Kemp Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1977

229 N.L.R.B. 1219 (N.L.R.B. 1977)

KEMP INDUSTRIES, INC.
Kemp Industries, Inc. and Local 11, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 22-CA-
7456
June 3, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on February 4, 1977, by Local
11, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Kemp
Industries, Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 22,
issued a complaint and notice of hearing on March 8,
1977, 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 January 14,
1977, following a Board election in Case 22-RC-
6829, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about January 24, 1977, 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 March 18, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint, and
submitting an affirmative defense. The Respondent
admits all of the factual allegations of the complaint,
including its refusal to recognize and bargain with
the Union. As an affirmative defense, Respondent in
its answer contends that the Union's certification is
invalid, basing this contention on the same matters
I Official notice is taken of the record in the representation proceeding,
Case 22-RC-6829, as the term "record" is defined in Secs. 102.68 and
1
0
2.69(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 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 The bnef and exceptions are duplicates of those that Respondent
229 NLRB No. 182
that it raised in the underlying representation
proceeding, Case 22-RC-6829.
On April 11, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment and a memorandum in support thereof,
with exhibits attached, submitting, in effect, that
Respondent, in its answer, seeks to relitigate issues
already decided in the underlying representation
proceeding, and raises no issues of fact requiring a
hearing. Subsequently, on April 19, 1977, 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. Respondent thereafter filed an opposi-
tion to the Motion for Summary Judgment, a brief,
and exceptions.2
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
As reflected above, the Respondent admits all of
the factual allegations of the complaint, including its
refusal to recognize and bargain with the Union
which had been certified as the collective-bargaining
representative of the employees described in the
complaint. In its affirmative defense to the com-
plaint, the Respondent attacks the Board's Decision
and Certification of Representative issued on Janu-
ary 14, 1977. In that decision the Board, after having
considered the Respondent's objection to an election
held on September 23, 1976,3 and the Acting
Regional Director's report recommending that the
Respondent's objection be overruled in its entirety,
and, after having reviewed the record in light of the
Respondent's exceptions and supporting brief and
the Union's reply brief, adopted the Acting Regional
Director's findings and recommendations. The
Board concluded that the Respondent's exceptions
as to the alleged misrepresentations raised no
material or substantial issues of fact or law which
would warrant reversal of the Acting Regional
Director's recommendations or require a hearing and
certified the Union. 4 Thus, the Respondent, by
submitted in the prior representation proceeding and constitute a part of the
record in that proceeding.
3 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 28 for, and 24 against, the Union, and
there were no challenged ballots.
4 In the original representation proceeding Member Penello relied on his
rationale in his dissenting opinions in Ereno Lewis, 217 NLRB 239 (1975),
and Medical Ancillary Services, Inc., 212 NLRB 582 (1974), and Member
Murphy agreed that under any view of the applicability or validity of the
(Continued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attacking the legal effect or validity of the Board's
Decision and Certification of Representative, is
attempting to relitigate the same issues which it
raised in the representation proceeding, Case 22-
RC-6829.
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.5
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 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, and has been at all times material
herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of New
Jersey. At all times material herein, Respondent has
maintained its principal office and plant at 280
Marshall Hill Road, West Milford, New Jersey, and
is now, and at all times material herein has been
continuously, engaged at said plant in the manufac-
ture, sale, and distribution of hydraulic pumps,
motors, valves, and related products. Respondent's
West Milford plant is its only facility involved in this
proceeding. In the course and conduct of Respon-
dent's business operations during the preceding 12
months, said operations being representative of its
operations at all times material herein, Respondent
caused to be manufactured, sold, and distributed at
said West Milford plant products valued in excess of
$50,000 of which products valued in excess of
$50,000 were shipped from said West Milford plant
in interstate commerce directly to States of the
United States other than the State of New Jersey.
Board's rule in Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962). in
finding that the alleged misrepresentations did not warrant setting aside the
election or directing a hearing. The Board has, subsequently, overruled
Hollywood Ceramics in a recent decision, Shopping Kart Food Market, 228
NLRB 1311 (1977), Chairman Fanning and Member Jenkins dissenting. We
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.
11. THE LABOR ORGANIZATION INVOLVED
Local 11, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
I1I. 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,
including shipping and receiving employees and
truckdrivers employed by the Respondent at its
280 West Marshall Hill Road, West Milford, New
Jersey, location, but excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On September 23, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 22, designated the
Union as their representative 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
January 14, 1977, 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 January 20, 1977, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
find that our findings in the original representation proceeding are not
affected by our decision in Shopping Kart.
5 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c), as
amended.
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KEMP INDUSTRIES, INC.
the employees in the above-described unit. Com-
mencing on or about January 24, 1977, 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-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since January 24, 1977, 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
(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 1, 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. Kemp Industries, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 11, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including shipping and receiving employees and
truckdrivers employed by the Respondent at its 280
West Marshall Hill Road, West Milford, New Jersey,
location, 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 January 14, 1977, 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 January 24, 1977, 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)(1) of the Act.
7. The aforesaid 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
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Kemp Industries, Inc., West Milford, New Jersey, 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 Local 11, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees,
including shipping and receiving employees and
truckdrivers employed by the Respondent at its
280 West Marshall Hill Road, West Milford, New
Jersey, location, but excluding all office clerical
employees, professional employees, guards 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
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 West Milford, New Jersey, plant,
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 22, 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-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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."
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 Local
11, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, 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 employees,
including shipping and receiving employees
and truckdrivers employed by the Respon-
dent at its 280 West Marshall Hill Road,
West Milford, New Jersey, location, but
excluding all office clerical employees, pro-
fessional employees, guards and supervisors
as defined in the Act.
KEMP INDUSTRIES, INC.
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