Paramount Metal & Finishing Co., Inc .

National Labor Relations Board - Board Decisions

May 6, 1976

223 N.L.R.B. 1337 (N.L.R.B. 1976)

PARAMOUNT METAL AND FINISHING CO., INC. 1337
Paramount Metal & Finishing Co., Inc . and Para-
mount Plating Co., Inc. and Teamsters Local
Union No. 408, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case 22-CA-6556
May 6, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a charge filed on August 28, 1975, by Team-
sters Local Union No. 408, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union,
and duly served on Paramount Metal & Finishing
Co., Inc. and Paramount Plating Co., Inc., herein
called the Respondent, the Acting General Counsel,
hereafter General Counsel, of the National Labor
Relations Board, by the Regional Director for Re-
gion 22, issued a complaint and notice of hearing on
October 6, 1975, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 pro-
ceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 23, 1975, fol-
lowing a Board election in Case 22-RC-6203, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about August 11, 1975, 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 October 15, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. The Respondent ad-
mits all of the factual allegations of the complaint,
except the conclusionary paragraphs which allege
Official notice is taken of the record in the representation proceeding,
Case 22-RC-6203, 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 (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);
Follett Corp., 164 NLRB 378 (1967), enfd . 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
that the Union is now, and has been, the majority
representative of Respondent's employees, and that
Respondent refused to bargain in violation of Sec-
tion 8(a)(5) and (1) of the Act.2
On December 22, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and memorandum in support
thereof, with exhibits attached, submitting, in effect,
that Respondent's answer to the complaint raises no
factual issues warranting a hearing and, therefore, re-
quests the Board to grant the Motion for Summary
Judgment. Subsequently, on January 20, 1976, 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. Thereafter, Respondent filed
an affidavit in opposition to Motion for Summary
Judgment, with exhibits; the Union filed an opposi-
tion thereto; and the Respondent replied to the
Union's opposition.
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
As reflected above, the Respondent admits all of
the factual allegations of the complaint, except the
conclusionary paragraphs therein. The thrust of
Respondent's affidavit in opposition to Motion for
Summary Judgment is that, after the demand to bar-
gain by the Union, the employees filed charges with
the Board alleging that they did not want to be repre-
sented by the Union and that this circumstance con-
stitutes "unusual circumstances" within the Ray
Brooks decision.' The Respondent admits that the
charges were investigated by the Regional Director,
2 By its answer , Respondent also denies pars. 1, 15, and 16 of the com-
plaint . With respect to par. 1 , Exh. 15 submitted with the General Counsel's
Motion for Summary Judgment is a copy of the charge filed on August 8,
1975, Case 22-CA-6556, with a signed return receipt from the U.S. Postal
Service, served on the Respondent by certified mail.
With respect to pars. 15 and 16 of the complaint which allege that the
Union has requested and the Respondent has refused to bargain , two letters
dated July 24 and August 14 , 1975, Exits. 9 and 11 , respectively , contain
requests made by the Union to the Respondent for bargaining, and an
undated letter received on or about August 11, 1975, and a letter dated
August 21, 1975, Exhs. 10 and 12, respectively, sent by the Respondent to
the Union set forth Respondent 's refusal to bargain . Moreover , in its affida-
vit in opposition to Motion for Summary Judgment , Respondent notes that
"no demand to bargain was made by [the Union] until the end of July
1975." Accordingly, in view of the above , we find the Respondent's denials
to be frivolous, and we deem these allegations of the complaint to be admit-
ted. Schwartz Brothers, Inc., 194 NLRB 150 (1971); The May Department
Stores Company, 186 NLRB 86 (1970); Carl Simpson Buick, Inc., 161 NLRB
1389 (1966).
3 Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954).
