Childers Products Co.

National Labor Relations Board - Board Decisions

Jun 19, 1979

242 N.L.R.B. 1280 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Childers Products Company and Teamsters Union Lo-
cal 115 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 4-CA-9707
June 19, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on October 19, 1978, by Team-
sters Union Local 115 a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called the Union, and duly
served on Childers Products Company, herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 4, issued a complaint and notice of hearing on
November 22, 1978, 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 (I) 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 September 21.
1978, following a Board election in Case 4-RC-
12735, 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 October 13, 1978, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On December 1, 1978, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On March 5, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on March 19, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
Official notice is taken o the record in the representation proceeding,
Case 4-RC-12735, 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):
Folleti Corp., 164 NLRB 378 (1967), enfd. 397 1.2d 91 (7th Cir. 1968); Sec
9(d) of the NLRA, as amended.
not be granted. Respondent thereafter filed a re-
sponse 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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent contends
that the Board erroneously found that Charles Lam-
bing and Reginald Weiser were supervisors rather
than highly skilled lead persons and that Wayne
Emme was a seasonal employee who received only
some fringe benefits enjoyed by other employees and
whose summer employment was not conditional on
his returning, whereas Respondent contends that he
was at all times eligible for benefits and was expected
to return when he was hired. Respondent concedes
that its position is no different from the previous pro-
ceedings. The General Counsel argues that all mate-
rial issues have been previously decided and there are
no litigable issues of fact requiring a hearing. We
agree with the General Counsel.
Our review of the record herein, including the rec-
ord in Case 4-RC-12735, discloses that pursuant to a
Stipulation for Certification Upon Consent Election
Agreement an election was conducted on August 8,
1977. The tally showed eight votes cast for and six
against the Union, with three challenged ballots. Re-
spondent filed timely exceptions to the Regional Di-
rector's report and recommendations, contending es-
sentially the same facts as noted above.
On December 22, 1977, the Board issued a Deci-
sion and Order remanding proceeding to Regional
Director for hearing on two of the determinative chal-
lenged ballots, those of Reginald Weiser and Charles
Lambing, unholding the Regional Director's finding
that the challenge to the ballot of Wayne Emme be
sustained. On June 8, 1978, the Hearing Officer issued
her report on challenged ballots in which she con-
cluded that Weiser and Lambing were supervisors
and recommended that the challenge to their ballots
be sustained. Respondent timely filed exceptions to
the Hearing Officer's report. On September 21, 1978,
the Board adopted the Hearing Officer's findings and
recommendations and issued a Certification of Repre-
sentative.
It is well settled that in the absence of newly dis-
covered 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
242 NLRB No. 182
1280
CHII.DERS PRODUCTS COMPANY
issues which were or could have been litigated in a
prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding. and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly 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 RESPONDEN)I
Respondent is a California corporation engaged in
the manufacture and distribution of fabricated metal
jacketings, mastics, coatings, and adhesives. During
the past 12 months the Respondent sold and shipped
from its Bristol, Pennsylvania. facility to various firms
outside the Commonwealth of Pennsylvania goods
valued in excess of $50.000.
We find, on the basis of the foregoing. that Respon-
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
effectuate the policies of the Act to assert jurisdiction
herein.
11. THE LABOR ORGANIZAI'ION IN\IOL.\Et)
Teamsters Union Local 115 a/w International
Brotherhood of Teamsters, Chauffeurs. Warehouse-
men and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
11I. THE UNFAIR LABOR PRA(I I( S
A. The Representation Proceedling
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(h) of the Act:
All production and maintenance employees in-
cluding shippers. receivers. and chemical mixers
2
See Pilhurgh Platre G/arr (;a , 1. R h. 313 .S 146. 162 (19411:
Rules and Rgulaulns o, the Board. S,-Ic 1(12 6h7( and 1069(.)
at Respondent's plant located at 2061 Hartel
Street. Bristol, Pennsylvania; but excluding all
office clericals, guards and supervisors as defined
in the Act.
2. The certification
On August 8, 1977, 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 4. designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on September 21, 1978, and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Retiusal
Commencing on or about September 29. 1978. and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about October 3, 1978. and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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 Respondent has. since
October 13, 1978. and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, 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. IIF Li tI( I 0() IE UNFAIR LABOR PRACTICES
UPON COMMER('E
The activities of Respondent set forth in section
Ill, 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 otf commerce.
. 11I RSM1ID)Y
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) of the Act, we shall
order that it cease and desist therefrom. and. upon
1281
DFCISIONS OF NATIONAL. LABOR RELATIONS BOARD
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employee in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company. Inc., 136 NLRB
785 (1962); Commerce Company d/h/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); 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:
CONC(LUSIONS OF LAW
1. Childers Products Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Union Local 115 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees in-
cluding shippers, receivers, and chemical mixers at
Respondent's plant located at 2061 Hartel Street,
Bristol, Pennsylvania: but excluding all office cleri-
cals, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since September 21, 1978, the above-named la-
bor 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 October 13, 1978, 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 Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 them in Sec-
tion 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 Rela-
tions Board hereby orders that the Respondent,
Childers Products Company, Bristol, Pennsylvania,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Teamsters Union Local
115 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees in-
cluding shippers, receivers, and chemical mixers
at Respondent's plant located at 2061 Hartel
Street, Bristol, Pennsylvania: but excluding all
office clericals, guards, and supervisors as de-
fined 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at 2061 Hartel Street, Bristol, Pennsylva-
nia, copies of the attached notice marked "Appen-
dix."3 Copies of said notice, on forms provided by the
Regional Director for Region 4, 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-
'In the event thai this Order is enforced hb a Judgment of a Uniled States
Court of Appeals, the words in the notice reading "Posted b Order of the
National l.abor 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."
1282
CHILDERS PRO[)ICTS COMPANY
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOII(cF To EIIoYE iS
PosIrI) BY ORI)ER O()F t
NATIONAI. LABOR REIATIONS BOARD
An Agency of the United States Government
WE WILt. NOTr refuse to bargain collectively
concerning rates of pay. wages, hours, and other
terms and conditions of employment with Team-
sters Union Local 115 a/w International Broth-
erhood of eamsters, Chauffeurs, Warehouse-
men and Helpers of America as the exclusive
representative of the employees in the bargaining
unit described below.
WE Wi.L NO] 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 Wll., upon request. bargain with the
above-named Union. as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed 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
including shippers, receivers, and chemical
mixers at Respondent's plant located at 2061
Hartel Street, Bristol, Pennsylvania: but ex-
cluding all office clericals. guards. and supervi-
sors as defined in the Act.
CiD11.I)iuRS PRO()I)(IS ('()MPANY
1283