Waycross Molded Products, Inc.

WAYCROSS O()LDED PROI)ULCTS. INC 727 Waycross Molded Products, Inc. and United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO. Case 10-CA-15737 August 27, 1980 DECISION AND ORDER BY MiEMBI.RS JNKINS, PENELIO, ANI) TRUESI)AI. F Upon a charge filed on April 18, 1980, by United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, herein called the Union, and duly served on Waycross Molded Products, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 10, issued a complaint and notice of hearing on May 6, 1980, against Re- spondent, 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 on March 13, 1980, following a Board election in Case 10-RC- 11877, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about January 24, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On May 14, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On June 20, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 24, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent I Official notice is taken of the record in the representalionl proceed- ing. Case 0 RC 11877. as the term "record" is defined in Secs 102 68 and 102.6 9(g} of the Board's Rules and Regulations, Series 8, as amended See LTV Elecrrosystem. Inc.. 166 NL.RH 938 (1967). end 388 F.2d 683 (4th Cir 1968). Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir 1969); Intertevpe Co, s Pencel, 269 FSupp 573 (DCVa 1967); Follett Corp.. 164 NLRB 3.78 (1967). enfd 3'17 F 2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA. as amended 251 NLRB No. 93 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 Respondent's answer, in substance, attacks the validity of the Union's certification on the basis of its objections to the election in the underlying rep- resentation proceeding. The General Counsel argues that all material issues have previously been decided. We agree with the General Counsel. A review of the record herein, including the record in Case 10-RC-11877, discloses that on Oc- tober 18, 1979, pursuant to a Stipulation for Certifi- cation Upon Consent Election, an election was held among the employees in the stipulated unit. The tally of ballots showed that, of approximately 233 eligible voters, 180 cast valid ballots in favor of, and 13 against, the Union; there were two chal- lenged ballots, an insufficient number to affect the results. Respondent filed timely objections to the election. Following an investigation, the Regional Director issued a report on December 3, 1979, which recommended overruling the objections, and issuing a certification of representative. Thereafter, Respondent filed exceptions to the Regional Direc- tor's recommendations. On March 13, 1980, the Board adopted the Regional Director's recommen- dations, and certified the Union as the exclusive bargaining representative of the employees in the stipulated unit.3 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.4 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior i In its response to the General Counsel's motion. Respondent moves for summary judgment in its favor In the alternatlie. Respondent moves that the case be remanded for an evidentiary hearing on its objections Respondent's motion is hereby denied, inasmuch as, for reasons stated below, we shall grant the General Counsel's Motion for Summary Judg ment ' The Board initiall. certified the Union on January 14, 1980, because it appeared that no exceptions t he Regional Director's report had been filed within the time provided by the Board's Rule, and Regulatlio,r Ho, ever, on January 23. 1980, the Board resoked the certification after it was discovered that exceptions to the report had been timely filed in the Regional Office, and had been mailed to the Board and to the Union 4 See Pittsburgh Plate Glas¥ Co .V.R.R.., 313 U.S 146, 162 (1941); Rules and Regulations of the Board. Secs 102 67(f) and 102.6 9(c) 728 DIECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Waycross Molded Products, Inc., an Ohio cor- poration, has a place of business in Waycross, Georgia, where it is engaged in the manufacture of floormats. Respondent, in the course and conduct of its business operations during the past calendar year, a representative period, sold and shipped fin- ished products valued in excess of $50,000 directly to customers located outside the State of Georgia. 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 United Rubber, Cork, Linoleum & Plastic Work- ers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111I. 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 employed by Respondent at its Waycross, Georgia, facility, but excluding all office cleri- cal employees, professional employees, techni- cal employees, guards and supervisors as de- fined in the Act. 2. The certification On October 18, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 10, 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 March 13,1980, 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 Respondents Refusal Commencing on or about January 24, 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 26,1980, 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 26, 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. 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- WAYCROSS MOLDED PRODUCTS. INC. 721 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.), cert. denied 379 U.S. 817 (1964); 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: CONCILUSIONS OF LAW 1. Waycross Molded Products, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Waycross, Georgia, facility, but excluding all office clerical employees, professional employees, technical 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 March 13, 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 March 26, 1980, and at all times thereafter, to bargain collectively with 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 in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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, Waycross Molded Products, Inc., Waycross, Geor- gia, 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 & Plastic Workers of America. AFL-CIO, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its Waycross, Georgia, facility, but excluding all office cleri- cal employees, professional employees. techni- cal employees, guards and supervisors as de- fined in the Act. (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 its Waycross, Georgia, facility copies of the attached notice marked "Appendix. "s Copies of said notice, on forms provided by the Regional Director for Region 10, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this I I the ccrnt Ihatl thi, ()rder i enfo rced h, J dglici of ., tI nlted Slates Court of Appeas. the Nkord, in the nollce reading I"P-ied h. ()rder of he Naitllnal I habor Rl.otio , lloail d ,h.dl read " Potcd I'Lirtl Jnl to .a Judglelln oI the Lliled .State, (ort l , Aptpak ftoriir iiil Order of he Natiornal I hor Relatiln loaird 730 DECISIONS OF NATIONAL l.ABOR REL.ATIONS BO()AR) Order, what steps have been taken to comply here- with. APPENDIX NOrict: To EMPLOYEES POSTED) BY ORDER OF: HE NATIONAI. LABOR REI ATIONS BOARD An Agency of the United States Government WE WILL NOI' refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, as the exclu- sive representative of the employees in the bargaining unit described below. WL 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 wit.l., upon request, bargain with the above-named Union, as the exclusive repre- sentative of all 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 production and maintenance employees, employed by us at our Waycross, Georgia, facility, but excluding all office clerical em- ployees, professional employees, technical employees, guards and supervisors as de- fined in the Act. WAYCROSS MOI) DlD PROI)UCIS, INC.