Richardson Chemical Co.

National Labor Relations Board - Board Decisions

Jan 8, 1976

222 N.L.R.B. 5 (N.L.R.B. 1976)

RICHARDSON CHEMICAL COMPANY 5
Richardson Chemical Company , Allied Kelite Prod-
ucts Division and International Union, Allied Indus-
trial Workers of America, AFL-CIO. Case
7-CA-12233
January 8, 1976
DECISION AND ORDER
Judgment should not be granted. Respondent did
not file 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:
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on August 8, 1975, by Interna-
tional Union, Allied Industrial Workers of America,
AFL-CIO, herein called the Union, and duly served
on Richardson Chemical Company, Allied Kelite
Products Division, herein called the Respondent, the
Acting General Counsel, herein General Counsel, of
the National Labor Relations Board, by the Acting
Regional Director for Region 7, issued a complaint
on August 29, 1975, 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 no-
tice of hearing before an Administrative Law Judge
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 28, 1975, fol-
lowing a Board election in Case 7-RC-12744 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; l and that, commenc-
ing on or about July 14, 1975, and at all times there-
after, 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
September 9, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On September 29, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 15,
1975, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
'Official notice is taken of the record in the representation proceeding,
Case 7-RC-12744, as the term "record" is defined in Secs 10268 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.
Ruling on the Motion for Summary Judgment
In its answer and affirmative defenses to the com-
plaint, Respondent (1) denies the validity of the
Union' s certification in Case 7-RC-12744 for the
reasons set forth in its request for review filed with
the Board in the representation proceeding , (2) as-
serts in effect that, despite its stated intent to refuse
to bargain with the certified Union, the absence of a
demand for bargaining precludes an 8(a)(5) finding,
and (3 ) argues that the issuance of the complaint by
the Acting Regional Director was ultra vires. In the
Motion for Summary Judgment counsel for the Gen-
eral Counsel contends (1) that Respondent is seeking
to relitigate issues which were litigated in the prior
representation proceeding and this it may not do, (2)
that a bargaining request would have been futile and
therefore is not prerequisite to an 8(a)(5) finding, and
(3) that Respondent's ultra vires defense is frivolous.
We agree with the General Counsel.
Our review of the record , including that in Case
7-RC-12744, reveals that, pursuant to a Decision
and Direction of Election issued by the Regional Di-
rector, an election was held on January 16, 1975. The
tally of ballots showed nine votes cast for the Union
and eight against . Respondent filed with the Region-
al Director timely objections alleging, in substance, a
conversation between a union representative and a
unit employee which allegedly contained a threat
and misrepresentation and which gave rise to a ru-
mor interfering with the , election . Pursuant to the di-
rection of the Regional Director , a . hearing on the
objections was held on February 10, 1975. Thereaf-
ter, the Hearing Officer , issued her Report and Rec-
ommendations recommending that the Regional Di-
rector overrule the objections in their entirety and
certify the Union . Respondent filed timely excep-
tions to the report reiterating its objections. On May
28, 1975, the Regional Director issued his Second
Supplemental Decision and Certification of Repre-
sentative adopting the conclusions and recommenda-
tions of the Hearing Officer and certifying the
Union. Respondent filed a tunely request for review
of the Regional Director 's Second Supplemental De-
cision and Certification of Representative , again set-
ting forth its objections . On July 2, 1975, the Board,
222 NLRB No. 2
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Member Kennedy dissenting, denied the re-
quest for review as raising no substantial issues.
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?
Except as hereafter discussed, all issues raised by
the Respondent in this proceeding were litigated in
the prior representation proceeding, and the Respon-
dent 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.
With respect to its second, affirmative defense that
there has been no request to bargain and therefore
there is no 8(a)(5) violation, we note that Respondent
admits that its attorney sent a letter to the Union's
attorney dated July 14, 1975, which expresses
Respondent's intent to refuse to bargain with the cer-
tified Union in order to obtain judicial review of the
Board's decision refusing to sustain its representation
case objections. Since it is apparent that, after the
receipt of Respondent's letter, a specific demand for
bargaining would have been futile, such a request to
bargain is not a prerequisite to the finding of, an
8(a)(5) violation. Old Town Shoe Company, 91 NLRB
240 (1950); N.L.R.B. v. Burton-Dixie Corporation,
210 F.2d 199 (C.A. 10, 1954), enfg. 103 NLRB 880
(1953). Accordingly, we find this defense lacking in
merit and that Respondent has refused to bargain on
and after July 14, 1975.
Respondent's third affirmative defense is that the
complaint issued by the Acting Regional Director is
a nullity and ultra vires the Board because there is
nothing in'the Act or in the Board's Rules and Regu-
lations which provides for the creation of an Acting
Regional Director or gives the Acting Regional Di-
rector the authority to issue complaints. This conten-
tion is without merit. Under Section 10(b), a Board
agent may be designated to issue complaints and
Section 3(d) gives the General Counsel final authori-
ty, on behalf of the Board, in respect to the issuance
