Benner Glass Co.

National Labor Relations Board - Board Decisions

Jul 23, 1974

212 N.L.R.B. 511 (N.L.R.B. 1974)

BENNER GLASS CO. 511
Benner Glass Co. and Allied Services Division, Broth-
erhood of Railway , Airline and Steamship Clerks,
Freight Handlers, Express and Station Employees,
AFL-CIO. Case 12-CA-6313
July 23, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
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. Respondent 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 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:
Upon a charge filed on March 21, 1974, by Allied
Services Division, Brotherhood of Railway, Airline
and Steamship Clerks, Freight Handlers, Express and
Station Employees, AFL-CIO, herein called the
Union, and duly served on Benner Glass Co., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 12, issued a complaint on April 4,
1974, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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
Administrative Law Judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on March 7, 1974,
following a Board election in Case 12-RC-4298 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about March 19, 1974, 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, although the
Union has requested and is requesting it to do so. On
April 12, 1974, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On April 22, 1974, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Previously, on April 17, 1974, the
Charging Party had filed a Motion for Summary
Judgment? Subsequently, on May 6, 1974, the Board
i Official notice is taken of the record in the representation proceeding.
Case 12-RC-4298, as the term "record" is defined in Secs. 102 68 and 102
.69(f) of the Board's Rules and Regulations, Series 8 , as amended See LTV
Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C A 4, 1968).
Golden AgeBeverage Co, 167 NLRB 151, 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, enfd. 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA.
2 In view of our determination herein , it is unnecessary to rule on the
Union's Motion for Summary Judgment
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, the Respondent admits the
factual allegations of the complaint, but denies the
validity of the certification of the Union in the under-
lying representation case on the grounds that the
Board erred in its rulings on its objections to the elec-
tion, and by not granting it an evidentiary hearing on
one of its objections.
Review of the record herein, including the record in
Case 12-RC-4298, indicates an election was conduct-
ed pursuant to a Stipulation for Certification Upon
Consent Election on April 6, 1973, which resulted in
a 26-to-21 vote in favor of the Union, with 2 chal-
lenged ballots. Respondent filed timely objections to
conduct affecting the results of the election, alleging
in substance that the Union had engaged in threaten-
ing and coercive conduct which destroyed the labora-
tory conditions for the election, and had coercively
offered to waive initiation fees.
After an administrative investigation, the Regional
Director issued his Report and Recommendations on
Objections on July 20, 1973, in which he found no
concrete evidence of the coercive and threatening
conduct by the Union, and upheld the propriety of the
Union's waiver of initiation fees. Respondent filed
timely exceptions to this report, asserting that factual
questions had been raised which required a hearing.
The Board, on October 23, 1973, issued a Decision
and Order directing a Hearing in which it adopted the
Regional Director's recommendation regarding the
propriety of the waiver of initiation fees, and ordered
a hearing on the alleged threats and coercive conduct
by the Union. Pursuant to this Order, a hearing was
held on November 8 and 12, 1973, at which all parties
were present and were given the opportunity to pre-
sent evidence. The Hearing Officer, in his report of
December 21, 1973, found that the objection was in-
sufficient to raise material or substantial issues affect-
ing the results of the election, and recommended that
it be overruled.
In the interim, Respondent filed a motion for re-
212 NLRB No. 69
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration of the Board's Decision and Order in
light of the decision of the U.S. Supreme Court in
N.L.R.B. v. Savair Manufacturing Co, 414 U.S. 270
(1973). Following the issuance of the Hearing
Officer's report, the Board, on March 7, 1974, issued
a Supplemental Decision and Certification of Repre-
sentative, adopting the Hearing Officer's findings,
conclusions, and recommendations, denying the
Respondent's motion for reconsideration as not rais-
ing substantial or material issues under Board prece-
dent even as modified by Savair,3 and certifying the
Union.
It thus appears that Respondent is again attempting
to raise in this proceeding issues litigated at length in
the underlying representation case, resolved adversely
to Respondent by the Board after a hearing.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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."
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discovered
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 the 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
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation. with its princi-
pal office and place of business in Jacksonville, Flori-
da, where it is engaged in the operation of a glass
products factory. Respondent annually - receives
goods and materials valued in excess of $50,000 di-
rectly from suppliers located outside the State of Flor-
ida. Respondent annually sells and ships products
valued in excess of $50,000 directly to customers lo-
cated outside the State of Florida.
We find, on the basis of the foregoing, that Respon-
3 See Con-Pac, Inc, 210 NLRB 466 (1974), Irwindale Division , Lau Indus-
tries, a Division of Phillips Industries, Inc, 210 NLRB 182 (1974)
4 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)
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
11 THE LABOR ORGANIZATION INVOLVED
Allied Services Division , Brotherhood of Railway,
Airline and Steamship Clerks, Freight Handlers, Ex-
press and Station Employees , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses-within the meaning of Section 9(b) of the Act:
All production and maintenance employees
employed by the Respondent at its factory locat-
ed at 5329 Powers Avenue, Jacksonville, Florida;
excluding all clerical employees, guards, profes-
sional employees, and supervisors as defined in
the Act.
2. The certification
On April 6, 1973, a majority of the employees-of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 12, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 7, 1974, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request,To Bargain and Respondents Refusal
Commencing onior about March, 14, '1974, and at
all times thereafter, the Union has requested the Re-
spondent,to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
' employees in the above-described unit. Commencing
on or about March 19, 1974, and continuing at all
times thereafter to date, the Respondent has refused,
and continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
BENNER GLASS CO. 513
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since March 19, 1974, and at all tunes thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor practic-
es 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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate 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 Con-
struction 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
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees em-
ployed by the Respondent at its factory located at
5329 Powers Avenue, Jacksonville, 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 March 7, 1974,, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 19, 1974, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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,, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 mean-
ing of Section 8(a)(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 Rela-
tions Board hereby orders that Respondent, Benner
Glass Co., Jacksonville, Florida, 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 condi-
tions of employment, with Allied Services Division,
Brotherhood of Railway, Airline and Steamship
Clerks, Freight Handlers, Express and Station Em-
ployees, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appropriate
unit:
1. Benner Glass Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Allied Services Division, Brotherhood of Rail-
way, Airline and Steamship Clerks, Freight Handlers,
Express and Station Employees, AFL-CIO, is a labor
All production and maintenance employees
employed by the Respondent at its factory locat-
ed at 5329 Powers Avenue, Jacksonville, Florida,
excluding all clerical employees, guards, profes-
sional employees, and supervisors as defined in
the Act.
514 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 factory at 5329 Powers Avenue, Jack-
sonville, Florida, copies of the attached notice
marked "Appendix." 5 Copies of said notice, on forms
provided by the Regional Director for Region 12 after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 "
Services Division, Brotherhood of Railway, Air-
line and Steamship Clerks, Freight Handlers, Ex-
press and Station Employees, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner in-
terfere 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 representative 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 agreement. The
bargaining unit is:
All production and maintenance employees
employed by the Employer at its factory locat-
ed at 5329 Powers Avenue, Jacksonville, Flori-
da; excluding all clerical employees, guards,
professional employees, and supervisors as de-
fined in the Act.
Dated By
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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Allied
BENNER GLASS CO
(Employer)
(Representative ) (Title)
This i's an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 706, Federal Office Building,
500 Zack Street, P.O. Box 3322, Tampa, Florida 336
02, Telephone 813-228-2641.