Rex-Hide, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1979

241 N.L.R.B. 1178 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rex-Hide, Incorporated and Local 746, United Rub-
ber, Cork, Linoleum & Plastic Workers of America,
AFL-CIO. Case 16-CA-7469
April 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on September 8, 1977, by Lo-
cal 746, United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO, herein called the
Union, and duly served on Rex-Hide, Incorporated,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 16, issued a complaint and notice of
hearing on October 14, 1977, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on August 5, 1977,
following a second Board election in Case 16 RC-
7229, 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 August 8, 1977, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On October 24, 1977, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On November 28, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, to which Respondent filed an
opposition. Subsequently, on December 14, 1977, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to the Notice To Show Cause.
'Official notice is taken 1t' the record in the representation proceeding,
Case 16 RC 7229, 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 Elf, lro.vtemrL. Inc . 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir.
1968), Golden Age BReerge Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969) InierApe Co. v. Penell, 269 F. Supp. 573 (D.C. Va., 1967):
FolletL Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968) Sec.
9(d) of the NLRA as amended.
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 and its opposition to
General Counsel's Motion for Summary Judgment,
Respondent argues, in substance, that the Board
erred in overruling its objections to conduct affecting
the results of the second election. Respondent urges
that a hearing be held on its objections to the second
election or, alternatively, that the results of the first
election be certified. The General Counsel contends
that Respondent is attempting to relitigate issues
which were raised in the representation proceeding
and that it is precluded from doing so here. We find
merit in the General Counsel's position.
A review of the record herein, including that in the
representation proceeding in Case 16-RC-7229,
shows that pursuant to a Stipulation for Certification
Upon Consent Election approved by the Acting Re-
gional Director for Region 16 on June 22, 1976, an
election was held on July 23, 1976, in the stipulated
unit. The tally of ballots showed that of approxi-
mately 63 eligible voters, 59 cast ballots, of which 27
were cast for, and 31 were cast against the Union,
with I challenged ballot, an insufficient number to
affect the results of the election. On July 27, 1976, the
Union filed timely objections to conduct affecting the
election's results. On September 14, 1976, the Acting
Regional Director, after an investigation, issued a Re-
port on Objections, order, and notice of hearing, in
which he approved the Union's request to withdraw
certain objections and ordered a hearing before a
duly designated Hearing Officer on one objection.
After hearing, the Hearing Officer, on November
10, 1976, issued his report on objections in which he
found that the Employer's (Respondent's) announce-
ment of the possibility of a pension plan, made during
the critical period of the election campaign, war-
ranted setting aside the election. The Hearing Officer
also found, for different reasons, that the grant of a
wage increase during this period did not constitute
objectionable conduct. Thereafter, the Employer filed
exceptions to the Hearing Officer's report and, on
March 9, 1977, the Board adopted the Hearing Offi-
cer's findings and recommendations and issued a Di-
rection of Second Election. 2
2 The Board's decision. not published in the bound volumes of Board deci-
sion. also adopted, pro forma, in the absence of exceptions, the Hearing
Officer's recommendation that the wage increase did not warrant setting
aside the election.
241 NLRB No. 168
1178
REX-HIDE, INCORPORATED
Pursuant to the Board's direction, a second election
was conducted under the supervision of the Regional
Director on April 1, 1977. The tally showed that of
112 eligible employees, 107 voted, of whom 54 voted
for, and 53 voted against, the Union. There were no
challenged ballots. The Employer thereafter filed
timely objections to conduct affecting the results of
the election and, on May 5, 1977, after an investiga-
tion, the Regional Director issued a Report on Objec-
tions, in which he recommended that the Employer's
objections be overruled in their entirety and that the
Union be certified as the exclusive bargaining repre-
sentative of the employees in the stipulated unit. In
his report, the Regional Director rejected the Em-
ployer's contention that the Union had impermissibly
injected a racial issue into the campaign and had en-
gaged in serious misrepresentations.3 With respect to
the racial issue, the Regional Director found that the
one complained-of statement made by an unidentified
man to a single employee did not warrant setting
aside the election. With respect to the alleged misrep-
resentations, the Regional Director found that, even
if the statements complained of were misrepresenta-
tions, they would not warrant setting the election
aside under the guidelines of Shopping Karl Food
Market, Inc., 228 NLRB 1311 (1977), where a Board
majority indicated that, with few exceptions, the
Board would no longer inquire into alleged misrepre-
sentations made by either party in an election cam-
paign.