223 NLRB No. 200
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who refused to issue a complaint, but contends that
the Regional Director erroneously applied the Ray
Brooks rule and that it should, therefore, be relieved
from bargaining with the Union 4 Respondent fur-
ther contends that, on or about January 22, 1976, it
requested Local 408 to commence bargaining, with-
out prejudice to Respondent's legal position before
the Board. Respondent urges, therefore, that time for
a bargaining order be reduced "by the lapse of time
from May 23, 1975, the date of certification, to the
end of July, 1975, as well as the period until January
28, 1976 [Exh. A], when the rights of the parties were
in part delineated."
We find no merit in the Respondent's defense to
the refusal to bargain that a majority of the unit em-
ployees did not want to be represented by the Union,
since it is well established that a union which is certi-
fied after a valid representation election has been
conducted by the Board maintains its status as the
exclusive bargaining agent and is presumed to enjoy
the support of a majority of the employees for 1 year
following its certification . Ray Brooks, supra.s Nor
are we persuaded that the 1-year bargaining period
established by Mar Jac Poultry Company, Inc., 136
NLRB 785 (1962), should be reduced for the reasons
proposed by Respondent. The failure to request bar-
gaining immediately after certification does not oper-
ate to reduce the bargaining period since an earlier
request would have proved futile and no bargaining
in fact occurred. Nor does Respondent's appeal from
the General Counsel's refusal to issue a complaint in
a related case, which appeal was not decided until
January 28, 1976, operate to reduce the period for
which bargaining is ordered. In Porta-Kamp Manu-
facturing Company, Inc., 189 NLRB 899, 900 (1971),
the Board reiterated its view that the pendency of
collateral litigation does not suspend the duty to bar-
gain under Section 8(a)(5). Accordingly, we find that
the Respondent has failed to establish such "unusual
circumstances" as would satisfactorily rebut the
Union's presumption of continued majority nor is
there any basis for reducing the time for any bargain-
ing order granted.
It is well settled that in the absence of newly dis-
4 The Respondent filed an appeal from the Regional Director's refusal to
issue a complaint in Case 22-CB-3099. On January 28, 1976, the office of
the General Counsel denied the appeal relying on the Ray Brooks decision
and the rationale expressed therein . After the refusal to issue a complaint.
the Respondent requested the Union . without prejudice , to commence bar-
gaining on the ground that the rights of the parties had been partially de-
termined by the denial of the appeal by the office of the General Counsel.
The Union rejected this request on the ground that an appropriate bargain-
ing order should issue requiring the Respondent, inter alia, to bargain for
the appropriate period . In view of the limitations imposed by the Respon-
dent in its offer to bargain with the Union, we find it necessary to issue an
appropriate bargaining order herein.
See also Cocker Saw Company. Inc., 186 NLRB 893 (1970). enfd. 446
F.2d 870 (C.A. 2, 1971): Williams Energy Company, 218 NLRB 1080 (1975).
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding .6
All issues raised by the Respondent in this pro-
ceeding, except as to alleged "unusual circum-
stances" which we have found to be without merit,
were or could have been litigated in the prior repre-
sentation 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 prac-
tice proceeding. We shall, accordingly, grant the Mo-
tion for Summary Judgment.'
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Paramount Metal & Finishing Co., Inc., 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 here-
in, Paramount Metal & Finishing Co., Inc., has
maintained its principal office and place of business
at 689 South 16th Street, Newark, New Jersey, and is
now, and at all times material herein has been con-
tinuously engaged at said place of business in the
manufacture, sale, and distribution of metal platings
and related products. Paramount Metal and Finish-
ing Co., Inc., Newark plant, is its only facility in-
volved in this proceeding.
Paramount Plating Co., Inc., 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, Para-
mount Plating Co., Inc., has maintained its principal
office and place of business at 689 South 16th Street,
Newark, New Jersey, and is now, and at all times
material herein has been, continuously engaged at
said place of business in the manufacture, sale, and
distribution of metal platings and related products.
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).
