Manufacturer's Packaging Co.

National Labor Relations Board - Board Decisions

Feb 15, 1980

247 N.L.R.B. 1117 (N.L.R.B. 1980)

MANUFACTURER'S PACKAGING CO.
Manufacturer's Packing Co., Inc. and Local 387,
International Union of Operating Engineers, AFL-
CIO. Case 5-CA-11557
February 15, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on October 4, 1979, by Local
387, International Union of Operating Engineers,
AFL-CIO, herein called the Union, and duly served
on Manufacturer's Packaging Co., Inc., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 5, issued a complaint on October 24, 1979,
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 September 7,
1979, following a Board election in Case 5-RC-10726,
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' and that,
commencing on or about September 26, 1979, 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 November 6, 1979, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint, and
asserting an affirmative defense. Respondent admits
that it meets the Board's jurisdictional standards and
that the Union is a labor organization within the
meaning of the Act. It admits that the Union was
certified and has requested Respondent to bargain
with it, and that Respondent has failed to do so.
Respondent denies the conclusory 8(a)(5) and (1)
allegations, and alleges that the Board's failure to
' Official notice is taken of the record in the representation proceeding, Case
5-RC-10726, 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 (4th Cir.
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va. 1967);
Follerr Corp. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
More particularly, Respondent alleges, inter alia. that supervisory
247 NLRB No. 152
afford it a fair and impartial hearing on its objections
was erroneous and therefore the complaint should be
dismissed.
On November 27, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached, submit-
ting, in effect, that Respondent, in its answer, raises no
issues which were not previously presented to and
decided by the Board in the underlying representation
proceeding, and requesting that the Board grant the
Motion for Summary Judgment and issue an appropri-
ate remedial order. Subsequently, on December 4,
1979, 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 has not
filed a response to the Notice To Show Cause.
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, Respondent attacks
the Union's certification on the basis of certain pre-
election conduct by supervisors, which Respondent
alleges improperly influenced the results of the elec-
tion.2
The record reveals that the petition in Case 5-RC-
10726 was filed on February 2, 1979. On March 3,
1979, a Stipulation for Certification Upon Consent
Election was approved by the Regional Director, and
the election was conducted on April 27, 1979. On May
3, 1979, Respondent filed a timely objection to the
election, which the Regional Director overruled in its
entirety on June 11, 1979. Pursuant to timely excep-
tions to the Regional Director's Report on Objec-
tions,' on September 7, 1979, the Board issued a
Decision and Certification of Representative (not
reported in volumes of Board Decisions), in which it
adopted the Regional Director's findings and recom-
mendations and certified the Union as the exclusive
bargaining representative of the employees in the
appropriate unit.'
employees initiated union activity; e.g., solicited authorization cards, and
participated directly and actively in the Union's organization campaign.
' Respondent also filed, on July 2, 1979, a "Motion for Reconsideration of
Regional Director's Decision Overruling Employer's Objections."
' In its affirmative defense, Respondent contended that the Board erred in
not conducting a hearing on Respondent's objection to the election. In
overruling Respondent's objection in Case 5-RC-10726, the Board necessari-
ly found that there were no issues of fact or law warranting a hearing.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.'
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.
Accordingly, we 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 RESPONDENT
Respondent is now, and has been at all times
material herein, engaged in the business of providing
supply and inventory services for the United States
Navy Departments in the Norfolk and Portsmouth,
Virginia, area. During the past 12-month period,
Respondent sold and shipped products valued in
excess of $50,000 to points located directly outside the
Commonwealth of Virginia.
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.
1!. THE LABOR ORGANIZATION INVOLVED
Local 387, International Union of Operating Engi-
neers, 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 Respondent constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees employed by the Employer at its
Norfolk and Portsmouth, Virginia, area loca-
tions, including material handlers, forklift opera-
tors, and validators, but excluding all CRT
operators, subsupervisors, office clerical employ-
ees, guards and supervisors as defined in the Act.
2. The certification
On April 27, 1979, 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 5, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on September 7, 1979, 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 September 19, 1979, and
at all times thereafter, the Union has requested
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 September 26, 1979, and continuing at all
times thereafter to date, 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 Respondent has, since
September 26, 1979, 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.
' 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).
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MANUFACTURER'S PACKAGING CO.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section inl,
above, occurring in connection with its operations
described in section , 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(aX5) 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 representive of all employees in the appropri-
ate 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-dac Poultry Company, Inc., 136 NLRB 785
(1962); Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Manufacturer's Packaging Co., Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 387, International Union of Operating
Engineers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All employees employed by the Employer at its
Norfolk and Portsmouth, Virginia, area locations,
including material handlers, forklift operators, and
validators, but excluding all CRT operators, subsuper-
visors, office clerical employees, guards and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since September 7, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about September 26, 1979, 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(aX5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed 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 the Respondent,
Manufacturer's Packaging Co., Inc., Virginia Beach,
Virginia, 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 387, International Union of
Operating Engineers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All employees employed by the Employer at its
Norfolk and Portsmouth, Virginia, area loca-
tions, including materials handlers, forklift opera-
tors, and validators, but excluding all CRT
operators, subsupervisors, office clerical employ-
ees, 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 understand-
ing is reached, embody such understanding in a signed
agreement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Norfolk and Portsmouth, Virginia,
area locations copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms provided
by the Regional Director for Region 5, 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 Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' 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
387, International Union of Operating Engineers,
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 employees employed by the Employer at its
Norfolk and Portsmouth, Virginia, area loca-
tions, including material handlers, forklift op-
erators, and validators, but excluding all CRT
operators, subsupervisors, office clerical em-
ployees, guards, and supervisors as defined in
the Act.
MANUFACTURER'S PACKAGING CO., INC.
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