of complaints. On October 31, 1975, the Regional
Director filed and duly served on all parties a re-
sponse to Respondent's third affirmative defense,
stating that the General Counsel has delegated au-
2 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).
thority to him to designate the Assistant to the Re-
gional Director as Acting Regional Director when his
absence is not-expected to exceed 30 days and that,
with respect to the delegation of authority herein, he
had so designated Henry L. Chiles, Jr., the Assistant
to the Regional Director, to act as Acting Regional
Director during his absence. As the statement of the
Regional Director is uncontroverted, we find that the
Regional Director, under authority delegated to him
by the General Counsel, properly designated Henry
L. Chiles, Jr., as Acting Regional Director with au-
thority to issue the complaint herein. Accordingly,
we shall grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Richardson Chemical Company, Allied Kelite
Products Division, an Ohio corporation with its prin-
cipal office and plant located in Highland Park,
Michigan, is engaged in the manufacture and pro-
cessing of chemicals and related products at its High-
land Park plant, the only facility involved in these
proceedings. During the past 12 months, a represen-
tative period, Respondent, in the course and conduct
of its business operations, purchased and caused to
be transported and delivered at its Highland Park
plant, chemicals and other goods and materials val-
ued in excess of $100,000, of which goods and mate-
rials valued in excess of $50,000 were transported
and delivered to its plant in Highland Park directly
from points located outside the State of Michigan.
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.
II. THE LABOR ORGANIZATION INVOLVED
International Union, Allied Industrial Workers of
America, 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
I. The unit
The following employees of the Respondent con-
RICHARDSON CHEMICAL COMPANY
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time office clerical
employees, including inventory control clerks,
research coordinator and formula control em-
ployees, switchboard operators, receptionists,
and mailroom employees employed by the Em-
ployer at its facilities located at 364, 370, and
400 Midland Avenue, Highland Park, Michigan;
but excluding all production and maintenance
employees, plant clericals, salesmen, confiden-
tial employees, managerial employees, profes-
sional employees and guards and supervisors as
defined in the Act.
2. The certification
On January 16, 1975, 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 7 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on May 28, 1975, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. Respondent's Refusal To Bargain
On July 14, 1975, Respondent, by its attorney, in a
letter to the Union's attorney, stated its intention to
refuse to bargain with the certified Union.
Accordingly, we find that the. Respondent has,
since July 14, 1975, 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, 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 I, 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
7
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 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); Bur-
nett 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. Richardson Chemical Company, Allied Kelite
Products Division, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. International Union, Allied Industrial Workers
of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time office cleri-
cal employees, including inventory control clerks, re-
search coordinator and formula control employees,
switchboard operators, receptionists, and mailroom
employees employed by the Employer at its facilities
located at 364, 370, and 400 Midland Avenue, High-
land Park, Michigan; but excluding all production
and maintenance employees, professional employees
and guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since May 28, 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 July 14, 1975, and at all
times thereafter, to bargain collectively with the
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the Respondent,
Richardson Chemical Company,Allied Products Di-
vision, Highland Park, Michigan, 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 International Union, Al-
lied Industrial Workers of America, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All full-time and regular part-time office clerical
employees, including inventory control clerks,
research coordinator and formula control em-
ployees, switchboard operators, receptionists,
and mailroom employees employed by the Em-
ployer at its facilities located at 364, 370, and
400 Midland Avenue, Highland Park, Michigan;
but excluding all production and maintenance
employees, plant clericals , salesmen , confiden-
tial employees, managerial employees, profes-
sional employees and 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 Highland Park, Michigan, facility
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the Re-
gional Director for Region 7 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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 Inter-
national Union, Allied Industrial Workers of
America, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 full-time and regular part-time office cleri-
cal employees, including inventory control
clerks, research coordinator and formula con-
trol employees, switchboard operators, recep-
tionists, and mailroom employees employed
by the Employer at its facilities located at 364,
RICHARDSON CHEMICAL COMPANY 9
370, and 400 Midland Avenue, Highland employees, professional employees and
Park , Michigan ; but excluding all production guards and supervisors as defined in the Act.
and maintenance employees , plant clericals,
salesmen , confidential employees , managerial RICHARDSON CHEMICAL COMPANY,
ALLIED KELITE PRODUCTS