Bisonite Co.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1045 (N.L.R.B. 1977)

BISONITE COMPANY
Bisonite Company, Inc. and Oil, Chemical and Atomic
Workers International Union, AFL-CIO-CLC.
Case 3-CA-8004
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Upon a charge filed on June 20, 1977, by Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, herein called the Union, and duly served
on Bisonite Company, Inc., herein called the Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 3, issued a complaint on June 30, 1977,
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, 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 June 7, 1977,
following a Board election in Case 3-RC-6806 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that commenc-
ing on or about June 17, 1977, and at all times
thereafter, 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 July 11, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On July 19, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Respondent, by letter of July 21, 1977,
indicated that it would not oppose the General
Counsel's Motion for Summary Judgment.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I Official notice is taken of the record in the representation proceeding.
Case 3-RC4806. as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTIV Elecrocrstrems. Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4.
1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5 1969): Inrerripe Co. v. Penello. 269 F.Supp. 573 (D.C.Va.. 1967);
Folletr Corp.. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7. 1968):; Sec.
9(d) of the NLRA. as amended.
2 In its letter of July 21, 1977, the Respondent through its attorney
notified the Board that it was not opposing the General Counsel's Motion to
TIransfer and for Summary Judgment inasmuch as it was Respondent's
intention to seek judicial review by the court of appeals of the Board's
determination concerning the underlying representation case.
231 NLRB No. 174
National Labor Relations Board has delegated its
authority 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, Respondent denies
so much of the complaint that avers that the election
and certification were proper and that the certifica-
tion of the Union was issued without proper
investigation of and without a hearing on Respon-
dent's objections to the election.3 In the Motion for
Summary Judgment, the General Counsel submits
that Respondent's answer does not allege the
existence of newly discovered evidence which would
justify relitigation of the issues raised, and that,
therefore, the Motion for Summary Judgment should
be granted.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.4
All issues raised by the Respondent in this
proceeding 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
I. THE BUSINESS OF THE RESPONDENT
Bisonite Company, Inc., a New York corporation,
at all times material herein has distributed and sold
paint and related products in the State of New York.
3 A review of the record herein. including that in Case 3-RC-6806.
discloses that the election was conducted pursuant to a Stipulation for
Certification Upon Consent Election. The Union prevailed by a rotle of 15
to 13. Following the election Respondent filed timely objections alleging
"gross misconduct of a person or persons, presently unknown, which
affected the voting.... After an investigation, the Regional Director for
Region 3 issued a report on objections in which he recommended the
objections be overruled. Respondent took timely exceptions thereto. On
June 7, 1977, the Board issued its Decision and Certification of Representa-
tive in which it stated that Respondent's exceptions raised no issues
warranting reversal of the Regional Director or requiring a hearing.
4 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board. Secs. 102 67(f0 and 102.69(c).
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal office and place of business of Bisonite
Company, Inc., is at 2250 Military Road, Tonawan-
da. New York. During the past 12 months, Respon-
dent, in the course and conduct of its business
operations, manufactured, sold, and distributed at
said Tonawanda, New York, plant products valued
in excess of $50,000, of which products valued in
excess of $50,000 were shipped from said plant
directly to States of the United States other than the
State of New York.
We find, on the basis of the foregoing, that
Respondent 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.
11. THE L.ABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International
Union, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees em-
ployed by the Employer at its 2250 Military
Road, Tonawanda, New York, facility; excluding
all other clerical employees, professional employ-
ees, technical employees, guards, and supervisors
as defined in the Act.
2. The certification
On January 14, 1977, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 3, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 7, 1977, 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 Respondent's
Refusal
Commencing on or about June 13, 1977, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about June 17, 1977, and 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 collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since June 13, 1977, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and, by such refusal, Respondent
has engaged in and is engaging in unfair labor
practices 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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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 Construction 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:
1046
BISONITE COMPANY
CONCLUSIONS OF LAW
1. Bisonite Company, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO-CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Employer at its 2250 Military Road,
Tonawanda, New York, facility; excluding all office
clerical employees, professional employees, technical
employees, guards, 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 June 7, 1977, 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 purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about June 17, 1977, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
meaning 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
Relations Board hereby orders that the Respondent,
Bisonite Company, Inc., Tonawanda, New York, 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 Oil, Chemical and
Atomic Workers International Union, AFL-CIO-
CLC, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees em-
ployed by the Employer at its 2250 Military
Road, Tonawanda, New York, facility; excluding
all office clerical employees, professional employ-
ees, technical employees, guards, and supervisors
as defined in the Act.
(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 Tonawanda, New York, facility
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 3, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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."
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Oil,
Chemical and Atomic Workers International
Union, AFL-CIO-CLC, as the exclusive repre-
sentative of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive 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 agree-
ment. The bargaining unit is:
All production and maintenance employees
employed by the Employer at its 2250
Military Road, Tonawanda, New York,
facility; excluding all office clerical employ-
ees, professional employees, technical em-
ployees, guards, and supervisors as defined
in the Act.
BISONITE COMPANY, INC.
1048