Certain-Teed Corporation

National Labor Relations Board - Board Decisions

Mar 19, 1981

255 N.L.R.B. 65 (N.L.R.B. 1981)

CERTAIN-TEED CORPORATION
Certain-Teed Corporation and Glass Bottle Blowers
Association of the United States and Canada,
AFL-CIO. Case 10-CA-15796
March 19, 1981
DECISION AND ORDER
Upon a charge filed on May 6, 1980, by Glass
Bottle Blowers Association of the United States
and Canada, AFL-CIO, herein called the Union,
and duly served on Certain-Teed Corporation,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 10, issued a complaint
on June 19, 1980, 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 13,
1980, following a Board election in Case 10-RC-
11650, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about April 25,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On July 21,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On August 25, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 29,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Official notice is taken of the record in the representation proceed-
ing, Case IO-RC-1 1650, 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.
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to
Notice To Show Cause, and amendments thereto,
Respondent contends that the Board's disposition
of the underlying representation case is in direct
conflict with various decisions of the United States
Court of Appeals for the Fifth Circuit.2 In this
regard, Respondent contends that it has been
denied due process of law because the Board failed
to order a hearing after Respondent presented
prima facie evidence of objectionable conduct
which could have or did tend to affect the out-
come of the election. Respondent further contends
that a genuine issue of material fact exists on the
question of whether the Charging Party (herein
called the Union) made a valid request to bargain.
The General Counsel contends that Respondent's
answer raises no issues other than those fully con-
sidered by the Board in the underlying representa-
tion proceeding and that Respondent is seeking to
relitigate such issues. We agree.
Our review of the record herein, including the
record in Case 10-RC-11650, discloses that the
Union filed a petition for an election on January
22, 1979. Subsequently, the parties entered into a
Stipulation for Certification Upon Consent Election
which was approved on February 8, 1979. Thereaf-
ter, on February 15 and 16, 1979, an election was
conducted in an appropriate unit, which resulted in
a tally of 180 votes for and 144 against the Union,
with 2 challenged ballots, an insufficient number to
affect the outcome of the election. The Respondent
timely filed objections to the conduct of the elec-
tion alleging, inter alia, that the Union made mate-
rial misrepresentations to voters at a time which
prevented an effective reply by Respondent; that
the Union threatened employees and created an at-
mosphere of fear and violence thereby denying the
employees the opportunity for a free choice in the
election; that the Board agent allowed campaigning
and other acts and conduct in and around the poll-
ing area which destroyed the laboratory conditions
required for the election; and that the Union of-
fered and/or granted benefits to eligible voters or
created the impression that such benefits would be
granted to eligible voters if they supported the
Union in the election.
On May 14, 1979, the Regional Director issued
his Report on Objections in which he recommend-
2 Respondent cites, inter alia. N.L.R.B. v. Polyflex M Company, 622
F.2d 128 (5th Cir. 1980); N.LR.B. v. Claxton Manufacturing Company
Inc., 613 F.2d 1364 (5th Cir. 1980); Luminator Division of Gulton Indus-
tries, Inc. v. N.LR.B., 469 F.2d 1371 (5th Cir. 1972); N.LR.B. v. Mr.
Fine, Inc., 516 F.2d 60 (5th Cir. 1975); .V.LR.B. v. Carlton McLendon
Furniture Co., Inc.., 488 F.2d 58 (5th Cir. 1974): N.L.R.B. v. Smith Indus-
tries, Inc., 403 F.2d 889 (5th Cir. 1968).
255 NLRB No. 7
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed, on the basis of an administrative investigation,
that Respondent's objections be dismissed in their
entirety. Respondent filed exceptions to the Re-
gional Director's report on June 14, 1979, request-
ing that the Board order a hearing on all its objec-
tions. Thereafter the Board issued a Decision and
Direction on August 14, 1979,3 in which it adopted
the Regional Director's recommendations that Ob-
jections 1, 2, 4, and 5 be overruled, but directed
that a hearing be held to resolve issues raised by
Objections 3 and 6.4 Thereafter a hearing was held
before a Hearing Officer who recommended that
Respondent's Objections 3 and 6 be overruled. Re-
spondent timely filed with the Board exceptions to
the Hearing Officer's report, primarily alleging that
the Hearing Officer made erroneous credibility res-
olutions, and requesting that the election be set
aside. The Union filed an opposition to Respond-
ent's exceptions.
On March 13, 1980, the Board adopted the Hear-
ing Officer's recommendations that Respondent's
objections be overruled, and certified the Union.5
Respondent filed a motion for reconsideration on
April 7, 1980, alleging in substance that, if the
Board had been aware of the testimony of one of
its witnesses at the September 13, 1979, hearing, it
would not have adopted the Regional Director's
recommendation that Objection I be overruled.
The Board thereafter on July 14, 1980, issued an
order denying motion for reconsideration. 6
The Union on April 11 and 22, 1980, and at all
times thereafter, requested Respondent to bargain
with it as the exclusive representative of the em-
ployees in the unit. Respondent since April 25,
1980, has refused to bargain with the Union. Re-
spondent, however, contends in its answer that the
Union's bargaining requests were invalid because
they were made while Respondent's motion for re-
consideration was pending, and it would therefore
be improper, premature, and in derogation of its
appeal right in the representation case for Respond-
s Not included in the bound volumes of Board Decisions.
' These objections allege that the Union granted benefits to eligible
voters or created the impression that such benefits would be granted if
the voters supported the Union, and that the Board agent told an em-
ployee that he would "appreciate a yes vote."
5 The Board inadvertently erred by stating at fn. I of its Supplemental
Decision that an earlier Board (unpublished) decision adopted the Re-
gional Director's report recommending that all objections except Objec-
tions 3 and 6 be overruled. In fact, the Regional Director had recom-
mended that all objections be overruled.
I With regard to Respondent's contention that certain newly discov-
ered evidence requires the Board to reconsider its two previous panel de-
cisions, the Board found that the allegedly newly discovered evidence
was not timely filed, inasmuch as Respondent had available the testimony
of its own witness 7 months prior to the filing of the Motion for Recon-
sideration. The Board further noted that Respondent did not allege the
witness' unavailability nor did it submit this evidence to the Board with
its original request for reconsideration of the Regional Director's Report
