Pabco Insulation

National Labor Relations Board - Board Decisions

Jun 10, 1980

249 N.L.R.B. 1131 (N.L.R.B. 1980)

PABCO INSULATION 1131
Pabco Insulation, Division of Louisiana Pacific Cor-
poration and United Paperworkers International
Union, AFL-CIO. Case 15-CA-7564
June 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on February 5, 1980, by
United Paperworkers International Union, AFL-
CIO, herein called the Union, and duly served on
Pabco Insulation, Division of Louisiana Pacific
Corporation, herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 15, issued a
complaint on February 6, 1980, against Respon-
dent, 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 and complaint and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding.
The complaint alleges in substance that on Sep-
tember 28, 1979, following a Board election in Case
15-RC-6377, the Union was duly certified as the
exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
17, 1979, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so, and that,
since on or about December 12, 1979, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to supply the Union with
certain requested information relevant to and nec-
essary for the Union's performance as the collec-
tive-bargaining representative of the unit employ-
ees. On February 20, 1980, Respondent filed its
answer to the complaint admitting in part, and den-
ying in part, the allegations in the complaint.
On March 27, 1980, counsel for the General
Counsel filed directly with the Board a "Motion
To Transfer and Continue Case Before the Board
and Motion for Summary Judgment." Subsequent-
Official notice is taken of the record in the representation proceed-
ing, Case 15-RC-6377, as the term "record" is defined in Sees. 102.68
and 102.6
9
(g) of the Board's Rules and Regulations, Series 8, as amended
See LTV Elecrrosysterns. 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. Penello, 269 FSupp. 573
(D.C.Va 1967); Follerr Corp.. 164 NLRB 78 (1967), enfd 397 F 2d 91
(7th Cir. 1968); Sec 9(d) of the NLRA, as amended
249 NLRB No. 115
ly, on April 2, 1980, 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 a response to
Notice To Show Cause.
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
In its answer to the complaint, Respondent in
substance contends that the certification is invalid
for the reasons stated in its exceptions to the Hear-
ing Officer's Report and Recommendations on
Challenged Ballots.
A review of the record in the representation pro-
ceeding, Case 15-RC-6377, discloses that an elec-
tion directed by the Regional Director was held on
December 14, 1978, there were 47 votes cast for,
and 42 cast against, the Union, and 5 challenged
ballots, a number sufficient to affect the results of
the election. The Acting Regional Director recom-
mended overruling the three challenged ballots of
Critton, Ogden, and Roberts; sustaining the chal-
lenged ballot of Doughty; and, if the Board did not
agree with his conclusion on Doughty's ballot,
holding a hearing on the remaining challenged
ballot of Higginbotham provided that ballot was
determinative after the three overruled ballots were
opened and counted. Respondent filed exceptions
to the Acting Regional Director's recommendation
regarding Doughty's and Higginbotham's ballots;
no exceptions were filed to the three challenged
ballots that were overruled. The Board, on April
24, 1979, in an unpublished decision, adopted the
Acting Regional Director's report, except it found
that a hearing was warranted to determine
Doughty's status, and directed that a hearing be
held to resolve both Doughty's and Higginboth-
am's ballots if those challenged ballots remained
determinative after the other three ballots were
opened and counted. The revised tally of ballots
showed that Doughty's and Higginbotham's ballots
were determinative, therefore a hearing was held.
On July 17, 1979, the Hearing Officer recommend-
ed that Doughty's ballot be sustained and Higgin-
botham's ballot be overruled. Respondent filed ex-
ceptions to the Hearing Officer's report. The
Board, on September 28, 1979, in an unpublished
decision, adopted the Hearing Officer's report and
certified the Union as the exclusive collective-bar-
PAlCO INSULATON 1131
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining representative of Respondent's employees
in the unit found appropriate.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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
With the exception of its defense to the allega-
tion that it has refused to supply the Union with
certain requested information, all issues raised by
Respondent in this proceeding were or could have
been litigated in the prior representation proceed-
ing, and Respondent does not offer to adduce at a
hearing any newly discovered or previously un-
available evidence, nor does it allege that any spe-
cial circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding.
With respect to the request to supply informa-
tion, Respondent concedes that the Union has re-
quested information concerning employee names,
job classifications, rates of pay, seniority dates,
benefits, and plant rules for the purpose of negotia-
tions. As the collective-bargaining representative
for employees within the appropriate unit, the
Union is entitled to such information. Consequent-
ly, we find that Respondent's denial to the allega-
tion of refusal to supply information is without
merit.
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
Pabco Insulation, Division of Louisiana Pacific
Corporation, a Delaware corporation, has an office
and place of business located in Grambling, Louisi-
ana, where it is engaged in the manufacture and
sale of high temperature insulation. During a repre-
sentative 12-month period, Respondent, in the
course and conduct of its business operations, pur-
chased and received at its Grambling, Louisiana,
facility goods and materials valued in excess of
