Great Lakes Chemical Corp.

National Labor Relations Board - Board Decisions

Dec 28, 1990

300 N.L.R.B. 1024 (N.L.R.B. 1990)

1024
300 NLRB No. 133
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complaint alleges that about February 11, 1985, and thereafter, the
Union requested the Respondent to bargain collectively with the Union as the
exclusive bargaining representative of all employees in the appropriate bar-
gaining unit, with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment and that the Respondent refused on
February 19, 1985, and thereafter. In its answer, the Respondent admits that
the Union ‘‘demanded recognition of certain employees at its Newport, Ten-
nessee facility’’ on February 11 and December 9, 1985, and that it ‘‘declined
the Union’s demand for recognition’’ about February 19, 1985, and February
3, 1986, and denies these allegations in all other respects.
Great Lakes Chemical Corporation and Oil, Chem-
ical and Atomic Workers International Union,
AFL–CIO, Local 3-724. Case 10–CA–24463
December 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On December 28, 1989, the General Counsel of the
National Labor Relations Board issued a complaint al-
leging that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain and by unilaterally
laying off employees without notification to and bar-
gaining with the Union. The Respondent filed its an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On June 28, 1990, the General Counsel filed a Mo-
tion for Summary Judgment. On June 29, 1990, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain and its unilateral layoff of five employees, but
denies it engaged in any unlawful conduct. Specifi-
cally, the Respondent denies: (1) that the unit specified
in the complaint constitutes a unit appropriate for col-
lective bargaining; (2) that it is a successor employer
to Syntex Chemicals, Inc., as found in Great Lakes
Chemical Corp., 298 NLRB 615 (1990) (Great Lakes
I); (3) that Syntex maintained a facility in Newport,
Tennessee, until about June 1, 1984, where it was en-
gaged in the production of chemical products; (4) that
on June 1, 1984, the Respondent assumed the chemical
production facility previously operated by Syntex and
began performing operations previously performed by
Syntex, using equipment formerly used by Syntex, en-
gaging in substantially the same business of operating
a chemical production facility, and employing substan-
tially the same supervisors as formerly employed by
Syntex; (5) that the former Syntex employees, who the
Respondent admits compose a majority of the Re-
spondent’s employees, compose that majority in a unit
appropriate for collective bargaining; and (6) that the
Union has been, and is, the representative of a majority
of the employees in the appropriate collective-bar-
gaining unit for purposes of collective bargaining and
is their exclusive representative pursuant to Section
9(a) of the Act.1
In the Motion for Summary Judgment, the General
Counsel submits that the Respondent has conceded its
refusal to bargain and unilateral layoff of five employ-
ees on October 6, 7, and 8, 1989, and that the Re-
spondent’s defense essentially arises from its denial of
a duty to bargain with the Union. This defense, the
General Counsel contends, has been previously raised
and rejected in the Board’s prior decision in Great
Lakes I, involving the same parties. Great Lakes I
made specific factual findings that, according to the
General Counsel, collaterally estop the Respondent
from asserting any contrary facts here and provide a
complete basis for the Board to resolve the 8(a)(5) and
(1) issues, so that there are no genuine issues of mate-
rial fact requiring an evidentiary hearing before an ad-
ministrative law judge. We agree.
Great Lakes I involved allegations of 8(a)(1), (3),
(4), and (5) violations by the Respondent. The Board
adopted the administrative law judge’s findings, inter
alia, that the Respondent, as a joint employer with C
& N General Services, Inc., violated Section 8(a)(5) by
refusing to bargain with the Union as a successor to
Arapahoe Chemicals, a division of Syntex Chemicals,
Inc., as of April 26, 1985.
With respect to the General Counsel’s motion, a re-
view of the complaint allegations, the Respondent’s
answer, and the Board’s prior decision in Great Lakes
I reveal that that decision made factual findings that
address and contradict each of the points the Respond-
ent’s answer attempts to place at issue. Specifically,
contrary to the Respondent’s denials concerning
Syntex, the Board has found that: (1) Syntex owned
and operated the Newport, Tennessee plant before the
Respondent purchased it in June 1984; (2) the Re-
spondent used the same plant and equipment and em-
ployed the same supervisors and employees as Syntex;
(3) the Union achieved majority status based on the
number of former Syntex employees it hired by April
26, 1985, at which time the Respondent employed a
representative complement of employees and the plant
was fully operational; and (4) there were no dif-
ferences in the Respondent’s and Syntex’s chemical
production that were significant enough to affect the
employees’ representational desires. Finally, contrary
to the Respondent’s present denials of allegations relat-
ing to the unit and its obligation to bargain, the Board
1025GREAT LAKES CHEMICAL CORP.
