Sunnyland Refining Co., Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1980

250 N.L.R.B. 1180 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunnyland Refining Company, Inc. and International
Brotherhood of Boilermakers, Shipbuilders,
Forgers and Helpers, AFL-CIO. Case 10-CA-
15410
July 28, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on January 25, 1980, by In-
ternational Brotherhood of Boilermakers, Ship-
builders, Forgers and Helpers, AFL-CIO, herein
called the Union, and duly served on Sunnyland
Refining Company, Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
10, issued a complaint on February 28, 1980,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 and complaint and notice of
hearing before an administrative 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 May 15,
1979, following a Board election, 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 January 23, 1980, and at all times thereaf-
ter, 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 April 28, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on May 1,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Thereafter,
on May 15, 1980, Respondent filed an opposition to
the Motion for Summary Judgment.
' Official notice is taken of the record in the representation proceed-
ing, Case IO-RC 11590, 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 L IT' Electrosystems Inc., 166 NLRB 938 (1967), enfd. 388 F2d 68.1
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F 2d 26 (5th Cir 1969); Intertype Co. Penello, 269 F.Supp. 573 (D C
Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91 (7th
Cir 1968); Sec. 9(d) of the NLRA. as amended On March II, 1980, Re-
spondent filed its answer to the complaint admitting in part, and denying
in part, the allegations in the complaint, and alleging certain affirmative
defenses.
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, Respondent
denies the material allegations in the complaint and
asserts as affirmative defenses that: (1) commencing
on May 15, 1979, and continuing until January 15,
1980, the Union failed to exercise its rights under
Section 9(a) of the Act, as the exclusive bargaining
representative of the employees in the bargaining
unit and thereby effectively abandoned these em-
ployees; (2) commencing on May 15, 1979, and
continuing at all times until January 15, 1980, the
Union breached its duty of fair representation to
the employees in the bargaining unit by failing to
exercise its rights under Section 9(a) of the Act;
and (3) by two letters dated May 25, 1979, the
Union requested certain information from Respond-
ent for the purposes of collective bargaining and
also sought to arrange dates for collective bargain-
ing, and by two letters dated June 6, 1979, Re-
spondent informed the Union of its technical refus-
al to bargain with the Union and its intention to
seek court review of the Board's decision denying
Respondent's objections and the Board's Certifica-
tion of Representative; and that, accordingly, the
unfair labor practice charge filed by the Union on
January 25, 1980, is barred by the 6-month statute
of limitations contained in Section 10(b) of the Act.
The General Counsel asserts with respect to the
first affirmative defense that absent unusual circum-
stances a certification must be honored for 1 year,
and that Respondent has raised no unusual circum-
stances that would warrant the shortening of the
certification year. With respect to the second af-
firmative defense, the General Counsel contends
that the Union has not breached its duty of fair
representation for, as admitted by Respondent, the
Union requested Respondent to bargain on January
15, 1980, well within the certification year. With
respect to Respondent's contention that the charge
herein is time-barred by Section 10(b) of the Act,
the General Counsel asserts that the complaint al-
leges no violation which took place more than 6
months prior to the filing of the charge and that
since Respondent is obligated to bargain with the
Union for at least I year from the date of certifica-
tion, and since Respondent has admitted that it re-
fused on or about January 23, 1980, and continues
to refuse to bargain collectively with the Union,
Respondent has violated Section 8(a)(5) and (1) of
250 NLRB No. 146
1180
SUNNYL.AND REFINING COMPANY
the Act during the 6 months preceding the filing of
the charge.
Our review of the record herein, including the
record in Case 10-RC-11590, discloses that pursu-
ant to a Stipulation for Certification Upon Consent
Election, an election was conducted on December
21, 1978, and that the tally of ballots showed 76
votes cast for and 41 against the Union, with I
void and 5 challenged ballots. Respondent timely
filed objections to conduct affecting the results of
the election, alleging that: (I) the Union, in the
conduct of its preelection campaign, through its
agents, threatened, coerced, and intimidated em-
ployees who were eligible to vote in the election;
and (2) the Union by the dissemination of a leaflet
8 days before the election which contained material
and substantial misrepresentations violated the labo-
ratory conditions for the conduct of an election
and thereby prevented a free choice of bargaining
representative.
Thereafter, on January 26, 1979, the Regional
Director for Region 10 issued a report on objec-
tions in which he recommended that Respondent's
objections be overruled and that the Union be cer-
tified.
Thereafter, Respondent filed exceptions to the
Regional Director's report and a supporting brief
in which it essentially reiterated the allegations set
forth in its objections and the contentions made in
support thereof. On May 15, 1979, the Board issued
a Decision and Certification of Representative
adopting the Regional Director's report and rec-
ommendations and additionally finding that Re-
spondent's exceptions raised no material or substan-
tial issues of fact or law which would warrant re-
versal of the Regional Director's findings or re-
quire a hearing.
Subsequently, by letter dated January 15, 1980,
the Union requested that Respondent meet for pur-
poses of collective bargaining. By letter dated Jan-
uary 23, 1980, Respondent refused to bargain with
the Union.
