Consolidated Papers, Inc.

CONSOLIDATED PAPERS, INC Consolidated Papers, Inc. and Office & Professional Employees International Union, Local 95, AFL- CIO. Case 30-CA-5815 November 13, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND ME MBHIRS JI NKINS ANI) P NI 0 Upon a charge filed on May 12, 1980,' by Office & Professional Employees International Union, Local 95, AFL-CIO, herein called the Union, and duly served on Consolidated Papers, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 30, issued a complaint on May 30, 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 and 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, since at least on or about August 31, 1978, the Union has been rec- ognized as the exclusive collective-bargaining rep- resentative of certain of Respondent's employees.- On January 8, the Regional Director issued a Deci- sion and Order Granting Clarification of Bargain- ing Unit and, on January 15, a Supplemental Deci- sion and Order Granting Clarification of Bargain- ing Unit in Case 30-UC-1533 to include six cus- tomer service representatives employed by Re- All datesl herein aret i 1980 unles' otherwise ndicated : All eligihblc employees engaged in office aid clcrlcal work in he f- fices of Wisconsill Rapids Division Kraft Division, Paperboard Products Division. Main Office, Consoweld Corporation, and Conrsoweld Drisribu- tors. Inc. and any successors or assigns, all of which are located in the city of Wisconsin Rapids, Wood Cunty Wisconsin. Biron Division and Research and I)evelopment Division. which are locaited in the Village of Biron, Wood County. Wisconsin and all eligible employees engaged il office aid clerical work and employees classified as Technicians in the offices of the Wisconsin Riser Division, located i the Village of Whiting and the Township of inwood. Portage County, Wisconsin The term "eligible employees" shall he defined as "hourly paid employees engaged In office and clerical ork " Managerial, supervisory, professional, tech- iical (other than hose cosered by the collectise-hargalining agreement). and confidential employees as defined i the Labor Manlagemen Rela- lions Act of 1947. as amended. are excluded :l Official notlice is taken of the record in the clarification proceeding. Case 30-UC 153. as the term "record" i defined i Secs 102 68 and 102 69 (g) of the Board's Rules aid Regulations, Series 8, as amended See LTV Eleitroyvremns. Inc.. 166 NLRB 938 (1967), enfd 388 2d 683 14th Cir 1968) Go/lden Age B'evruge C'o, 167 NLRB 151 (1967), cnfd 415 F2d 26 (51h Cir 19691 lnertpe Co. v Penellh. 269 Supp 573 (ID CVa 1967) Iillhrtt (orp. 164 NR B 378 (1907). enfd 397 F 2d 91 (71h Cir. I19b81 Sec 9(d) of the NLRA as amended On March 5, the Board deneld Resprndenl's request fr rex icvs of the Regional I)irector's Decision and O)rder and Supplement;al I)ecsiilon and Order spondent at its Wisconsin Rapids, Wisconsin, loca- tion. The complaint further alleges that, commenc- ing on or about March 25, 4 and at all times thereaf- ter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative of the em- ployees in the unit as clarified, although the Union has requested and is requesting it to do so. On June 6, Respondent filed its answer to the complaint ad- mitting in part, and denying in part, the allegations in the complaint. On June 23, the six customer service representatives, by their attorney, filed with the Regional Director a "Motion To Intervene" in the instant case. Thereafter, on June 27, the Acting Regional Director filed an order referring the Motion To Intervene to the Board for determina- tion. Oti June 27, counsel for the General Counsel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 9, 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 filed a re- sponse to the Notice To Show Cause and a state- ment in support of the six employees' Motion To Intervene, and the Charging Party filed a brief in support of the Motion for Summary Judgment and in opposition to the Motion To Intervene. Subse- quently, in a letter dated July 31, the Board noti- fied the six customer service representatives, through their attorney, of the opportunity to file a response to the Notice To Show Cause. No such response has been filed. 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 contends that the Board erroneously clarified the unit to in- clude the six customer service representatives. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. 5 ' he complaint inadverienly refers to March 29 rather than March 25 as the date upon wlhich Respoidenil refused to bargain ()On May 5, the six custoler service rerresenltalves filed a civil lactlon in lti It lnted States District Court o Ihe W'esler ll )istrict of Wisconi)n, seeking iiJullctlie relief frori the Iloard's action i1 lariflng them ino the eXsiilg hargaining uit (Sundru .. -l/ln. ebhrah ( hu,,le. (eruld (i ('lork. (eiorie /E 11idn,,irnih ( -itndr,* OluriA. und t Duid anrldr (C ntlinued 253 NLRB No. 34 283 )ELCISIONS OF NATIONAL L.ABOR RELATIONS BO()ARD Review of the record, including that in the un- derlying unit clarification proceeding, shows that, following a hearing, the Regional Director for Region 30 issued a Decision and Order on January 8 and a Supplemental Decision and Order on Janu- ary 15, finding that Respondent's six customer service representatives are an accretion to the exist- ing