1 In these circumstances, we find it unnecessary to take judicial notice, as
urged by counsel for the General Counsel , to show Respondent 's motivation
in the instant matter, of the Administrative Law Judge 's Decision, Cases 22-
CA-6265 and 22-CA-66325 , in which he found Respondent violated Sec.
8(aXI) and (3) of the Act.
PARAMOUNT METAL AND FINISHING CO., INC.
Paramount Plating Co., Inc., Newark plant, is its
only facility involved in this proceeding.
Paramount Metal & Finishing Co., Inc. and Para-
mount Plating Co., Inc., are now, and at all times
material herein have been, affiliated business enter-
prises with common ownership, directors, officers,
and operators. Paramount Metal & Finishing Co.,
Inc. and Paramount Plating Co., Inc., constitute, and
at all times material herein have constituted , a single-
integrated business enterprise, with principal offices
located at 689 South 16th Street, Newark, New Jer-
sey, which formulates and administers a common la-
bor policy affecting the employees of the aforenamed
corporations. Paramount Metal & Finishing Co., Inc.
and Paramount Plating Co., Inc., are now, and at all
times material herein have been, a single employer
within the meaning of Section 2(2) of the Act.
In the course and conduct of Respondent's busi-
ness 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 Newark
plant, products valued in excess of $50,000, of which
products valued in excess of $50,000 were shipped
from said Newark plant in interstate commerce di-
rectly to States of the United States other than the
State of New Jersey.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here
in, 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 juris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 408, a/w Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
q I. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All production and maintenance employees, in-
cluding shipping and receiving employees, driv-
ers, and warehousemen employed by Respon-
dent at its Newark, New Jersey, location, but
1339
excluding all office clerical employees, profes-
sional employees, salesmen, guards, and supervi-
sors as defined in the Act.
2. The certification
On October 25, 1974, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted pursuant to a Stipulation for Certification
Upon Consent Election, under the supervision of the
Regional Director for Region 22, designated the
Union as their representative for the purpose of col-
lective bargaining with the Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on May 23, 1975,
and the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about July 24, 1975, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about August 11, 1975, 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 August 11, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 opera-
tions described in section 1, above, have a close, inti-
mate, 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 mean-
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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., supra;
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. Paramount Metal & Finishing Co., Inc. and
Paramount Plating Co., Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Teamsters Local Union No. 408, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding shipping and receiving employees, drivers,
and warehousemen employed by Respondent at its
Newark, New Jersey, location, but excluding all of-
fice clerical employees, professional employees,
salesmen, 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 May 23, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 August 11, 1975, 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 Re-
spondent in the appropriate unit, 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, Respondent
has interfered with, restrained, and coerced, and is
interfering 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 engaging in unfair labor practices within the mean-
ing 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 Re-
lations Board hereby orders that Respondent, Para-
mount Metal & Finishing Co., Inc. and Paramount
Plating Co., Inc., Newark, 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 con-
ditions of employment with Teamsters Local Union
No. 408, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees, in-
cluding shipping and receiving employees, driv-
ers, and warehousemen employed by Respon-
dent at its Newark, New Jersey, location, but
excluding all office clerical employees, profes-
sional employees, salesmen, guards, and supervi-
sors 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 Newark, New Jersey, location, cop-
ies of the attached notice marked "Appendix." 8 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 22, after being duly signed by
8In 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."
PARAMOUNT METAL AND FINISHING CO., INC. 1341
Respondent 's representative , shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous place , including all places where no-
tices to employees are customarily posted. Reason-
able 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 22, in
writing , within 20 days from the date of this Order,
what steps have been take to comply herewith.
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
Teamsters Local Union No. 408, a/w Interna-
tional 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 shipping and receiving employees,
,drivers, and warehousemen employed by Re-
spondent at its Newark, New Jersey, location,
but excluding all office clerical employees,
professional employees, salesmen, guards, and
supervisors as defined in the Act.
PARAMOUNT METAL & FINISHING CO., INC.
AND PARAMOUNT PLATING CO., INC.