$50,000, directly from points located outside the
State of Louisiana.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
2 See Pittsburgh Plate Glass Co. v. NL.R.B., 313 U.S. 146, 162(1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.6 9 (c).
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.
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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
production and maintenance employees includ-
ing the relief foreman and the maintenance
working foreman; but excluding the shift fore-
men, the finishing foreman, the shipping clerk,
the quality control supervisor, office clerical
employees, watchmen and/or guards and su-
pervisors as defined in the Act.
2. The certification
On December 14, 1978, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 15, designated
the Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining represen-
tative of the employees in said unit on September
28, 1979, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 12, 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. Com-
mencing on or about December 17, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
On or about December 12, 1979, the Union re-
quested Respondent to furnish it with certain infor-
mation relevant to and necessary for the Union's
performance as the collective-bargaining represen-
PABCO INSULATION 1133
tative of the unit employees. Since on or about De-
cember 17, 1979, and, at all times thereafter to
date, Respondent has refused, and continues to
refuse, to supply the Union with the requested in-
formation.
Accordingly, we find that Respondent has, since
December 17, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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. We further find that Respondent
has, since December 17, 1979, and at all times
thereafter, refused to supply the Union with certain
requested information necessary for and relevant to
the Union's performance as the collective-bargain-
ing representative of the unit employees, and, by
such refusal, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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. We shall further order Respondent to
supply the Union, upon request, with information
necessary for and relevant to the Union's perfor-
mance of its function as the collective-bargaining
representative of the unit employees.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (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. Pabco Insulation, Division of Louisiana Pacif-
ic Corporation, is an employer engaged in com-
merce 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 in-
cluding the relief foreman and the maintenance
working foreman; but excluding the shift foremen,
the finishing foreman, the shipping clerks, the qual-
ity control supervisor, office clerical employees,
watchmen and/or guards and supervisors as de-
fined 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 28, 1979, 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 December 17, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, and to
supply the Union with certain requested informa-
tion necessary for and relevant to the Union's per-
formance as the collective-bargaining representa-
tive of the unit employees, Respondent has en-
gaged 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 and to
supply certain requested information, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employ-
ees 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
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 Re-
PABCO INSULATION 33
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations Board hereby orders that the Respondent,
Pabco Insulation, Division of Louisiana Pacific
Corporation. Grambling, Louisiana, 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 Paper-
workers International Union, AFL-CIO, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees in-
cluding the relief foreman and the maintenance
working foreman; but excluding the shift fore-
men, the finishing foreman, the shipping clerk,
the quality control supervisor, office clerical
employees, watchmen and/or guards and su-
pervisors as defined in the Act.
(b) Refusing to provide the Union, upon request,
information relevant to and necessary for its per-
formance as the collective-bargaining representa-
tive of the unit employees.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement, and provide the
Union, upon request, information concerning em-
ployee names, job classifications, rates of pay, se-
niority dates, benefits, and plant rules and all other
information relevant to and necessary for the
Union's performance as the collective-bargaining
representative of the unit employees.
(b) Post at its facility in Grambling, Louisiana,
copies of the attached notice marked "Appendix. " 3
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representative, shall be
3 In the event that this Order is enfirced 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enlforcing an
Order of the National Relations Board."
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, de-
faced, 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 here-
with.
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 United Paperworkers International
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT refuse to provide the above-
named Union with information relevant to and
necessary for collective bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 represen-
tative 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 agreement. The bargaining unit is:
All production and maintenance employees
including the relief foreman and the mainte-
nance working foreman; but excluding the
shift foremen, the finishing foreman, the
shipping clerk, the quality control supervi-
sor, office clerical employees, watchmen
and/or guards and supervisors as defined in
the Act.
PABCO INSUI ATION, DIVISION OF
LOUISIANA PACIFIC CORPORATION