In its opposition to the Motion for Summary
Judgment, Respondent essentially reiterates the af-
firmative defenses and contentions made in its
answer to the complaint. We find that all of these
affirmative defenses lack merit. With respect to the
first affirmative defense, it is well settled that an
employer must honor a certification and continue
to bargain in good faith for I year in the absence
of unusual circumstances, none of which Respond-
ent has attempted to raise in this instance. 2 With
Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954). We find that the 8-
month gap between the dates of the Union's requests for bargaining does
not constitute such unusual circumstances within the meaning of Ray
Brooks v N.L.R.B that would relieve Respondent of itsi obligation to
respect to the second affirmative defense, a union's
laxitude in requesting bargaining, so long as the
union makes its request during the certification
year, is no defense to an employer's refusal to bar-
gain.3 Finally, we find that Respondent's 10(b) de-
fense lacks merit because Respondent has admitted
that the Union requested bargaining on January 15,
1980, within the certification year, and that it has
refused to bargain since January 23, 1980. The date
of the charge, January 25, 1980, only 2 days fol-
lowing Respondent's admitted refusal to bargain, is
thus clearly within the 6-month requirement of
Section 10(b) of the Act.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.4
All issues raised by Respondent in this proceed-
ing, with the exception of the affirmative defenses
discussed above, to which we find no merit, were
or could have been litigated in the prior representa-
tion proceeding, and Respondent does not offer to
adduce at a hearing any newly discovered or previ-
ously 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 pro-
ceeding. We shall, accordingly, grant the Motion
for Summary Judgment, finding, as alleged in the
complaint, that on or since January 23, 1980, the
Respondent has violated Section 8(a)(5) and (1) of
the Act by refusing to bargain with the Union, as
requested.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, an Alabama corporation with an
office and place of business located in Birmingham,
Alabama, is engaged in the production and packag-
ing of margarine, shortening, and peanut butter.
During the 12 months preceding issuance of the
bargain throughout the certification year See Kenneth B. McLean d/hba
Ken's Building Supplies. 142 NLRB 235, 237-238 (1963).
:' Ken's Building Supplies. supra at 238. In any event, once a union re-
quests bargaining and an employer states it is refusing to bargain in order
to test the certification, it is futile and unnecessary for the union to con-
tinue to request bargaining. Williams Energy Company, 218 NLRB 1080,
fn. 4 (1975). see Sesoanees Cool Operators Asuociation. ei al., 167 NLRB 172,
fin. (1967)
4 See Pittsburgh Plate Glass Co . v N LRB., 313 U S 146. 162 (1941):
Rules and Regulations of the Board. Sec 102.67(f) and 102 6
9
(c)
DI)ECISIONS ()OF NATIONAl. ILABOR RELATIONS BOARD
complaint herein, Respondent, in the course and
conduct of its business operations, sold and shipped
products valued in excess of $50,000 directly to
customers located outside the State of Alabama.
We find, on the basis of the foregoing, that Re-
spondent 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. 'rHE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Ship-
builders, Forgers and Helpers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR L.ABOR PRACTICES
A. The Representation Proceeding
i. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by Respondent at its Birmingham,
Alabama, facility, excluding all transportation
department employees, office clerical employ-
ees, professional employees, guards and super-
visors as defined in the Act.
2. The certification
On December 21, 1978, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 10, designated
the Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on May 15,
1979, 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 15, 1980, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 23, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
January 23, 1980, 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, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Sunnyland Refining Company,
Inc., set forth in section III, above, occurring in
connection with its operations described in section
I, above, have close, intimate, and substantial rela-
tionship 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
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); 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
1. Sunnyland Refining Company, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Boilermakers,
Shipbuilders, Forgers and Helpers, AFL-CIO, is a
1 12
SUNNYLAND REFINING COMPANY
labor organization within the meaning of Section
2(5) of the Act.
3 All production and maintenance employees
employed by Respondent at its Birmingham, Ala-
bama, facility, but excluding all transportation de-
partment employees, office clerical employees, pro-
fessional employees, guards, and supervisors as de-
fined 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 May 15, 1979, 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 23, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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,
Sunnyland Refining Company, Inc., Birmingham,
Alabama, its officers, agents, successors, and as-
signs, 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
Brotherhood of Boilermakers, Shipbuilders, Forg-
ers and Helpers, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees
employed by Respondent at its Birmingham,
Alabama, facility, excluding all transportation
department employees, office clerical employ-
ees, professional employees, guards and super-
visors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Birmingham, Alabama, facility
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 10, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
5 In the e'ent that thil Order i' enforced h' a Judgment of a UInlled
Stalte Court of Appeak. the ords in the notice reading l'Potcd h%
()rder of the NalloInal I abor Relation, Board" hall read "'ot.(cd P'ursu-
anl to a Judgnment if the ULnited State C( ourl of Appeal, In fiorcillng an
Order of the Natmilnail L ahor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REL ATIONS 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 International Brotherhood of Boiler-
makers, Shipbuilders, Forgers and Helpers,
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 employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
11 3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WF wil., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions 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 by us at our Birmingham, Ala-
bama, facility, excluding all transportation
department employees, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
SUNNYLAND REFINING COMPANY,
INC.
I I84