Carter-Glogau Laboratories, Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1982

265 N.L.R.B. 116 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carter-Glogau Laboratories, Inc. and Construction,
Production & Maintenance Laborers' Local
Union 383, Laborers' International Union of
North America, AFL-CIO. Case 28-CA-6912
October 15, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on May 3, 1982, by Con-
struction, Production & Maintenance Laborers'
Local Union 383, Laborers' International Union of
North America, AFL-CIO, herein called the
Union, and duly served on Carter-Glogau Labora-
tories, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 28, issued a com-
plaint on May 13, 1982, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
the complaint and notice of hearing before an ad-
ministrative 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 April 9,
1982, following a Board election in Case 28-RD-
379, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about April 28, 1982, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On June 4, 1982, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint.
On July 30, 1982, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 9, 1982,
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 representation proceed-
ing, Case 28-RD-379, 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
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. -v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
265 NLRB No. 17
thereafter filed a response to the 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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and brief in oppo-
sition to the General Counsel's Motion for Sum-
mary Judgment, Respondent, in substance, attacks
the validity of the certification based on its objec-
tions to the election and on its assertion that the
ballots of certain economic strikers should not have
been counted, contends that its refusal to bargain
was based on a good-faith doubt of the Union's ma-
jority status, and further argues that the Board's
failure to explicate its reasons for denying its re-
quest for review of the Regional Director's Supple-
mental Report, and its motions for reconsideration,
amounted to a denial of due process.
A review of the record herein, including the
record in Case 28-RD-379, reveals that pursuant
to a Decision and Direction of Election, an elec-
tion was conducted on July 1, 1981, which resulted
in a 65-to-55 vote against the Union, with 28 deter-
minative challenged ballots remaining. 2 The Em-
ployer and the Union timely filed objections to the
election. In its objections, the Employer argued
that the Union made certain materialmisrepresenta-
tions which affected the outcome of the election.
The Union, on the other hand, asserted in its objec-
tions that the striking employees, unlike the non-
striking employees, were required to vote under
unfavorable conditions and further alleged that a
supervisor had been present at the polls during the
election. A hearing on the challenged ballots and
objections to the election was conducted between
July 27 and 30, 1981, after which the Hearing Offi-
cer, on August 21, 1981, issued his report recom-
mending that all objections and challenges to bal-
lots be overruled, that the 28 ballots be opened and
counted, and that the appropriate certification be
issued. The Employer and the Union thereafter
filed exceptions to the Hearing Officer's report.
On September 18, 1981, the Regional Director
issued a Supplemental Decision and Order on De-
terminative Challenged Ballots and Objections to
Conduct Affecting the Results of the Election in
I The Employer challenged the ballots of 24 voters on the grounds
that they had abandoned their employment status by obtaining employ-
ment elsewhere. It subsequently withdrew the challenge to one of these
ballots. The Union challenged the ballots of four voters on the ground
that they had voted at an incorrect polling place.
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CARTER-GLOGAU LABORATORIES, INC.
which he adopted the Hearing Officer's recommen-
dation that all objections be overruled and that the
Union's challenges to ballots also be overruled.
With respect to the Employer's challenges to bal-
lots, the Regional Director sustained the challenges
to four ballots3 and overruled the remainder,
noting that on a date to be determined by him all
challenged ballots that had been overruled would
be opened and counted and that a proper certifica-
tion would then be issued. Thereafter, the Employ-
er and the Union filed requests for review of the
Regional Director's Supplemental Decision and
Order. By telegraphic order dated March 4, 1982,
the Board, while finding that a substantial issue had
been raised concerning the ballots of employees
Pierce, Wilshusen, Brink, and LaMarche, denied, in
all other respects, the Employer's and the Union's
requests for review. However, noting that the
opening and counting of the ballots whose chal-
lenges had been overruled might make the ballots
of the above-named individuals nondeterminative,
the Board found it unnecessary to rule on their eli-
gibility to vote until such time as a revised tally of
ballots showed them to be determinative. 4 On
April 1, 1982, a revised tally of ballots was issued
revealing that of the 148 ballots cast, 77 were cast
for, and 67 against, the Union, with the 4 chal-
lenged ballots remaining nondeterminative. The
Union was thereafter certified on April 9, 1982, as
the exclusive collective-bargaining representative
of all employees in an appropriate unit.5
In relying on the objections raised in the under-
lying representation proceeding and by questioning
the voter eligibility of certain strikers, Respondent
in the instant case is seeking to relitigate matters
that have previously been considered and rejected
by the Board. It is well settled that in the absence
of newly discovered or previously unavailable evi-
dence 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 pro-
ceeding. 6
I The ballots included those of employees Marvin Pierce, Rolene Wil-
shusen, Deborah Brink, and Frederick LaMarche.
4On March 4, 1982, the Employer filed with the Board a motion for
reconsideration of its order denying the Employer's request for review.
The Board, on March 29, 1982, denied the Employer's motion as lacking
in merit. On March 19, 1982, the Employer renewed its motion for re-
consideration which the Board similarly denied on April 13, 1982, since it
raised nothing not previously considered.
