Apex Paper Box Co.

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 1025 (N.L.R.B. 1991)

1025
303 NLRB No. 160
APEX PAPER BOX CO.
1 See Madison Detective Bureau, 250 NLRB 398 (1980); and Allstate Insur-
ance Co., 234 NLRB 193 (1978).
2 See Ken’s Building Supplies, 142 NLRB 235, 237–238 (1963), enfd. 333
F.2d 84 (6th Cir. 1964). See also Sunnyland Refining Co., 250 NLRB 1180,
1181 (1980), enfd. mem. 657 F.2d 1249 (5th Cir. 1981).
Apex Paper Box Company and its subsidiaries
Boxit Corporation, Western Reserve Pack-
aging, Inc., North Coast Box & Container
Corp. and Color Tech Coating & Finishing
Company and Local 170, International Ladies’
Garment Workers’ Union. Case 8–CA–23574
July 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, OVIATT, AND
RAUDABAUGH
On May 28, 1991, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 8–RC–14247. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint, and submitting certain affirma-
tive defenses.
On July 5, 1991, the General Counsel filed a Motion
Summary Judgment. On July 9, 1991, the Board issued
an order transferring the proceeding to the Board and
a Notice to Show Cause why the motion should not be
granted. On July 23, 1991, the Respondent filed a re-
sponse.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to Show
Cause the Respondent admits its refusal to bargain, but
attacks the validity of the certification on the basis of
the Board’s disposition of certain challenged ballots in
the representation proceeding. In addition, the Re-
spondent in its answer asserts as affirmative defenses
that the underlying charge filed by the Union in the in-
stant proceeding is barred by the doctrine of laches and
the applicable statute of limitations.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also reject the Respondent’s contention that the
underlying charge in this proceeding is barred by the
doctrine of laches and/or the 10(b) 6-month limitations
period. The Union’s charge was filed on April 29,
1991, approximately 1 week after the Respondent ad-
mittedly refused to bargain. Although it is true that the
Union had been certified by the Regional Director over
10 months prior thereto, and that the Union might have
demanded recognition and bargaining immediately
thereafter notwithstanding the Respondent’s pending
Request for Review,1 it was under no obligation to do
so. The Union made its demand within the initial cer-
tification year, and absent unusual circumstances not
presented here, the Respondent was therefore required
to honor that request and commence bargaining.2 By
failing to do so, the Respondent violated Section
8(a)(5) of the Act.
Accordingly, we grant the Motion for Summary
Judgment. On the entire record, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, with an office
and place of business in Cleveland, Ohio, has been en-
gaged in the manufacture of retail packaging materials.
The Respondent annually sells and ships from its
Cleveland, Ohio facility products, goods, and materials
valued in excess of $50,000 directly to points outside
the State of Ohio. We find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Union is
a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held March 30, 1990, the
Union was certified by the Regional Director on June
22, 1990, as the collective-bargaining representative of
the employees in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees at the Employer’s fa-
cilities located at Apex Paper Company, 5601
Walworth Avenue, Cleveland, Ohio; 9801
Walford Avenue, Cleveland, Ohio; and 3301
Monroe Avenue, Cleveland, Ohio 44113; Boxit
Corporation, 5555 Walworth Avenue, Cleveland,
Ohio; Western Reserve Packaging, Inc., 3305
West 65th Street, Cleveland, Ohio; North Coast
Box & Container Corporation, 8401 Almira Ave-
nue, Cleveland, Ohio; and Color Tech Coating &
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The Board (Members Cracraft and Devaney dissenting) affirmed the Re-
gional Director’s Supplemental Decision and Certification of Representative by
Order dated March 15, 1991. See 302 NLRB 67.
4 If 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
Finishing Company, 12500 Berea Road, Cleve-
land, Ohio, excluding all office clerical employ-
ees, all truck drivers and all professional employ-
ees, guards and supervisors as defined in the Act
and all other employees.3
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since on or about April 18, 1991, the Union has re-
quested the Respondent to bargain, and, since on or
about April 23, 1991, the Respondent has refused. We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after April 23, 1991, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Apex Paper Box Company and its sub-
sidiaries Boxit Corporation, Western Reserve Pack-
aging, Inc., North Coast Box & Container Corp. and
Color Tech Coating & Finishing Company, Cleveland,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 170, International
Ladies’ Garment Workers’ Union, as the exclusive bar-
gaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time production
and maintenance employees at the Employer’s fa-
cilities located at Apex Paper Company, 5601
Walworth Avenue, Cleveland, Ohio; 9801
Walford Avenue, Cleveland, Ohio; and 3301
Monroe Avenue, Cleveland, Ohio 44113; Boxit
Corporation, 5555 Walworth Avenue, Cleveland,
Ohio; Western Reserve Packaging, Inc., 3305
West 65th Street, Cleveland, Ohio; North Coast
Box & Container Corporation, 8401 Almira Ave-
nue, Cleveland, Ohio; and Color Tech Coating &
Finishing Company, 12500 Berea Road, Cleve-
land, Ohio, excluding all office clerical employ-
ees, all truck drivers and all professional employ-
ees, guards and supervisors as defined in the Act
and all other employees.
(b) Post at its facility in Cleveland, Ohio, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 8, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBERS CRACRAFT and DEVANEY, dissenting.
For the reasons stated in our separate dissenting
opinions in the underlying representation case (302
NLRB 67 (1991)), we disagree with the majority’s dis-
position of the challenged ballots in that proceeding.
Accordingly, contrary to the majority, we would not
grant the General Counsel’s Motion for Summary
Judgment in the instant proceeding, and we dissent
1027APEX PAPER BOX CO.
from our colleagues’ finding of a violation of Section
8(a)(5).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local 170,
International Ladies’ Garment Workers’ Union as the
exclusive representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time production
and maintenance employees at the Employer’s fa-
cilities located at Apex Paper Company, 5601
Walworth Avenue, Cleveland, Ohio; 9801
Walford Avenue, Cleveland, Ohio; and 3301
Monroe Avenue, Cleveland, Ohio 44113; Boxit
Corporation, 5555 Walworth Avenue, Cleveland,
Ohio; Western Reserve Packaging, Inc., 3305
West 65th Street, Cleveland, Ohio; North Coast
Box & Container Corporation, 8401 Almira Ave-
nue, Cleveland, Ohio; and Color Tech Coating &
Finishing Company, 12500 Berea Road, Cleve-
land, Ohio, excluding all office clerical employ-
ees, all truck drivers and all professional employ-
ees, guards and supervisors as defined in the Act
and all other employees.
APEX PAPER BOX AND ITS SUBSIDIARIES
BOXIT CORPORATION, WESTERN RE-
SERVE PACKAGING, INC., NORTH COAST
BOX & CONTAINER CORP., AND COLOR
TECH COATING & FINISHING COMPANY