Dow Chemical, U.S.A.

National Labor Relations Board - Board Decisions

Jun 2, 1977

229 N.L.R.B. 1162 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dow Chemical, U.S.A. and Oil, Chemical and Atomic
Workers' International Union, Local 3-695,
OCAW. Case 9-CA-10219
June 2, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Upon a charge filed on April 8, 1976, by Oil,
Chemical and Atomic Workers' International Union,
Local 3-695, OCAW, herein called the Union, and
duly served on Dow Chemical, U.S.A., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 9, issued a complaint and notice of hearing
on May 25, 1976, 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 March 24,
1976, following a Board election in Case 9-RD-675,
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 March 29, 1976, and at all
times thereafter, Respondent has refused, and con-
tinues 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 June 4, 1976, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On July 2, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 13, 1976, the Board
issued an 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. On July 29, 1976, Paul D. Brown, an
individual who was a Petitioner in Case 9-RD-675,
filed a motion for intervention. On August 2, 1976,
Respondent filed a memorandum in response to
Notice To Show Cause. On August 23, 1976, the
1 Official notice is taken of the record in the representation proceeding,
Case 9-RD-675, 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 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (196%7), enfd. 415 F.2d 26
229 NLRB No. 189
General Counsel filed a memorandum in opposition
to Paul D. Brown's motion for intervention. On
August 27, 1976, Respondent filed a memorandum in
support of Paul D. Brown's motion for intervention
and response to General Counsel's opposition to said
motion.
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 Motion for Summary Judgment
In its answer and its memorandum filed in
response to the Notice To Show Cause, Respondent
urges that the complaint be dismissed or, in the
alternative, that a hearing be ordered upon the
matters alleged in the complaint. Respondent's
position is based on its contention that the certifica-
tion of the Union is invalid because of infirmities in
the election and further contends: (I) evidence of
prepetition violence was arbitrarily excluded from
consideration by application of the Ideal Electric
rule2 and that its application in the representation
case was erroneous; (2) a hearing was denied on
substantial and material factual issues affecting the
election; (3) the conduct of the Board agent was
improper in that key aspects of approved procedure
were ignored thus precluding a fair election. We find
Respondent's contentions without merit.
Our review of the record herein, including the
entire record in Case 9-RD-675, discloses that the
Union won the decertification election conducted on
May 9, 1975, pursuant to a Stipulation for Certifica-
tion Upon Consent Election. Decertification Peti-
tioner Brown and the Respondent filed timely
objections to the election. After investigation, the
Regional Director issued his report on June 26, 1975,
in which he recommended (1) that all of the
Petitioner's objections and Respondent's Objections
3 and 6 be overruled as they raised no substantial or
material issues affecting the election results and (2)
that a hearing be held on Respondent's Objections 1,
2, 4, and 5. The Regional Director also concluded
that the prepetition conduct was not so "deplorable"
that it rendered impossible a "rational, uncoerced
choice" in the selection of a bargaining representa-
tive. He, therefore, recommended that the alleged
objectionable conduct which occurred prior to the
filing of the petition should not be considered in
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 The Ideal Electric and Manufacturing Company, 134 NLRB 1275 (1961).
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DOW CHEMICAL, U.S.A.
determining whether the election should be set aside,
relying on the rule enunciated in Ideal Electric, supra.
On August 28, 1975, the Board adopted the Regional
Director's findings and recommendations and or-
dered that a hearing be held to resolve the issues
raised with respect to Respondent's Objections 1, 2,
4, and 5.
Pursuant to the order of the Board, a hearing was
held on October 1, 1975, at Ironton, Ohio, before
Hearing Officer J. Michael Fisher in which the
Petitioner, Respondent, and Union participated. The
Hearing Officer overruled the four objections in their
entirety and noted in footnote 3 of his report that he
refused to take evidence regarding prepetition
conduct in light of the Board's adoption of the
Regional Director's recommendation that prepetition
conduct not be considered. On March 24, 1976, the
Board, after considering the Hearing Officer's report
and recommendations and the Respondent's excep-
tions thereto, adopted with minor modifications the
report and recommendations of the Hearing Officer
and issued a Certification of Representative to the
Union. We conclude that Respondent's contentions
as to prepetition conduct were considered and
disposed of by the Board in the underlying represen-
tation case and cannot be relitigated here.
With regard to Respondent's contention that a
hearing was denied on substantial and material
factual issues, the Regional Director considered and
the Board approved a hearing to resolve only
Respondent's Objections 1, 2, 4, and 5. Again, it is
clear that Respondent is attempting to relitigate
matters resolved in the underlying representation
case.