I The appropriate unit consists of "All production and maintenance
employees employed by the Employer at its facilities located at 5160
West Bethany Home Road, Glendale, Arizona, and 5308 West Missouri
Avenue, Glendale, Arizona; but excluding quality control employees,
compounding room employees, office clerical employees, professional
employees, guards, and supervisors as defined in the Act."
e See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
Except for its contention that the Union lacks
majority status and its claim that it was denied due
process by the Board, all issues raised by Respond-
ent in this proceeding were or could have been liti-
gated in the prior representation proceeding, and
Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable
evidence, nor does it allege that any special cir-
cumstances exist herein which would require the
Board to reexamine the decision made in the un-
derlying representation proceeding.
Further, we find without merit Respondent's
contention that its refusal to bargain with the
Union, occurring less than 3 weeks after it was cer-
tified by the Board, was based on a good-faith
doubt of the Union's majority status based on a
change in the employee complement as of that,
time. The Board, with Supreme Court approval,
has long held that absent unusual circumstances, a
union's continued majority status is irrebuttably
and conclusively presumed to exist for 1 year fol-
lowing certification. 7 Other than the unsupported
claim in its answer that the Union did not then rep-
resent a majority of the employees in the unit,8 Re-
spondent has presented no unusual circumstances
which justified its refusal to bargain with the
Union during its certification year. Accordingly,
we find that its refusal to bargain was unlawful.
We also find without merit Respondent's conten-
tion that it was denied due process by the Board's
failure to explicate its reason for denying Respond-
ent's request for review in the underlying represen-
tation proceeding. In denying the requests for
review, the Board adopted as its own the rationale
set forth by the Regional Director in his Supple-
mental Decision and Order, which it found ade-
quate. The Board has held that no greater articula-
tion of its rationale is required of it.9
In view of the foregoing, we find that Respond-
ent has not raised any issue which is properly liti-
gable 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:
7 Lee Office Equipmenrt, 226 NLRB 826, 831 (1976); Ray Brooks v.
N.L.R.B., 348 U.S. 96 (1954); see also Lexington Cartage Company, Inc.,
259 NLRB No. 5 (1981).
a Respondent's claim, purportedly supported by an affidavit from its
personnel manager, that the striker replacements and newly hired em-
ployees comprise a majority of the bargaining unit and that the strikers
who supported the Union are a minority, is insufficient to establish that
the Union lacked majority support and does not constitute "unusual cir-
cumstances" warranting its refusal to bargain during the certification
year.
9 Middlesex Cablevision, Inc., 229 NLRB 1038, 1039 (1977).
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation with its princi-
pal office and place of business located in Glendale,
Arizona, is engaged in the business of manufactur-
ing and packaging injectable medications. During
the past 12 months, a representative period, Re-
spondent has purchased and caused to be shipped
to its Glendale, Arizona, facility goods and materi-
als valued in excess of $50,000 from points and
places located outside the State of Arizona.
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
Construction, Prodution & Maintenance Labor-
ers' Local Union 383, Laborers' International
Union of North America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. 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 at
the Employer's facilities located at 5160 West
Bethany Home Road, Glendale, Arizona, and
5308 West Missouri Avenue, Glendale, Arizo-
na; excluding quality control employees, com-
pounding room employees, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On July 1, 1981, 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 28, 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 April 9, 1982, 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 April 19, 1982, 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 April 28, 1982, 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
April 28, 1982, 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 (I) 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 ensure 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-
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. 1964), cert. denied 379 U.S. 817;
118
CARTER-GLOGAU LABORATORIES, INC.
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:
CONCLUSIONS OF LAW
1. Carter-Glogau Laboratories, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Construction, Production & Maintenance La-
borers' Local Union 383, Laborers' International
Union of North America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees
employed at the Employer's facilities located at
5160 West Bethany Home Road, Glendale, Arizo-
na, and 5308 West Missouri Avenue, Glendale, Ari-
zona; excluding quality control employees, com-
pounding room employees, office clerical employ-
ees, professional 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 April 9, 1982, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about April 28, 1982, 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 prac-
tices within the meaning of Section 8(aX5) 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)(1) 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,
Carter-Glogau Laboratories, Inc., Glendale, Arizo-
na, 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 Construction, Pro-
duction & Maintenance Laborers' Local Union 383,
Laborers' International Union of North America,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All production and maintenance employees
employed at the Employer's facilities located
at 5160 West Bethany Home Road, Glendale,
Arizona, and 5308 West Missouri Avenue,
Glendale, Arizona; excluding quality control
employees, compounding room employees,
office clerical employees, professional employ-
ees, guards and supervisors as defined 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 Glendale, Arizona, facilities copies
of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the
Regional Director for Region 28, 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 ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 28,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
10 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
119
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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Construction, Production & Maintenance
Laborers' Local Union 383, Laboeres' Interna-
tional Union of North America, AFL-CIO, as
the exclusive representative of the employees
in the bargaining unit described below.
WE 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 WILL, 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 at the Employer's facilities locat-
ed at 5160 West Bethany Home Road, Glen-
dale, Arizona, and 5308 West Missouri
Avenue, Glendale, Arizona; excluding qual-
ity control employees, compounding room
employees, office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
CARTER-GLOGAU LABORATORIES, INC.
120