Gulf Soap Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1972

195 N.L.R.B. 963 (N.L.R.B. 1972)

GULF SOAP CORP. - 963
Gulf Soap Corporation and Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL-
CIO, Local P-591. Case 15-CA-4290
March 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on November 16, 1971, by
Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Local P-59 1, herein called
the Union, and duly served on Gulf Soap Corporation,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 15, issued a complaint on Novem-
ber 30, 1971, against Respondent, alleging that Re-
spondent 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
a Trial Examiner 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 29, 1971,
following a Board election in Case 15-RC-4576, 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 8, 1971, 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
December 10, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On December 17, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 28,
1971, the Board issued an order transferring the pro-
ceeding 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.
' Official notice is taken of the record in the representation proceeding,
Case 15-RC-4576, 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 I51, Intertype Co. v. Penello,
269 F Supp. 573 (D C Va., 1967), Follett Corp., 164 NLRB 378, enfd 397
F.2d 91 (CA 7, 1968), Sec 9(d) of the NLRA.
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
The Respondent's Answer puts in issue only the
Union's status as exclusive bargaining representative
for the unit employees and the conclusions of law
drawn from its acts. In its Answer the Respondent also
seeks a hearing. In turn, the General Counsel contends
that the only issue raised is the validity of the election
and the consequent certification which the Respondent
is precluded from relitigating. We agree.
The Union received a majority of the ballots in an
election held on April 2, 1971, pursuant to a Stipulation
for Certification Upon Consent Election. The Respond-
ent filed objections to conduct affecting the results of
the election on April 9. The, Respondent objected that
(1) the Union had engaged in conversations with pro-
spective voters at the time of the election, causing them
to refrain from voting; (2) supervisory personnel were
involved in, activity to influence votes for the Union; (3)
the Union made material misrepresentations to em-
ployees concerning the Respondent's volume of busi-
ness, its profits, and the dues employees would pay if
the Union were certified; and (4) that the Board Notice
of Election did not adequately describe the categories
of employees that were eligible to vote.
In a Report on Objections issued June 11 after inves-
tigation of the issues, the Regional Director found the
Respondent's objections to be without merit and
recommended that. they be overruled. He found that
there was no evidence to establish that the Union
caused prospective voters to refrain from voting; that
the participation of supervisors in the union campaign
was limited and the Respondent had not disavowed
their activities; that the Union's alleged misrepresenta-
tions did not have a material impact on the election;
and that the Respondent did not produce evidence to
show that any eligible voter had been precluded from
voting.
The Respondent filed timely exceptions to the report,
arguing that the, Regional Director should have con-
ducted a hearing on the objections, rather than relying
on statements and affidavits, and reasserting the
grounds presented in its objections. On September 29,
1971, the Board issued its Decision and Certification of
Representative adopting the findings and recommenda-
tions of the Regional Director's report and certifying
the Union. In that Decision, the Board considered the
Respondent's argument for a hearing and concluded
195 NLRB No. 166
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Regional Director had not erred in deciding
that a hearing was not necessary.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.' Since all the issues raised
by the Respondent in this proceeding were or could
have been litigated in the prior representation proceed-
ing, we find that the Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding.
In response to the Notice To Show Cause the Re-
spondent contends that the Board should reconsider
whether to direct a hearing on the issues raised by its
objections in the light of additional evidence presented.
The Respondent's alleged evidence is an affidavit of its
president stating that its profits for 1970 were less than
$50,000, a fact that no one outside the Company could
have determined accurately before September 1971,
well after the election. On this point we agree with the
General Counsel that the evidence proffered by the
Respondent is not material to a resolution of its objec-
tions since the Regional Director, in effect, found that
the voters had not been influenced by the Union's mis-
representations. No hearing is required where the evi-
dence presented does not raise a substantial and
material issue .' Accordingly, we grant the General
Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of
North America , AFL-CIO, Local P-591, 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 consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding truckdrivers, employed at the Respond-
ent's Violet, Louisiana, facility, excluding all office
clerical employees, professional employees, fore-
men, salesmen, guards, and/or watchmen and
supervisors as defined in the Act.
2. The certification
On April 12, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 15, designated the Union as their represent-
ative 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 September 29, 1971, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Louisiana corporation engaged
in the manufacture of tallow at its principal office and
place of business in Violet, Louisiana. During the past
12 months, a representative period, the Respondent in
the course of its business has sold and delivered goods
valued in excess of $50,000 directly to points located
outside the State of Louisiana.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
' 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).
' Janler Plastic Mold Corp., 191 NLRB No. 24; Lipman Motors, Inc., 187
NLRB No. 36; Crest Leather Manufacturing Corp., 167 NLRB 1085, 1086,
In. 1 (1967).
B. The Request to Bargain and Respondent's Refusal
Commencing on or about October 14 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. Commencing on or about Octo-
ber 28 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
representative for collective bargaining of all employees
in said unit.
Accordingly, we find that the Respondent has, since
October 28 and at all times thereafter, refused to bar-
gain collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate 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.
GULF SOAP CORP. 965
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES appropriate unit for the purpose of collective bargain-
UPON COMMERCE ing within the meaning of Section 9(a) of the Act.
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial.period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate 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. Gulf Soap Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO, Local P-591, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees, in-
cluding truckdrivers, employed at the Respondent's Vi-
olet, Louisiana, facility, excluding all office clerical em-
ployees, professional employees, foremen, salesmen,
guards, and/or watchmen 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 September 29, 1971, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
5. By refusing on or about October 28, 1971, 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 Respond-
ent 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Gulf Soap Cor-
poration, 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 Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO, Lo-
cal P-59 1, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees, in-
cluding truckdrivers, employed at the Respond-
ent's Violet, Louisiana, facility, excluding all office
clerical employees, professional employees, fore-
men, salesmen, guards, and/or watchmen and
supervisors 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Violet, Louisiana, facility copies of the
attached notice marked "Appendix."` Copies of said
° In the event this Order is enforced by a Judgment of a United States
(Cont.)
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional, Director for
Region 15, after being duly signed by Respondent's
representative, shall be posted by Respondent immedi-
ately 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
Respondent to insure that said notices are, not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region -15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
the exercise of the rights guaranteed them by Sec-
tion 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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance em-
ployees, including truckdrivers, employed at
the Respondent's Violet, Louisiana, facility,
excluding all office clerical employees, profes-
sional employees, foremen, salesmen, guards,
and/or watchmen and supervisors as defined
in the Act.
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 Amal-
gamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Local P-591, 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
GULF SOAP
CORPORATION
(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 compliance
with its provisions may be directed to the Board's
Office, T6024 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113, Telephone
504-527-6361.