Asbury Graphite Mills, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1986

282 N.L.R.B. 448 (N.L.R.B. 1986)

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Asbury Graphite Mills, Inc. and International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Teamsters
Local No. 538 . Case 6-CA-19315
15 December 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
Upon a charge filed by the Union 10 July 1986,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 25 July 1986 against
the Company, the Respondent; alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint alleges that on 5 June 1986, fol-
lowing a Board election in Case 6-RC-9667, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs . 102.68 and 102.69 (g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel,
265 NLRB 343 (1982).) The complaint further al-
leges that since 30 June 1986, the Company has re-
fused to bargain with the Union. On 4 August 1986
the Company filed its answer admitting in part and
denying in part the allegations in the complaint.
On 29 August 1986 the General Counsel filed a
Motion for Summary Judgment. On 3 September
1986 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Company filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Company's answer admits that on 5 June
1986 the Regional Director certified the Union as
the exclusive bargaining representative of the em-
ployees in the bargaining unit. However, the Com-
pany alleges that the Regional Director erred in
conducting the 23 May 1986 election. It contends
that the petitioned-for unit was not an appropriate
unit due to the lack of a substantial and representa-
tive complement of employees. In this regard, the
Company alleges that only half of the current em-
ployees were engaged in production and mainte-
nance work and the remainder were engaged in
construction work at the time of the Regional Di-
rector's Decision and Direction of Election.
The General Counsel argues that all material
issues have been decided previously.' We agree
with the General Counsel.
The record, including the record in Case 6-RC-
9667, reveals that an election was held 23 May
1986. The tally of ballots shows that seven votes
were cast for the Union, six votes were cast against
the Union; there were no challenged ballots. As no
objections to the election were .filed, the Regional
Director issued the certification of representative
on 5 June 1986.
On 19 June 1986 the Union requested the Com-
pany to bargain . Since about 30 June 1986, and
more particularly, by letter dated 1 July 1986 the
Company declined to recognize the Union so as to
"test the validity" of the certification of representa-
tive.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence,2 nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. We therefore find that the Company
has not raised any issue that is properly litigable in
this unfair labor practice proceeding. Accordingly,
we grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a New Jersey corporation, is en-
gaged in the production and nonretail sale and dis-
tribution of graphite and related products at its fa-
' A request for review of the Regional Director's Decision and Direc-
tion of Election was filed on 29 April 1986 by the Company and was
denied by the Board on 23 May 1986.
2 The Respondent, in its response to the Notice to Show Cause, assert-
ed that it has hired four production and maintenance employees since the
election . Assuming arguendo the validity of the Respondent's assertion,
this subsequent hiring of employees does not create an issue that warrants
a hearing . In his Decision and Direction of Election , the Regional Direc-
tor considered the possibility that the Respondent would hire more em-
ployees. Nonetheless , the Regional Director found that a substantial and
representative complement of employees was employed by the Respond-
ent at the tune of the issuance of the Decision and Direction of Election.
282 NLRB No. 67
ASBURY GRAPHITE MILLS 449
cility in Kittanning; Pennsylvania, Where it a
lly purchases and receives products, goods, and ma-
terials valued in excess of $50,000 directly from
points outside the Commonwealth of Pennsylvania.
We find that the Company 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 or-
ganization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 23 May 1986, the
Union was certified 5 June 1986 as the collective-
bargaining, representative of the employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance employees employed by the
Employer at its Kittanning, Pennsylvania, fa-
cility; excluding all office clerical employees,
and guards, professional employees and super-
visors as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 19 June 1986 the Union has requested the
Company to bargain, and since 30 June 1986 the
Company has refused. We find that this refusal
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 30 June 1986 to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, the Company has engaged in unfair labor
practices affecting 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
Section 8(a)(5) and (1) of the Act, we will order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we will 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),
60d.-328, F.2d 6110 (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, The Asbury Graphite Mills, Inc.,
Kittanning, Pennsylvania, ' its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Teamsters Local No. 538,
as the exclusive bargaining representative of the
employees in the bargaining unit.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-,
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and, conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time production
and maintenance employees employed by the
Employer at, its Kittanning, Pennsylvania, fa-
cility; excluding all office clerical employees,
and guards, professional employees and super-
visors as defined in the Act.
(b) Post at its facility in Kittanning, Pennsylva-
nia, copies of the, attached notice marked "Appen-
dix."s Copies of the notice, on forms provided ' by
the Regional Director for Region 6, after being
signed by the Respondent's authorized representa-
tive, shall 'be posted by the Respondent immediate-
ly 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 Respondent
to ensure that the notices are not altered, defaced,
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 Respondent has taken to comply.
' 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 Nation-
al 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 "
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Teamsters
Local No. 538, as the exclusive representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise 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 employed by the
Employer at its Kittanning, Pennsylvania, fa-
cility; excluding all office clerical employees,
and guards , professional employees and super-
visors as defined in the Act.
THE ASBURY GRAPHITE MILLS, INC.