unit represented by the Union. Thereafter, Re- spondent filed timely requests for review of the Re- gional Director's decisions. On March 5. by tele- gram, the Board denie Respondent's requests for review. Further, on March 20, the Board tele- graphically denied Respondent's "Request for Re- consideration of Denial of Request for Review," which had been filed on March 7. Under the provi- sions of Section 102.67(b) of the Board's Rules and Regulations, Series 8, as amended, denial of a re- quest for review constitutes an affirmance of the Regional Director's action and also precludes reliti- gating any such issues in any related unfair labor practice proceeding. Respondent now claims that the six employees should not be included in the bargaining unit on the grounds, inter lia, that: (1) they are managerial eniployees: (2) they do not desire inclusion in the unit; and (3) they are ex- cluded by the description of the bargaining unit in the applicable collective-bargaining agreement. These contentions were fully considered and re- jected in the underlying clarification proceeding. 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." 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. Z(rIt N I R I , N 8N(1 C 199) As Triold prcLiously, the iix Cmrply - eS h.l Ito.l, Cd tO I l rl[ lillt' I I bis cile oa the gro iund tihai they are te erlplo ee%, ,khwIsu rpreenrll;itiol by tilt I olin contlllS lt. tile hbsis of tile iltalrlt Ullflair labor practice comllplailll, and thereforce tit (dispositioll of1 Ih, case Iil, "linpan or ilpede Ihler ability to protecl their llteresct W hcrhy dcll thtC Motion lio Intcrlec The Ihroild is of the pillniot thal there is lno basis I{r permittillg the nlplhyict e l, It lelrelc, and thall rtllilg tIIo pernlllt sl' h irtcrtventito l ould 11ol prejudice helil tderit.; district court sluit, which i ill h decided upon its oiux i ilerit, e et I'St tllireli I'hw (a, ( o. N. R B.3 13 U S 146, 162 ( 1411 Rules iand Rgulations of ce Boardl. Scs 10)2 7(f) aMid 12 19(cl On the basis of the entire record, the Board makes the following: FINI)IN(iS 01 FAC'I I. I H BUSINLSS 01 RSPONI)l NI' Respondent, a Wisconsin corporation, with head- quarters and a production facility in Wisconsin Rapids, Wisconsin, is engaged in the production and distribution of paper products. During the past calendar year, Respondent, in the course and con- duct of its business operations, sold and shipped from its Wisconsin Rapids, Wisconsin, facility products, goods, and materials valued in excess of $50.000 directly to points located outside the State of Wisconsin. 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. 'I H lABOR OR(;ANIZATION INVOI.VLD) Office & Professional Employees International Union, Local 5, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IIl. TI'lE NIAIR I AOR PRACTICRS A. The Unit, and the Union s Representative Sltulus 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 eligible employees engaged in office and clerical work, including customer service rep- resentatives, in the offices of Wisconsin Rapids Division, Kraft Division, Paperboard Products Division, Main Office, Consoweld Corpora- tion, and Consoweld Distributors, Inc., and any successors or assigns, all of which are lo- cated in the city of Wisconsin Rapids, Wood County, Wisconsin; Biron Division and Re- search and Development Division, which are located in the Village of Biron, Wood County, Wisconsin; and all eligible employees engaged in office and clerical work and employees clas- sified as Technicians in the offices of the Wis- consin River Division, located in the Village of Whiting and the Township of Linwood, Portage County, Wisconsin. The term "eligible employees" shall be defined as "hourly paid employees engaged in office and clerical work." Managerial. supervisory, professional, 284 )NS()I II)AT'II) APIRS, INC technical (other than those covered by the col- lective-hargaining agreement), and confidential employees as defined in the Labor Manage- ment Relations Act of 1947, as amended, are excluded. The Union has been the collective-bargaining representative of all the employees in said unit, and the Union continues to be such exclusive repre- sentative, within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Rcfusal Commencing on or about January 18, 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 March 25, 1980, and continu- ing 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 March 25, 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 i unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. TEi EFIECT OF THE UNFAIR ABOR PRACTICES UP'ON COMMER(CI 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 RMED l)Y 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 the employees in the appropriate unit, including the six customer service representatives. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI tSIONS OlF L.Xw 1. Consolidated Papers, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office & Professional Employees International Union, Local 95, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All eligible employees engaged in office and clerical work, including customer service repre- sentatives, in the offices of Wisconsin Rapids Divi- sion, Kraft Division, Paperboard Products Divi- sion, Main Office, Consoweld Corporation, and Consoweld Distributors, Inc., and any successors or assigns, all of which are located in the city of Wisconsin Rapids, Wood County, Wisconsin; Biron Division and Research and Development Division, which are located in the Village of Biron, Wood County, Wisconsin: and alleligible emplosees en- gaged in office and clerical work and employees classified as Technicians in the offices of the W'is- consin River Division, located in the Village of Whiting and the Township of Linwood. Portage County, Wisconsin. constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The term "eli- gible employees" shall he defined as "hourly paid employees engaged in office and clerical work." Managerial, supervisory, professional, technical (other than those covered b the collective-bar- gaining agreement), and confidential employees as defined in the Labor Management Relations Act of 1947. as amended, are excluded. 4. Since January 8, 1980, the above-named labor organization has been and now is the exclusi,~e rep- resentative of all employees in the aforesaid appro- priate unit as it has been clarified, for the purpose of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By refusing on or about March 25, 1980. and at all times thereafter, to bargain collectively ith the above-named labor organization as the exclu- sive 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, Respond- ent 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 ini and is engaging in unfair labor practices within the mricaning of Section 8(a)(1) of the Act. 2S I)LCISI()NS ()F NATIONAL. I.ABOR RELATIONS BOARI) 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, Consolidated Papers, Inc., Wisconsin Rapids, Wis- consin, 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 Office & Profes- sional Employees, International Union, Local 95, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All eligible employees engaged in office and clerical work, including customer service rep- resentatives, in the offices of Wisconsin Rapids Division, Kraft Division, Paperboard Products Division, Main Office, Consoweld Corpora- tion, and Consoweld Distributors, Inc., and any successors or assigns, all of which are lo- cated in the city of Wisconsin Rapids, Wood County, Wisconsin; Biron Division and Re- search and Development Division, which are located in the Village of Biron, Wood County, Wisconsin; and all eligible employees engaged in office and clerical work and employees clas- sified as Technicians in the offices of the Wis- consin River Division, located in the Village of Whiting and the Township of Linwood, Portage County, Wisconsin. The term "eligible employees" shall be defined as "hourly paid employees engaged in office and clerical work." Managerial, supervisory, professional, technical (other than those covered by the col- lective-bargaining agreement), and confidential employees as defined in the Labor Manage- ment Relations Act of 1947, as amended, are excluded. (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 the 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 its Wisconsin Rapids, Wisconsin, fa- cility copies of the attached notice marked "Ap- pendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 30. after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt 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 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 In he event that his Order is enforced by a Judgment of a United Slates Court of Appeals, the word' in the notice reading 'Posled by Order of the National l.ahor Relations Board" shall read Posted Pursu- ant o a Judgment of the United Slates Court of Appeals nforrciig an Order of Ihe National Labor Relations Board" APPENDIX NOrTICE TO EMPOYEES PosTFnD BY ORDER OF THF NATIONAL LABOR REILATIONS BOARD An Agency of the United States Government WI: W.L N refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Office & Professional Employees Interna- tional Union, Local 95, AFL-CIO, as the ex- clusive representative of the employees in the bargaining unit described below. WI WIl.L Nor 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 wir.L, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all the employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All eligible employees engaged in office and clerical work, including customer service representatives, in the offices of Wisconsin Rapids Division, Kraft Division, Paperboard Products Division, Main Office, Consoweld Corporation, and Consoweld Distributors, C()NS(OI.II)A'II) PAPI'IRS, INC Inc., and any successors or assigns, all of which are located in the city of Wisconsin Rapids, Wood County, Wisconsin; Biron Di- vision and Research and Development Divi- sion, which are located in the Village of Biron, Wood County, Wisconsin; and all eli- gible employees engaged i office and clcri- cal work and employees classified as Tech- nicians in the offices of the Wisconsin River Division, located in the Village of Whiting and the Township of Linwood, Portage County, Wisconsin. The term "eligible em- ployeces" shall be defined as "hourly paid employees engaged in office and clerical work." Managerial, supervisory, profession- al, technical (other than those covered by the collective-bargaining agreement), allnd confidential employees as defined in tlhe L.abor Management Relations Act of 1947, as amended, are excluded. CONSOI IDA'I 1I) PAPIERS, IN(. 2S7