The Employer filed timely exceptions to the Re-
gional Director's report; on August 5, 1977, the
Board adopted that report and certified the Union in
the stipulated unit.4
In its present opposition to General Counsel's Mo-
tion for Summary Judgment, Respondent argues that
the Board erred in its refusal to certify the results of
the first election and erred in adopting the Regional
Director's recommendation that its objections to the
second election be overruled. The issues raised by Re-
spondent clearly were litigated and considered by the
Board in the prior representation proceeding. Not-
withstanding this, Respondent claims it should now
be entitled to a hearing to adduce further evidence on
the objections. As the Board has indicated, however,
"[i]t is well settled that a hearing on objections is not
required where, as here, there has been no primaJfacie
With regard to the misrepresentations issue. the objections alleged that
the Union (a) had misled the employees respecting the Employer's obligation
not to give raises during a union campaign: and (b) had distributed false and
misleading information concerning wages and wage increases negotiated by
the Union at another local company. The Regional Director also noted that
the Employer alleged that the Union had distributed literature which gave a
false impression as to why the first election had been set aside.
4 The Board's decision, also not published in the bound volumes of Board
decisions. was signed by Members Jenkins. Murphy, and then-Member Wal-
ther Member Jenkins indicated that, in adopting the Regional Director's
recommendations. he did not rely on Shopping Karl, upra.
showing of substantial and material issues and that,
absent arbitrary action, this qualified right to a hear-
ing satisfies due process."' Respondent has not raised
any issues which require an evidentiary hearing.
Respondent also argues in its opposition to the Mo-
tion for Summary Judgment that the Regional Direc-
tor erred in applying the standards established in
Shopping Kart, supra, rather than the prior law on
alleged misrepresentations articulated in Hollywood
Ceramics Company, Inc., 140 NLRB 221 (1962). Re-
spondent argues that the second election was held on
April , 1977, and that Shopping Kart did not issue
until April 8, 1977. Thus, Respondent argues, the law
that should be applied to the alleged misrepresenta-
tions is that set out in Hollywood Ceramics. We agree
with the Respondent that its objections should not
now be analyzed in light of the Board's decision in
Shopping Kart. Instead, we shall consider those objec-
tions in light of our recent decision in General Knit of
Caibrnia, Inc.,6 which issued during the pendency of
this proceeding at the Board.
In General Knit, the Board overruled Shopping Karl
and determined that it will again consider alleged
misrepresentations made during the critical preelec-
tion period as grounds for setting aside an election.
Accordingly, for this reason alone, we agree with Re-
spondent that its objections should now be considered
under the law as it developed under Hollywood Ce-
ramics (as explicated in General Knit).7 Applying the
General Knit standard to the instant objections, we
have determined that they are without merit. Thus,
assuming the truth of Respondent's objections, a
careful review of them reveals that the Union's state-
ments constituted normal election propaganda which
was not substantially or materially misleading.
s Southern Nvew York Publishers Co., Division of Courtland (ommunications
Corporation. 228 NLRB 212, 213 (1977).
239 NLRB 619 (19781) (Members Penello and Murphy dissenting sepa-
ratelyl)
See Blackman-Uhler Chemical Division-Snallov Corporation. 239 NLRB
637 (1978).
Member Murphy, as discussed in her dissenting opinion in General Knit.
adheres to the position enunciated by the majority in Shopping Kart She
would further apply that decision to the instant case. In affirming, in Case
16 RC 7229. the Regional Director's application of the rule announced in
Shopping Karl to conduct which occurred before that decision issued, the
Board was mindful of the necessity of balancing any harm to Respondent
against "the mischief of producing a result which is contrary to a statutory
design or to legal and equitable pnnciples." Securities and Evchange Com-
mission v (Chener Corporation, 332 U.S. 194. 203 (1947). Absent special
circumstances. the Board has traditionally applied the pronouncement of a
new rule of law to the case n which it arose and to all pending cases see,
e.g., Thomas E Gates & Sons. In., 229 NI.RB 705 (19771; H & F. Binch Co.,
188 NLRB 720 11971). enfd. 456 F.2d 357 (2d Cir. 1972). Member Murphy
finds no reason and indeed her colleagues advance none to depart from
that practice here. particularly when, as in the instant case, no party is
penalized for past conduct which was considered lawful at the time the part)
acted. Compare Drug PacAage, Inc. v. .R.B., 570 F.2d 1340 (8th Cir.
