Cherokee Nitrogen Co.

National Labor Relations Board - Board Decisions

Nov 30, 1972

200 N.L.R.B. 630 (N.L.R.B. 1972)

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cherokee Nitrogen Company and Oil, Chemical &
Atomic Workers International Union, AFL-CIO
Case 16-CA-4848
November 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on July 10, 1972, by Oil,
Chemical & Atomic Workers International Union,
AFL-CIO, herein called the Union, and duly served
on Cherokee Nitrogen Company, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 16, issued a complaint on
August 29, 1972, 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 February 9,
1972, following a Board election in Case
16-RC-5802 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate, i
and that, commencing on or about June 13, 1972,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so Subsequently, the
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint and setting forth an affirmative
defense
On September 15, 1972, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment in which he submits, in effect,
that the Respondent's answer to the complaint raises
no issue not already disposed of in the representation
proceeding, case 16-RC-5802, and prays the Board
to grant the motion for summary judgment Subse-
quently, on October 2, 1972, the Board issued an
i Official notice is taken of the record in the representation proceeding
Case 16-RC-5802 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 Age Beverage Co 167 NLRB 151 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
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 entitled "Employer's Brief in
Opposition to General Counsel's Motion for Summa-
ry Judgment," with affidavits and wage schedule
attached thereto
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 response to the notice to show cause
opposing the General Counsel's motion for summary
judgment, with attachments,2 the Respondent raises
the same matters that it raised in the underlying
representation case and the affirmative defense
contained in its answer to the complaint Thus, the
Respondent denies the appropriateness of the unit
and, consequently, the validity of the certification of
the Union as the exclusive bargaining representative
of the employees in the appropriate unit, and it
admits that the thrust of its contention is "directed to
the Regional Director's finding that the assistant
chemist should not be included in the unit"
Upon the record before us, including the record in
Case 16-RC-5802, we find no merit in the Respon-
dent's position The election in the representation
case was conducted pursuant to a Decision and
Direction of Election, and upon conclusion of the
election the parties were served with a tally of ballots
which reflected that, of approximately 47 eligible
voters, 23 votes were cast for and 22 were cast
against the Union, and the ballots of the chief
chemist and assistant chemist were challenged by the
Board agent on grounds that their names did not
appear on the voting list 3
Inasmuch as the challenges were sufficient in
number to affect the results of the election, the
Regional Director conducted an investigation and on
February 9, 1972, he issued and caused to be served
on the parties a Supplemental Decision and Certifi-
cation of Representative, in which he determined
that the chief chemist is a technical employee and
that the duties, interests, and skills of the assistant
2 The attachments submitted are the same as those previously considered
by the Board in the representation proceeding
3 The Respondent and Union both sought to exclude these employees
however it was determined that there was not sufficient evidence adduced
at the hearing upon which to make a unit placement Therefore both
employees were voted by challenged ballot
200 NLRB No 89
CHEROKEE NITROGEN CO
chemist are related to those of the chief chemist
whom he serves as an assistant, and dissimilar from
those possessed by the production and maintenance
employees Accordingly, the Regional Director
sustained both challenged ballots and certified the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit
On February 22, 1972, the Respondent filed with
the Board a request for review of the Regional
Director's Supplemental Decision and Certification
of Representative, asserting that the assistant chemist
should be included in the unit On March 14, 1972,
by telegraphic order, the Board denied the Respon-
dent's request for review as it raised no substantial
issues warranting review Subsequently, on March
20, 1972, the Respondent submitted a request for
rehearing or oral argument, and on March 28, 1972,
by telegraphic order, the Board denied the Respon-
dent's request as it contained nothing not previously
considered On April 21, 1972, the Respondent
submitted to the Board a supplemental request for
rehearing and motion to reopen the record, which the
Board on April 26, 1972, by telegraphic order, denied
as it contained nothing not previously considered
Clearly, by its answer to the complaint as well as its
response to the notice to show cause opposing the
General Counsel's motion for summary judgment,
the Respondent is attempting to relitigate the unit
issue raised and determined in the previous repre-
sentation proceeding
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 proceedings We shall, accord-
ingly, grant the motion for summary judgment
On the basis of the entire record, the Board makes
the following
4 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941)
Rules and Regulations of the Board Secs 102 67(f) and 102 69(c)
5 In its answer to the complaint Respondent asserts in effect that it
does not have sufficient knowledge of the Union s status as a labor
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
631
Respondent is, and has been at all times material
herein, a corporation duly organized under and
existing by virtue of the laws of the State of
Oklahoma, having its principal office and place of
business at Pryor, Oklahoma, where it is engaged in
the manufacture of fertilizer Respondent, during the
past 12 months, which period is representative of all
times material herein, has received in excess of
$50,000 for the sale of goods and services and has
made sales in excess of $50,000 to customers located
in States other than Oklahoma
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
II THE LABOR ORGANIZATION INVOLVED
Oil, Chemical & Atomic Workers International
Union, AFL-CIO, 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 of
the Employer's plant at Pryor, Oklahoma, includ-
ing custodian and plant storeroom clerks, exclu-
sive of office clerical employees, buyer, temporary
employees, professional employees, guards, and
supervisory employees as defined in the Act
2 The certification
On November 30, 1971, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 16, 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
organization A determination was made in the underlying representation
proceeding Case 16-RC-5802 that the Union is a labor organization and
accordingly it is not subject for litigation in the instant unfair labor practice
proceeding
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 9, 1972, 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 8, 1972, 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 13, 1972, 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 representa-
tive for collective bargaining of all employees in said
unit
Accordingly, we find that the Respondent has,
since June 13, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent 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 the 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, Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd 328 F 2d 600 (C A 5),
cert denied 379 U S 817, Burnett Construction
Company, 149 NLRB 1419, 1421, enfd 350 F 2d 57
(C A 10)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 Cherokee Nitrogen Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act
2 Oil, Chemical & Atomic Workers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act
3 All production and maintenance employees of
the Employer's plant at Pryor, Oklahoma, including
custodian and plant storeroom clerks, exclusive of
office clerical employees, buyer, temporary employ-
ees, professional employees, guards, and supervisory
employees 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 February 9, 1972, 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 June 13, 1972, 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 Respondent,
Cherokee Nitrogen Company, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively concerning
CHEROKEE NITROGEN CO
rates of pay, wages, hours, and other terms and
conditions of employment, with Oil, Chemical &
Atomic Workers International Union, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit
All production and maintenance employees of
the Employer's plant at Pryor, Oklahoma, includ-
ing custodian and plant storeroom clerks, exclu-
sive of office clerical employees, buyer, temporary
employees, professional employees, guards, and
supervisory employees 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 Pryor, Oklahoma, office, copies of
the attached notice marked "Appendix "6 Copies of
said notice, on forms provided by the Regional
Director for Region 16, 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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
6 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
633
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 & Atomic Workers International Un-
ion, 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 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 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
of the Employer's plant at Pryor, Oklahoma,
including custodian and plant storeroom
clerks, exclusive of office clerical employees,
buyer, temporary employees, professional
employees, guards, and supervisory employ-
ees as defined in the Act
CHEROKEE NITROGEN
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is 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, Federal Office Building, Room
8-A-24, 819 Taylor Street , Fort Worth, Texas 76102,
Telephone 817-334-2921