As to (3), Respondent is raising as an issue the
conduct of the Board agent in not setting a
preelection conference and in not notifying the
Petitioner, Brown. Not only was his objection not
timely raised as an objection to the election and
cannot be raised at this late date, but it also is a
matter that could have been raised in the underlying
representation case and therefore may not be
relitigated now.
With respect to Petitioner Brown's motion to
intervene, we deny the motion because we find no
merit in his contention that he had been arbitrarily
and capriciously denied a hearing on the substantial
and material issues raised by his election objections.
We note that the Regional Director had recommend-
ed that these objections be overruled because he had
found that they did not raise such issues and, despite
the Petitioner's exceptions to this finding, the Board,
in its order of August 28, 1975, adopted the Regional
Director's findings and recommendations. Accord-
3 Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976).
4 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).
ingly, we find without merit the Petitioner's conten-
tion that he is entitled to a hearing on his objections
as the Board has held, with judicial approval, that
evidentiary hearings are not required where, as here,
there are no substantial or material facts to be
determined.3
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 Respondent in this proceeding
were or could have been litigated 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 circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that 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
Respondent is a Delaware corporation engaged in
the manufacture of chemicals at its various plants
throughout the United States including the facility
herein at Hanging Rock, Ohio. During the past
calendar year, a representative period, Respondent
sold products valued in excess of $50,000 and caused
them to be shipped directly to customers located
outside the State of Ohio.
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.
II1. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers' International
Union, Local 3-695, OCAW, is a labor organization
within the meaning of Section 2(5) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 hourly rated employees of the Employer's
Hanging Rock plant of the plant site in Hamilton
and Green Townships in Lawrence and Scioto
Counties, Ohio, excluding plant protection em-
ployees, office and clerical employees, engineers
and professional personnel, superintendents, fore-
men, subforemen, and salaried employees.
2. The certification
On May 9, 1975, 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 9, 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 March 24, 1976, 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 March 31, 1976, 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 March 29, 1976, 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 March 29, 1976, 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 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:
CONCLUSIONS OF LAW
1. Dow Chemical, U.S.A., 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, Local 3-695, OCAW, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All hourly rated employees of the Hanging
Rock plant of the Employer's plant site in Hamilton
and Green Townships in Lawrence and Scioto
Counties, Ohio; excluding plant protection employ-
ees, office and clerical employees, engineers and
professional personnel, superintendents, foremen,
subforemen, and salaried employees, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
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DOW CHEMICAL, U.S.A.
4. Since March 24, 1976, 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 March 29, 1976, 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)(l) 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.
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its office and all plant bulletin boards at
its Hanging Rock, Ohio, plant copies of the attached
notice marked "Appendix." 5 Copies of said notice,
on forms provided by the Regional Director for
Region 9, 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 conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable 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 9, 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."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Dow Chemical, U.S.A., Hanging Rock, Ohio, 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
conditions of employment with Oil, Chemical and
Atomic Workers' International Union, Local 3695,
OCAW, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All hourly rated employees of the Hanging Rock
plant of the Employer's plant site in Hamilton
and Green Townships in Lawrence and Scioto
Counties, Ohio; excluding plant protection em-
ployees, office and clerical employees, engineers
and professional personnel, superintendents, fore-
men, subforemen, and salaried employees.
(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-
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, Local 3-695, OCAW, 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 hourly rated employees of the Hanging
Rock plant of the Employer's plant site in
Hamilton and Green Townships in Law-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rence and Scioto Counties, Ohio; excluding
plant protection employees, office and cleri-
cal employees, engineers and professional
personnel, superintendents, foremen, sub-
foremen, and salaried employees.
Dow CHEMICAL, U.S.A.
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