19781., and Retail, Wholesale and Department Store Union, A 4F. ('10 [Coca
Cola Bottling Works Inc. s ..R B., 466 .2d 380 (D.('. Cir. 1972), with
'.L.R.B. v Bell Arospac (Company. D. o Testron, Inc. 416 U.S. 267
(1974)
1179
DE( ISIONS OF NATIONAL. LABOR RELATIONS BOARD
It is well settled that in the absence of newly dis-
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. s
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence. We have disposed of all
Respondent's arguments and we therefore find that
the Respondent has not raised any issue which is
properly litigable in this unfair labor practice pro-
ceeding. Accordingly, we grant the Motion for Sum-
mary Judgment.9
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FA(r
I. THE BUSINESS OF RESPONDENT
At all times material herein, the Respondent has
been engaged in the manufacture of truck interliners
in a facility located at Tyler, Texas. During the 12
months preceding the issuance of the complaint,
which is a representative period, Respondent, in the
normal course and conduct of its business operations,
purchased, transferred, and delivered to its Tyler,
Texas, facility, goods and materials valued in excess
of $50,000 directly from suppliers located outside the
State of Texas and manufactured, sold, and distrib-
uted from its Tyler, Texas, facility truck interliners
valued in excess of $50,000, which were shipped di-
rectly to points outside the State of Texas.
We find, on the basis of the foregoing, that Respon-
dent 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.
SSee Pittsburgh Plate Glass Co. v. N.L.RRB., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69 (c).
9 In its answer to the complaint. Respondent denied that the Union has
requested bargaining in a unit "where they Isicl are the exclusive collective-
bargaining representative." Attachments to the General Counsel's Motion
for Summary Judgment show that the Union requested bargaining on Au-
gust 8 and August 29, 1977. Respondent does not dispute the authenticity of
these attachments or their receipt. In its answer, Respondent also indicated it
was unable to answer whether its general manager had orally indicated Re-
spondent would not bargain with the Union since the complaint allegation
did not specify to whom the statement was allegedly made. The complaint
alleges a general refusal to bargain which Respondent does not deny and.
acctordingly. without regard to the further allegation respecting the general
manager's alleged oral statements, we find Respondent has refused to bar-
gain with the Union.
II. Tll I.LABOR ORGANIZATION INVOIVED
Local 746, United Rubber, Cork, Linoleum & Plas-
tic Workers of America, AFL CIO. is a labor organi-
zation within the meaning of Section 2(5) of the Act.
11. IHE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. 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 production and maintenance employees of
Respondent employed at its Tyler, Texas, estab-
lishment; excluding all office clerical employees,
professional employees, guards, watchmen, and
supervisors as defined in the Act.
2. The certification
On April 1, 1977, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 16, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on August 5, 1977, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about August 8 1977. and all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
August 8, 1977, and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, 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
August 8, 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, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
1180
REX-1HIDE. INCORPORATED)
IV. 1fille l Fi('I OF 'iE UNFAIR l.ABOR PRAC(TI(CES
UPON ('OMMER(CE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate.
and substantial relationship to trade, traffic, and com-
merce 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-
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 commences
to bargain with the Union as the recognized bargain-
ing representative in the appropriate unit. See Mar-
Jac Poultrn Company, Inc., 136 NLRB 785 (1962);
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d (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
I. Rex-Hide, Incorporated, is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 746, United Rubber, Cork, Linoleum &
Plastic Workers of America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees em-
ployed by the Respondent at its Tyler, Texas, estab-
lishment; excluding all office clerical employees, pro-
fessional employees, 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 August 5, 1977, 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 August 8, 1977, 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 Rela-
tions Board hereby orders that the Respondent, Rex-
Hide, Incorporated, Tyler, Texas, 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 Local 746, United Rub-
ber, Cork, Linoleum & Plastic Workers of America,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees of
Respondent employed at its Tyler, Texas, estab-
lishment; excluding all office clerical employees,
professional employees, guards, 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
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.
(b) Post at its Tyler, Texas, plant copies of the at-
1181
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
tached notice marked "Appendix."' ° Copies of said
notice, on forms provided by the Regional Director
for Region 16, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
o 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
746, United Rubber, Cork, Linoleum & Plastic
Workers of America, 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 de-
scribed 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
employed at our Tyler, Texas establishment,
excluding all office clerical employees, profes-
sional employees, guards, watchmen, and su-
pervisors as defined in the Act.
REX-HIDE, INCORPORATED
1182