Shawnee Plastics, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1972

200 N.L.R.B. 234 (N.L.R.B. 1972)

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shawnee Plastics, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case
9-CA-6859
November 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on March 3, 1972, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served on
Shawnee Plastics, Inc., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9, issued
a complaint on April 5, 1972, 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 1 were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December 16,
1971, following a Board election in Case 9-RC-8823,
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 2 and that,
commencing on or about January 6, 1972, and at all
times thereafter, Respondent has refused, and con-
tinues 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 April 14, 1972, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On August 28, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, alleging that Respondent's
answer raised no litigable issues. Subsequently, on
September 5, 1972, 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
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Official notice is taken of the record in the representation proceeding,
Case 9-RC-8823, as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See
Notice To Show Cause, with an affidavit attached
thereto.
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 in its response to
the Notice To Show Cause, Respondent admits all
factual allegations of the complaint, including the
request, and its refusal, to bargain. Respondent
contends, however, that the Union's certification is
invalid because it was not afforded a hearing on its
objections and because the Regional Director and
the Board committed substantial errors of law which
require that the election in the underlying representa-
tion proceeding be set aside. We do not agree.
The record in Case 9-RC-8823 indicates that in an
election conducted on January 14, 1971, pursuant to
a Stipulation for Certification Upon Consent Elec-
tion in the stipulated unit , 122 votes were cast for the
Union, 3 were cast for the Intervenor , and 67 were
cast for neither organization, with 3 ballots chal-
lenged. Respondent filed timely objections to con-
duct affecting the results of the election and to the
conduct of the election.
The objections alleged, in substance, that union
agents threatened and interrogated employees on the
plant premises while the polls were open; that the
unions involved in the election, shortly before the
date of the election, threatened employees with loss
of jobs and plant closure if the employees did not
vote for representation; and that union agents
misrepresented employee rights under the Act and
the amount of union dues. The objections further
alleged that union agents told employees that
Respondent had unlawfully acquired names of union
card signers and would take disciplinary action
against them and that automatic wage increases and
improved working conditions would result from
union representation.
After an investigation, the Regional Director issued
his Report on Objections in which he found that
Respondent's objections did not raise material and
substantial issues affecting the results of the election
and recommended that the objections be overruled
in their entirety.
Thereafter, the Respondent filed timely exceptions
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F .2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269
F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd . 397 F.2d
91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
200 NLRB No. 37
SHAWNEE PLASTICS, INC. 235
to the Regional Director's report and a supporting
brief requesting that the election be set aside or, in
the alternative, that a hearing be held on the
objections. In its Decision and Certification of
Representative issued December 16, 1971, the Board
found that Respondent's exceptions raised no sub-
stantial issues of fact or law warranting a hearing.
Accordingly, it adopted the Regional Director's
recommendations, overruled Respondent's objec-
tions, and certified the Union as the exclusive
bargaining representative of the employees in the
stipulated appropriate unit. Thereafter, on December
28, 1971, the Employer filed an exception to the
Board's rulings on its objections and requested the
Board to reconsider. On January 11, 1972, the Board
issued an Order denying the petition for reconsidera-
tion. The contentions and arguments of Respondent
in this unfair labor practice proceeding are the same
as those it advanced in the underlying representation
case which the Board has previously considered and
denied.
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 .3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation 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 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
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Kentucky corporation with its
principal offices and place of business in Kuttawa,
Kentucky, where it is engaged in the manufacture
and sale of plastic products. During the last 12
months, Respondent manufactured and sold plastic
products valued in excess of $50,000 which were sold
and shipped from its plant at Kuttawa, Kentucky,
directly to points located outside the State of
Kentucky.
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.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica (UAW), 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees,
including inspectors, at the Respondent's Kutta-
wa, Kentucky, operation, but excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On January 14, 1971, 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 9, 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 December 16, 1971, 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 January 3, 1972, and at
all times thereafter, the Union has requested the
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 January 6, 1972, and continu-
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
3 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).
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since January 6, 1972, 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, 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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Shawnee Plastics, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union, United Automobile, Ae-
rospace and Agricultural Implement Workers of
America (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including inspectors, at the Respondent's Kuttawa,
Kentucky, operation, but excluding office clerical
employees, professional employees, 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 December 16, 1971, 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 January 6, 1972, 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(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
Relations Board hereby orders that Respondent,
Shawnee Plastics, Inc., 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 International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees,
including inspectors, at the Respondent's Kutta-
wa, Kentucky, operation, but excluding office
clerical employees, professional employees, 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.
SHAWNEE PLASTICS, INC. 237
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 Kuttawa, Kentucky, operation copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 9, 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 thereaft-
er, in conspicuous places, including all places where
notices 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 9, 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 Umted States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), 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
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 inspectors, at the Respondent's
Kuttawa, Kentucky, operation, but exclud-
ing office clerical employees, professional
employees, guards and supervisors as de-
fined in the Act.
SHAWNEE PLASTICS, INC.
(Employer)
Dated By
(Representative) (Title)
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-
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.