused, 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 December 2, 1976, and at all times thereafter, refused alternative, order a hearing, because the Union or its agents and adherents allegedly coerced and restrained employees by threats of violence and allegedly made impermissible material misrepresentations. 500 RJR ARCHER, INC. to bargain collectively with the Union as the exclusion representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent 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: CONCLUSIONS OF LAW 1. RJR Archer, Inc., Filmco Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Freight Drivers, Dockworkers and Helpers Local Union No. 24, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including shipping and receiving employees, plant clerical employees and chief operators employed at the Employer's Aurora, Ohio, facility, but excluding all office clerical employees and professional employ- ees, 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 October 1, 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 December 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, 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(aX)(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, RJR Archer, Inc., Filmco Division, Aurora, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Freight Drivers, Dockworkers and Helpers Local Union No. 24, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All production and maintenance employees, including shipping and receiving employees, plant clerical employees and chief operators employed at the Employer's Aurora, Ohio, facility, but excluding all office clerical employees and profes- sional employees, guards and supervisors as defined in the Act. 501 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 Aurora, Ohio, facility, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 8, 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 conspicu- ous 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 altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, 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 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 Freight Drivers, Dockworkers and Helpers Local Union No. 24, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 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, including shipping and receiving employees, plant clerical employees and chief operators employed at the Employer's Aurora, Ohio, facility, but excluding all office clerical employees and professional employees, guards and supervisors as defined in the Act. RJR ARCHER, INC., FILMCO DIVISION 502