2 This unit finding, contained in the body of the judge’s decision, which the
Board adopted in Great Lakes I, is more detailed than the unit description set
forth in the judge’s recommended Order and notice, also adopted in that deci-
sion. The latter unit description does not specifically refer to laboratory, envi-
ronmental, and instrument technicians, but includes these job classifications
comprehensively as ‘‘all production, maintenance, and laboratory employees’’
and does not specify that development technicians are within the exclusion
provided for technical employees. In the instant proceeding, the Respondent
is estopped to deny the detailed unit finding contained in Great Lakes I and,
in any event, does not dispute the composition of the unit alleged in the com-
plaint in terms of its inclusion or exclusion of specific job classifications.
3 In general, a factual finding that was necessary to support the judgment
in a prior proceeding will bar relitigation on that issue in a subsequent pro-
ceeding involving the same parties. See Montana v. U.S., 440 U.S. 147, 153
(1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 and fn. 5 (1979);
Sabine Towing & Transportation Co., 263 NLRB 114, 120–122 (1982); Beth-
lehem Steel Corp., 283 NLRB 254, 255 fn. 2 (1987); cf. T & W Fashions,
291 NLRB 137, 139 fn. 1 (1988).
4 In Great Lakes I, the Board found that the Respondent and C & N General
Services, Inc. (C & N), which furnished ‘‘temporary’’ employees to the Re-
spondent, were joint employers, and the Board included the C & N employees
in the appropriate unit. In the instant case, the Respondent argues that it is
entitled to a hearing in order to present evidence that it contends will show
that the Great Lakes I joint employer and unit findings are no longer appro-
priate. Specifically, the Respondent contends that ‘‘[s]ince the fall of 1989,’’
the Respondent has replaced C & N with a different temporary employee
source, S & W Security & General Services, Inc. (S & W), which resulted
from the merger of C & N with another company.
In the ‘‘fall of 1989,’’ Great Lakes I was pending before the Board, but
the Respondent did not bring to the Board’s attention the evidence it now
claims bears on the joint employer and unit issues. Accordingly, to the extent
the Respondent is attempting to litigate here matters that should have been
raised in Great Lakes I, its request for a hearing is untimely. See NLRB v.
Atlas Microfilming, 753 F.2d 313, 319–320 (3d Cir. 1985).
Furthermore, the question of whether ‘‘temporary’’ employees furnished by
another employer are part of the appropriate unit is not central to the resolu-
tion of this case. The unlawful refusal to bargain with the Union occurred
years before the alleged changed circumstances. In addition, the Respondent
has not claimed that the laid-off employees were ‘‘temporary’’ employees sup-
plied by S & W. On the contrary, the Respondent admits the complaint allega-
tions that it unilaterally laid off five of ‘‘its . . . employees.’’ Accordingly,
we find that the matter the Respondent raises is suitable for resolution at the
compliance stage of this proceeding, and the Respondent may present its evi-
dence at that time.
in Great Lakes I adopted the judge’s findings that after
Syntex purchased the Newport plant in 1974—and in-
deed before the purchase—successive collective-bar-
gaining agreements, including the latest one dated
April 4, 1983, to April 4, 1986, have covered employ-
ees in the following unit:
All production and maintenance employees, lab-
oratory technicians, environmental technicians and
instrument technicians employed by the Employer
at its Newport, Tennessee facility, but excluding
all office clerical employees, professional employ-
ees, technical employees including development
technicians, guards and supervisors as defined in
the Act.2
These controlling findings establish beyond dispute
in the instant case that the Respondent violated Section
8(a)(5) and (1) by refusing to bargain with the Union.
The Board’s findings in Great Lakes I—in conjunction
with the Respondent’s admissions that it unilaterally
laid off employees Tommy McGaha and Gary Watts
on October 6, employees Larry Rines and Eugene
Lawson on October 7, and employee Bartley Thornton
on October 8, 1989, without notification to and bar-
gaining with the Union—also establish that the Re-
spondent violated Section 8(a)(1) and (5) by failing to
bargain with the Union about these layoffs and their
effects on employees in the above-described unit. Be-
cause the factual findings in Great Lakes I were fully
and fairly litigated and necessarily decided in that deci-
sion, the Respondent is collaterally estopped from re-
litigating the facts supporting these allegations of the
complaint in the instant proceeding.3 We therefore find
that the Respondent has not raised any issue that is
properly litigable in this unfair labor practice pro-
ceeding.4 Accordingly, we grant the Motion for Sum-
mary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, is engaged
in the manufacture of chemical products at its facility
in Newport, Tennessee, where it annually sells and
ships finished products valued in excess of $50,000 di-
rectly to customers located outside the State of Ten-
nessee. We find that the Respondent is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Syntex maintained a facility at Newport, Tennessee,
where it was engaged in the production of chemical
products until June 1, 1984. At that time the Respond-
ent assumed the chemical production facility and
began operations at the premises formerly occupied by
Syntex, using equipment formerly used by Syntex, and
engaging in substantially the same business of oper-
ating a chemical production facility. The Respondent
employs substantially the same supervisors as were
formerly employed by Syntex and employs a majority
of former Syntex employees in the following appro-
priate unit:
All production and maintenance employees, lab-
oratory technicians, environmental technicians and
instrument technicians employed by the Respond-
ent at its Newport, Tennessee facility, but exclud-
ing all office clerical employees, professional em-
ployees, technical employees, including develop-
ment technicians, guards and supervisors as de-
fined in the Act.