on Objections filed in May 1979.
ent to engage in any discussion with the Union
concerning collective bargaining.
Respondent further contends that at the time
such requests were made there had been no final
determination by the Board in the representation
case, and the Union has not made any further re-
quest for bargaining. Also, Respondent claims that,
even if the Union's April requests for bargaining
were not invalid, Respondent has never refused to
bargain. Finally, in its response to the Motion for
Summary Judgment, Respondent contends that ma-
terial factual issues exist as to these matters.
We find no merit to Respondent's contentions.
The Board's March 13, 1980, decision and certifica-
tion of bargaining representative was final and
binding. Respondent's motion for reconsideration
did not render that decision any less final; nor did
it have the effect of suspending the certification.
The Union's requests, therefore, were timely and
valid, and, in any event, continuing in their effec-
tiveness. As for Respondent's claim that it has not
refused to bargain we conclude that its reply to the
Union's requests speaks for itself, as does its subse-
quent action herein. Accordingly, we find that
there are no factual issues remaining to be resolved
in this proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.7
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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.8
7 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f and 102.69 (c).
8 In its response to The Notice To Show Cause, Respondent contends
that the Board's decision ruling on the Regional Director's Report on
Objections conflicts with certain precedents of the United States Court of
Appeals for the Fifth Circuit (see fn. 2 and cases cited therein). With
regard to Respondent's contentions, and after careful examination of Re-
spondent's authorities, we conclude that our disposition of this case via
summary judgment is not in conflict with the principles set forth by the
Fifth Circuit in this area.
Specifically, we note that, while the Fifth Circuit has ruled that an ex
parte investigation by the regional director into objectionable conduct is
no substitute for a hearing, Claxton. supra (which issued after the Board's
decision in this case), the Fifth Circuit has also held that the Board has
discretion in determining whether an election was fairly conducted. Gulf
Coast Automotive Warehouse Company, Inc. v. N.L.R.B., 588 F.2d 1096
(5th Cir. 1979). Moreover, whether the employer has made out a prima
facie showing that objectionable conduct occurred is a question of law.
Luminator Division of Gulton Industries, Inc. v. VN.L.R.B.. supra. And, it is
Continued
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CERTAIN-TEED CORPORATION
We therefore find that Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. Accordingly, we 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 RESPONDENT
Respondent is, and has been at all times herein, a
Maryland corporation with an office and place of
business at Athens, Georgia, where it is engaged in
the manufacture of insulation. In the course and
conduct of its business, Respondent during the past
calendar year sold and shipped from its Athens,
Georgia, facility products, goods, and materials
valued in excess of $50,000 directly to finished cus-
tomers located outside the State of Georgia.
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
Glass Bottle Blowers Association of the United
States and Canada, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11I. 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 hourly paid production and maintenance
employees employed by the Employer at its
Athens, Georgia, facility, excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
well settled in administrative law that questions of law are best left to
agency discretion.
In Claxton, supra, the court held that as a matter of due process an
evidentiary hearing must be conducted when, after an election, the losing
party files with the regional director evidence which prima facie raises
substantial and material issues that would warrant setting aside an elec-
tion. In the instant case the Board considered Respondent's objections
and supporting evidence and determined that no hearing was necessary
other than on its Objections 3 and 6 on which hearings were held. As
noted, the Board adopted the Hearing Officer's recommendation to over-
rule those objections.
2. The certification
On February 15 and 16, 1979, 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 10, 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 March 13, 1980, 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 11, 1980, and at
all times thereafter, including April 22, 1980, the
Union has requested Respondent to bargain collec-
tively with it as the exclusive collective-bargaining
representative of all the employees in the above-de-
scribed unit. Commencing on or about April 25,
1980, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
April 25, 1980, 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 (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
67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached, embody such understanding in a signed
agreement.
In order to insure 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;
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. Certain-Teed Corporation is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Glass Bottle Blowers Association of the
United States and Canada, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. All hourly paid production and maintenance
employees employed by the Employer at its
Athens, Georgia, facility, excluding office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since March 13, 1980, 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 purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about April 25, 1980, 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(a)(5) 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)(l) 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,
Certain-Teed Corporation, Athens, Georgia, its of-
ficers, 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 Glass Bottle Blow-
ers Association of the United States and Canada,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All hourly paid production and maintenance
employees employed by the Employer at its
Athens, Georgia, facility, excluding office
clerical employees, professional employees,
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 Athens, Georgia, facility copies of
the attached notice marked "Appendix."9 Copies
of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
9 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."
68
CERTAIN-TEED CORPORATION
(c) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Glass Bottle Blowers Association of the
United States and Canada, AFL-CIO, the ex-
clusive 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 hourly paid production and maintenance
employees employed by the Employer at its
Athens, Georgia, facility, excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
CERTAIN-TEED CORPORATION
69