RJR Archer, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1977

230 N.L.R.B. 499 (N.L.R.B. 1977)

RJR ARCHER, INC.
RJR Archer, Inc., Filmco Division and Freight
Drivers, Dockworkers and Helpers Local Union
No. 24, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 8-CA- 10653
June 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on December 10, 1976, by
Freight Drivers, Dockworkers and Helpers Local
Union No. 24, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on RJR Archer, Inc., Filmco
Division, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 8, issued a
complaint on January 11, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative 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 October 1,
1976, following a Board election in Case 8-RC-
10333, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about December 2, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On January 31, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint. Respondent averred that the
Board's certification was improper for the following
reasons: (a) that the election of May 6, 1976, upon
which the Board's certification was based was so
tainted with coercion, threats, and intimidation on
the part of union agents and adherents, as to have
been improper and a nullity, lacking the requisite
laboratory conditions, and (b) that Respondent was
I Official notice is taken of the record in the representation proceeding,
Case 8-RC-10333, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See
LTVElectrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
230 NLRB No. 71
wrongfully denied a hearing with respect to substan-
tial and material factual issues raised during the
course of the postelection proceedings. Respondent
admitted that it has refused to bargain with the
Union since December 2, 1976, but averred that it
had no legal obligation to recognize the Union and
meet and bargain collectively with it since it was not
the validly certified representative of its employees.
On February 14, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 25,
1977, 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. Respon-
dent 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
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 and its response to
the Notice To Show Cause, Respondent attacks the
Union's certification on the basis of preelection
conduct by the Union and avers that Respondent
was wrongfully denied a hearing with respect to
substantial and material issues raised during the
course of the postelection proceedings.
Review of the record herein reveals that in Case 8-
RC-10333 a Stipulation for Certification Upon
Consent Election was approved by the Regional
Director and the election was conducted on May 6,
1976. On May 13, 1976, Respondent filed objections
to conduct affecting the results of the election. The
tally of ballots showed that of approximately 144
eligible voters 69 cast ballots for the Union, and 66
cast ballots against the Union. The Regional Direc-
tor issued his Report on Objections on July 1, 1976,
recommending that the objections be overruled and
the Union be certified, and on October 1, 1976, the
Board issued a Decision and Certification of Repre-
sentative, certifying the Union as the collective-
bargaining representative of the employees in the
appropriate unit (not published in bound volumes of
Board Decisions).
Following a request by the Union on or about
November 4, 1976, that Respondent bargain collec-
tively in good faith with respect to rates of pay,
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, as amended.
499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, and other terms and conditions of employ-
ment, Respondent refused to recognize and bargain
in good faith with the Union as the exclusive
bargaining representative of its employees in the
certified unit. Respondent has refused to bargain
with the Union since December 2, 1976.
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.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding,3 and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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. We shall, accordingly, 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, a corporation duly organized and
existing by virtue of the laws of the State of
Delaware, with an office and place of business
located at 1450 South Chillcothe Road, Aurora,
Ohio, the only facility involved in this proceeding,
where it is now, and has been at all times material
herein, engaged in the manufacture of plastic
polyvinyl film. Annually, Respondent ships products
valued in excess of $50,000 from its place of business
in Aurora, Ohio, directly to points located outside
the State of Ohio.
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.
2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c).
3 In the representation proceeding, Respondent sought to have the Board
reverse the Regional Director's dismissal of the objections, or, in the
11. THE LABOR ORGANIZATION INVOLVED
Freight Drivers, Dockworkers and Helpers Local
Union No. 24, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
111. 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 production and maintenance employees,
including shipping and receiving employees, plant
clerical employees, and chief operators employed
at the Employer's Aurora, Ohio, facility, but
excluding all office clerical employees and profes-
sional employees, guards and supervisors as
defined in the Act.
2. The certification
On May 6, 1976, 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 8, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on October 1, 1976, 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 November 4, 1976, 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 2, 1976, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that Respondent has, since
December 2, 1976, and at all times thereafter, refused
alternative, order a hearing, because the Union or its agents and adherents
allegedly coerced and restrained employees by threats of violence and
allegedly made impermissible material misrepresentations.
500
RJR ARCHER, INC.
to bargain collectively with the Union as the
exclusion 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.
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,
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 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.
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 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);
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. RJR Archer, Inc., Filmco Division, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Freight Drivers, Dockworkers and Helpers
Local Union No. 24, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including shipping and receiving employees, plant
clerical employees and chief operators employed at
the Employer's Aurora, Ohio, facility, but excluding
all office clerical employees and professional employ-
ees, 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 October 1, 1976, 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 2, 1976, 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(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
meaning of Section 8(aX)(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,
RJR Archer, Inc., Filmco Division, Aurora, Ohio, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Freight Drivers,
Dockworkers and Helpers Local Union No. 24,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All production and maintenance employees,
including shipping and receiving employees, plant
clerical employees and chief operators employed
at the Employer's Aurora, Ohio, facility, but
excluding all office clerical employees and profes-
sional employees, guards and supervisors as
defined in the Act.
501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 Aurora, Ohio, facility, copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director
for Region 8, 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
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 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 Freight
Drivers, Dockworkers and Helpers Local Union
No. 24, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive repre-
sentative 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 production and maintenance employees,
including shipping and receiving employees,
plant clerical employees and chief operators
employed at the Employer's Aurora, Ohio,
facility, but excluding all office clerical
employees and professional employees,
guards and supervisors as defined in the Act.
RJR ARCHER, INC.,
FILMCO DIVISION
502