Solvent Chemical Co., Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1975

221 N.L.R.B. 367 (N.L.R.B. 1975)

SOLVENT CHEMICAL CO., INC. 367
Solvent Chemical Company, Incorporated and Oil,
Chemical, and Atomic Workers International
Union, District 8, AFL-CIO-CLC. Case 3-CA-
6069
November 6, 1975
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 inr this proceeding, the
Board makes the following:
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on May 13, 1975, by Oil,
Chemical, and Atomic Workers'International Union,
District 8, AFL-CIO-CLC, herein called the Union,
and duly served on Solvent Chemical Company,
Incorporated, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 3, issued
a complaint on June 23, 1975, 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 April 28, 1975,
following a Board election in Case 3-RC-6232, 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 May 6, 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 July 1, 1975, Respondent filed its answer to the
complaint admitting impart, and denying in part, the
allegations in the complaint.
On July 8, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. On July 17, 1975, Respondent filed an
Opposition to the General Counsel's motion. Subse-
quently, on August 12, 1975, 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
Notice To Show Cause.
Ruling on the Motion for. Summary Judgment
In its answer and its opposition to the Motion for
Summary Judgment , the Respondent contends that
the Decision and Direction of Election in Case 3-
RC-6263 was clearly erroneous , arbitrary, . and
capricious ; that it 'is entitled to a hearing on the issue
determined in -Case 3-RC-6263, whether or not an
election would be premature because the bargaining
unit sought was an expanding unit ; and that it has
newly available evidence of developments affecting
that unit which supports the contentions it made in
the representation proceeding.
The record in that proceeding, Case 3-RC-6232,
establishes that , after a hearing in which the
Respondent participated , the Regional Director for
Region 3 issued on March 11 , 1975 , his Decision and
Direction of Election in which he found, contrary to
the Respondent , that Respondent 's work force would
constitute a substantial and representative employee
complement warranting conducting an immediate
election. On March 21 , 1975 , the Respondent filed
with the Board a request for review in ' which it
argued again that its-employee complement was not
substantial and representative of the unit which
would exist in the near future. By telegram dated
April 14, 1975 , the Board denied the request on the
ground that it raised no substantial issues warranting
review.
On June 12, 1975, ' the Respondent filed with the
Regional Director a motion to revoke certification,
set aside election, and reopen hearing, on'the ground
that it had newly available evidence of the progress it
was making in completing the construction and
production goals it had projected , at the time of the
hearing. On June 18 , 1975, the Regional Director
issued an Order denying the motion on the ground
that it did not raise any issues which would warrant
granting the relief prayed , for. Respondent filed a
request for review with the Board on June 27, 1975,
and by, telegram. dated August 5, ' 1975, the Board
denied review of the Regional Director 's order,
fording that the request raised no substantial issues
warranting review.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
1 Official notice is taken of the record in the representation proceeding , 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
Case 3-RC--6232, as the term "record" is defined m ' Secs. 102.68 and (C.A. 5, 1969); Intertype Co. v. Penello 269 F.Supp. 573. (D.C. Va., 1967);
102.69(g) of the Board's Rules and Regulations, Serves 8, as amended. See Follett Corp, 164 NLRB 378 (1967 ), enfd."397 F.2d 91(C.A. 7,1968);, Sec.
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 9(d) of the NLRA.
221 NLRB No. 58
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 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,3 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 fmd 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, a Massachusetts corporation,, main-
tains its principal office and place of business in
Malden, Massachusetts, and operates a chemical
plant in Niagara Falls, New York, where it is
engaged in the manufacture, sale, and distribution of
chemicals and related products. During the year
prior to the issuance of the complaint herein, a
representative period; Respondent purchased, trans-
ferred, and delivered to`its plant goods and materials
valued in excess of $50,000 which were transported
to its plant directly from States other than New York.
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
Oil, Chemical, and Atomic Workers International
Union, District 8, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of
the Act.
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(1) and 102.69(c).
3 The newly available evidence set forth in Respondent's opposition was
in fact considered in substance by the Regional Director and the Board in
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
employed by Respondent- at its Buffalo Avenue,
Niagara, Falls, New York, facility, excluding all
office clerical employees, laboratory employees,
professional employees, guards, and supervisors
as defined in the Act.
2. The certification
On April 18, 1975, 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 3, 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 April 28, 1975,,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 April 29, 1975, 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 May 6, 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 representa-
tive for collective bargaining of all employees in said
unit:
Accordingly, we fmd that the Respondent has,
since May 6, 1975, 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.
connection with Respondent 's motion to revoke certification , set aside
election, and reopen hearing, and was found not to be sufficient to warrant
a different result.
SOLVENT CHEMICAL CO., INC. 369
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 seetion ` 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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate -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
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 May 6, 1975, 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,
Solvent Chemical Company, Incorporated, Malden,
Massachusetts, and Niagara Falls, New York, 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 Oil, Chemical, and
Atomic Workers International Union, District 8,
AFL-CIO-CLC, as the exclusive bargaining repre-
sentative of its employees in the following appropri-
ate unit:
1. Solvent Chemical Company, Incorporated, is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical, and Atomic Workers Interna-
tional Union, District 8, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees
employed by Respondent at its Buffalo Avenue,
Niagara Falls, New York, facility, excluding all
office clerical employees, laboratory 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 April 28, 1975, the above-named labor
organization has been and now is the certified and
All production and maintenance employees
employed by Respondent at its Buffalo Avenue,
Niagara Falls, New York, facility, excluding all
office clerical employees, laboratory 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.
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-
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing,is reached, embody such understanding in a
signed agreement.
(b) Post at its-Buffalo Avenue, Niagara Falls, New
York, facility copies of the attached notice marked
"Appendix." 4- Copies of said notice, on forms
provided by the Regional Director for Region 3, 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 thereafter, in conspicuous 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 3, 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 Oil,
Chemical, and Atomic Workers -International
Union, District 8, AFL-CIO-CLC, as the exclu-
sive 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 employ-
ees employed by Respondent at its Buffalo
Avenue, Niagara Falls, New York, facility,
excluding all office clerical employees, labo-
ratory, employees, professional employees,
guards, and supervisors as defined in the
Act.
SOLVENT CHEMICAL
COMPANY, INCORPORATED