Dowling Bag Co., Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1975

216 N.L.R.B. 252 (N.L.R.B. 1975)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dowling Bag Company, Inc. and United Paperworkers
International Union, AFL-CIO. Case 10-CA-
10912
January 22, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
Upon a charge filed on September 9, 1974, by
United Paperworkers International Union, AFL-
CIO, herein called the Union, and duly served on
Dowling Bag Company, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 10, issued a complaint on September 13,
1974,-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 Adminis-
trative 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 July 8, 1974,
following a Board election in Case 10-RC-9887 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; t and that, commenc-
ing on or about August 29, 1974 , and at all times
thereafter, Respondent has refused, and continues 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 September 20, 1974, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On October 7, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, asserting that by its answer to
the complaint the Respondent was attempting to
relitigate issues previously raised and litigated in the
representation proceeding. Subsequently, on October
11, 1974, 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. Re-
spondent thereafter filed a Reply to Notice To Show
Cause, and a Cross-Motion for Summary Judgment.
1 Official notice is taken of the record in the representation proceeding,
Can 10-RC-9887 , as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations . Serves 8, as amended. See
LTV Electrosystenis, Inc., 166 NLRB 938 (1%7), enfd . 388 F .2d 683 (C.A. 4,
216 NLRB No. 37
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 answer to the complaint and reply to the
Notice To Show Cause, Respondent argues that,
because of the Union's misrepresentations prior to
the election, a free and uncoerced majority of the
employees did not vote for the Union in the
underlying representation proceeding, and thus it has
no obligation to bargain with the Union. Respondent
also asserts, in the alternative to its Cross-Motion for
Summary Judgment, that due process requires a
hearing on the issues raised.
In view of the General Counsel's argument that
Respondent is attempting to relitigate issues raised
and resolved in the representation proceeding, we
have reviewed the record thereof. It reveals that,
following the Union's victory in the election conduct-
ed pursuant to a Stipulation for Certification Upon
Consent Election, Respondent filed timely objections
to conduct affecting the results of the election.
Respondent alleged, in substance, that the Union
had misrepresented wage rates it had obtained for
employees in other companies, and had threatened
employees with physical and economic harm if they
did not vote for the Union. Following investigation,
the Regional Director issued a report on objections,
finding the misrepresentations by the Union insuffi-
cient to warrant setting aside the election, and, in the
absence of any supporting evidence, dismissed
Respondent's second objection. Respondent filed
exceptions to this report, reasserting its argument
before the Board concerning the Union's misrepre-
sentations and their effect on the election results. On
July 8, 1974, the Board issued a Decision and
Certification of Representative in which it adopted
the Regional Director's findings and recommenda-
tions, and, noting that Respondent's exceptions
raised no material or substantial issues of fact or law
warranting reversal of the Regional Director, certif-
ied the Union.
It thus appears that Respondent raised and
litigated the issue of the Union's misrepresentations
in the representation proceeding, and such matters
were previously considered by the Board. It is well
settled that in the absence of newly discovered or
previously unavailable evidence or special circum-
1968); Golden Age Beverage Co., 167 NLRB 151 (1%7), enfd . 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp . 573 (D .C. Va., 1957);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F .2d 91 (C .A. 7, 1968); Sec.
9(d) of the NLRA.
DOWLING BAG COMPANY, INC. 253
stances 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.2
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 proceeding.
We find no merit in Respondent's contention that
due process requires a hearing on the issue it raises
herein. The issue of the Union's misrepresentations
Respondent seeks to use as a defense to the Motion
for Summary Judgment was raised in the representa-
tion proceeding and was considered and rejected on
the merits by the Regional Director. Upon Respond-
ent's exceptions before the Board, we found that
there was no material 'or substantial factual or legal
issue raised thereby. Absent a prima facie showing of
a material or substantial factual or legal issue which
would warrant setting aside the election , a hearing is
not required to satisfy contentions as to due process.3
No such showing has been made here.
Accordingly, we shall grant the General Counsel's
Motion for Summary Judgment; 4 in view of this
ruling, Respondent's Cross-Motion for Summary
Judgment is denied.
On the basis of the entire record , the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Georgia corporation engaged in
the manufacture of textile and multiwall bags with an
office and place of business located at Valdosta,
Georgia. During the past calendar year, which period
is representative of all times material herein, Re-
spondent sold and shipped finished products valued
in excess of $50,000 directly to customers located
outside the State of Georgia.
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
2 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
s Danville Industries, Inc., 210 NLRB 307 (1974).
4 Member Penello agrees that the General Counsel's Motion for
Summary Judgment should be granted since all issues raised by the
Respondent in this proceeding were or could have been litigated in the prior
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
United Paperworkers 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
1. 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 em-
ployed by the Employer at its plant located in
Valdosta, Georgia, including plant clerical em-
ployees, over-the-road and local truck drivers, but
excluding all office clerical employees, profession-
al employees, guards and supervisors as defined
in the Act.
2. The certification
On March 14, 1974, 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 bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on July 8, 1974, 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 August 20, 1974, 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 August 29, 1974, and continu-
ing 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-
representation proceeding . In any event, if he had participated in the prior
representation proceeding, he would have found that the misrepresentations
alleged in the Employer's objections did not warrant setting the election
aside for the reasons set forth in his dissenting opinion in Medical Ancillary
Services, Inc., 212 NLRB 582 (1974).
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since August 29, 1974, 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, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) 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 commer-
ce.
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. Dowling Bag Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Paperworkers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Employer at its plant located in
Valdosta, Georgia , including plant clerical employ-
ees, over-the-road and local truck drivers, but
excluding all office clerical employees , 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 July 8, 1974, 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 August 29, 1974, 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, Respond-
ent 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,
Dowling Bag Company , Inc., Valdosta , Georgia, 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 United Paperworkers
International Union , AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees em-
ployed by the Employer at its plant located in
Valdosta , Georgia, including plant clerical em-
ployees, over -the-road and local truck drivers, but
excluding all office clerical employees, profession-
al employees , guards and supervisors as defined
in the Act.
DOWLING BAG COMPANY, INC.
(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 Valdosta, Georgia, facilities, copies
of the attached notice marked "Appendix." 5 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
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 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words to 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
255
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 United
Paperworkers International Union, 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 employ-
ees employed by the Employer at its plant
located in Valdosta, Georgia, including
plant clerical employees, over-the-road and
local truck drivers, but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
DOWLING BAG
COMPANY, INC.
(Employer)