We find that the Respondent is a successor employer
to Syntex. Great Lakes Chemical Corp., 298 NLRB
615 (1990).
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If 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 Rela-
Since about September 17, 1970, successive collec-
tive-bargaining agreements, including an agreement ef-
fective from April 4, 1983, to April 3, 1986, have cov-
ered the employees in the unit set forth above. At all
material times, the Union, by virtue of Section 9(a) of
the Act, has been, and is, the exclusive representative
of all employees in that unit for the purpose of collec-
tive bargaining.
About February 11, 1985, and at times thereafter, in-
cluding about December 9, 1985, the Union has re-
quested the Respondent to bargain collectively with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment of unit em-
ployees. Since April 26, 1985, and at all times there-
after, the Respondent has refused the Union’s requests.
On October 6, 1989, the Respondent unilaterally laid
off employees Tommy McGaha and Gary Watts; on
October 7, 1989, employees Larry Rines and Eugene
Lawson; and on October 8, 1989, employee Bartley
Thornton, without notification to and bargaining with
the Union. We find that these refusals to bargain and
unilateral layoffs constitute unlawful refusals to bar-
gain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing to bargain with the Union as the exclu-
sive collective-bargaining representative of unit em-
ployees and by laying off employees without bar-
gaining with the Union, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent refused to bargain
with the Union, we shall order it to cease and desist,
to bargain on request with the Union, and, if an under-
standing is reached, to embody the understanding in a
signed agreement. Having found that the Respondent
failed to bargain over the October 6, 7, and 8 layoffs,
we shall order the Respondent to bargain with the
Union concerning those layoff decisions and the ef-
fects of those decisions. The Respondent shall reinstate
employees McGaha, Watts, Rines, Lawson, and Thorn-
ton, and make them whole for any loss of earnings and
benefits resulting from their unlawful layoffs. Adair
Standish Corp., 292 NLRB 890 (1989), enfd. mem. in
pertinent part 914 F.2d 255 (6th Cir. 1990). Backpay
shall be based on the earnings that the employees nor-
mally would have received during the applicable pe-
riod, less any net interim earnings, and shall be com-
puted in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Great Lakes Chemical Corporation, New-
port, Tennessee, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Oil, Chemical and
Atomic Workers International Union, AFL–CIO, Local
3-724, as the exclusive bargaining representative of
employees in the following appropriate unit:
All production and maintenance employees, lab-
oratory technicians, environmental technicians and
instrument technicians employed by the Respond-
ent at its Newport, Tennessee facility, but exclud-
ing all office clerical employees, professional em-
ployees, technical employees, including develop-
ment technicians, guards and supervisors as de-
fined in the Act.
(b) Unilaterally laying off employees without pro-
viding the Union with notice and an opportunity to
bargain about the decisions to lay off employees and
the effects of those decisions.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the above-de-
scribed unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment, and, if an understanding is reached, embody
the understanding in a signed agreement.
(b) On request, bargain with the Union concerning
the decisions to lay off employees on October 6, 7,
and 8, 1989, and the effects of those decisions.
(c) Offer those employees laid off on October 6, 7,
and 8, 1989, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of those
layoffs, in the manner set forth in the remedy section
of this decision.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its facility in Newport, Tennessee, copies
of the attached notice marked ‘‘Appendix.’’5 Copies of
1027GREAT LAKES CHEMICAL CORP.
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Oil, Chemical
and Atomic Workers International Union, AFL–CIO,
Local 3-724 as the exclusive representative of the em-
ployees in the following bargaining unit:
All production and maintenance employees, lab-
oratory technicians, environmental technicians and
instrument technicians employed by us at our
Newport, Tennessee facility, but excluding all of-
fice clerical employees, professional employees,
technical employees, including development tech-
nicians, guards and supervisors as defined in the
Act.
WE WILL NOT unilaterally lay off employees without
providing the Union with notice and an opportunity to
bargain about the decisions to lay off employees and
the effects of those decisions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the
employees in the above-described unit with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment, and WE WILL put in writing and
sign any agreement reached.
WE WILL, on request, bargain with the Union con-
cerning the decisions to lay off employees on October
6, 7, and 8, 1989, and the effects of those decisions.
WE WILL offer those employees laid off on October
6, 7, and 8, 1989, immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and make them whole for any loss of
earnings and other benefits suffered as a result of those
layoffs, in the manner set forth in the remedy section
of the Board’s decision.
GREAT LAKES CHEMICAL CORPORATION