Synalloy Corp.

National Labor Relations Board - Board Decisions

Apr 9, 1976

223 N.L.R.B. 827 (N.L.R.B. 1976)

BLACKMAN-UHLER CHEMICAL DIV.
Blackman-Uhler Chemical Division-Synalloy Corpo-
ration and International Molders & Allied Workers
Union, AFL-CIO . Case 11-CA-6300
April 9, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND .IENKINS
Upon a charge and amended charge filed on Octo-
ber 20, 1975, and November 18, 1975, respectively,
by International Molders & Allied Workers Union,
AFL-CIO, herein called the Union, and duly served
on Blackman-Uhler Chemical Division-Synalloy
Corporation, herein called the Respondent, the Act-
ing General Counsel of the National Labor Relations
Board, herein called General Counsel, by the Re-
gional Director for Region 11, issued a complaint on
November 21, 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 September 17,
1975, following a Board election in Case 11-RC-
3936 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 October 1, 1975, 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
by refusing to furnish information preparatory to
collective bargaining concerning rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, although the Union has re-
quested and is requesting it to do so. On December 2,
1975, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On December 17, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
'Official notice is taken of the record in the representation proceeding,
Case II-RC-3936, 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
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.
of the NLRA,
827
Summary Judgment. Respondent filed its statement
in opposition to the Motion for Summary Judgment
on December 29, 1975. Subsequently, on January 5,
1976, 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
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause enti-
tled "Return 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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, opposition to the
Motion for Summary Judgment and response to the
Notice To Show Cause, Respondent contends that
the certification is invalid based on its election objec-
tions upon which no hearing was held and in sub-
stance argues that it is entitled to a hearing on statu-
tory and constitutional grounds. In its Motion for
Summary Judgment, the General Counsel contends
that Respondent, by its denial of the representative
status of the Union, is attempting to relitigate mat-
ters considered and disposed of in the representation
case and that these issues may not be reconsidered
herein. We agree.
Review of the record herein, including that in the
representation proceedings, Case 11-RC-3936, re-
veals that, pursuant to a Stipulation for Certification
Upon Consent Election, an election was held on Sep-
tember 12, 1974. The tally of ballots showed 53 votes
cast for the Union, 49 votes against, and 11 chal-
lenged ballots. Respondent filed timely objections in-
cluding an allegation of last-minute misrepresenta-
tion of Respondent's profits in a campaign leaflet by
the use of the financial figures of the parent, Synalloy
Corporation, which showed a 250-percent increase in
profits at a time when Respondent, an installation of
Synalloy's Chemical Division, allegedly experienced
a decrease in profits. On November 7, 1974, the Re-
gional Director issued his Report on Challenges and
Objections, Direction and Order Consolidating
Cases in which he recommended that a hearing on
the determinative challenges be consolidated with
the hearing in Case I1-CA-5800 and that all the ob-
jections be overruled. With respect to the misrepre-
sentation objection, the Regional Director found no
material misrepresentation since the profit figures in
the campaign leaflet were clearly identified as taken
223 NLRB No. 116
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a stockholder report of Respondent's parent
corporation.
Respondent filed exceptions confined to the over-
ruling of its misrepresentation objection. On March
24, 1975, a Board panel, with Member Kennedy dis-
senting, issued its Order Directing Hearing 2 in which
it concluded that Respondent's exceptions raised no
material or substantial issues warranting reversal of
the Regional Director and (1) found that there was
no material misrepresentation with respect to the
profit figures since the figures designated "Company
profit" were identical to those attributed to the par-
ent corporation by name; (2) in the absence of excep-
tions, adopted pro forma the Regional Director's rec-
ommendation that the remaining objections by
overruled; and (3) ordered that the hearing on chal-
lenged ballots be consolidated with any hearing be-
fore an Administrative Law Judge in Case 11-CA-
5800.
On April 23, 1975, the Administrative Law Judge
issued his Decision, recommending, inter alia, that 6
of the 11 challenges be overruled. On August 29,
1975, the Board issued its Decision and Order 3 in
which it adopted the recommendations of the Ad-
ministrative Law Judge and ordered the Regional
Director to open and count the six ballots and to
issue an appropriate certification. The revised tally
showed that the Union received a majority of the
eligible ballots cast and on September 17, 1975, the
Regional Director certified the Union.
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.4
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision 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.
The thrust of the Respondent's remaining conten-
tions is that it is entitled to a hearing on its misrepre-
Z 217 NLRB No. 7.
'220 NLRB No. 14.
See Pittsburgh Plate Glass Co. v. N.L.R.B., 3I3 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs . 102.67(f) and 102.69(c).
sentation objection on statutory and constitutional
grounds. It is well established that parties do not
have an absolute right to a hearing on objections to
an election. It is only when the moving party presents
a prima facie showing of "substantial and material
issues" which would warrant setting aside the elec-
tion that he is entitled to an evidentiary hearing and
here the Board found that there were no such materi-
al or substantial issues. It is clear that, absent arbi-
trary action, this qualified right to a hearing satisfies
all statutory and constitutional requirements.5 Fur-
thermore, the courts have uniformly upheld the
Board's authority to utilize summary judgment pro-
cedure where there were no issues requiring an evi-
dentiary hearing.6 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
Respondent is now, and has been at all times ma-
terial herein, an installation of the Chemical Division
of Synalloy Corporation, a South Carolina corpora-
tion with facilities in seven States. Respondent is en-
gaged in the manufacture of dye stuffs, pigments,
and intermediaries at its Spartanburg, South Caroli-
na, plant. During the past 12 months, which period is
representative of all times material herein, Respon-
dent received goods and raw materials directly from
points outside the State of South Carolina valued in
excess of $50,000, and during the same 12-month pe-
riod Respondent caused to be shipped directly to
points outside the State of South Carolina products
valued in excess of $50,000.
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.
H. THE LABOR ORGANIZATION INVOLVED
International Molders & Allied Workers Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
' Heavenly Valley Ski Area, a California Corporation, and Heavenly Valley.
a Partnership,- 215 NLRB No. 129 (1974).
6 See Lyman Printing and Finishing Company, a Division of M. Lowenstein
& Sons, 183 NLRB 1048 (1970), and cases cited therein.
BLACKMAN-UHLER CHEMICAL DIV. 829
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
refusal , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All production and maintenance employees,
including laboratory employees , truckdrivers,
and plant clerical employees at Respondent's
Camp Croft , South Carolina , plant , excluding all
office clerical employees , guards, professional
employees , and all supervisors as defined in the
Act.
2. The certification
On September 12, 1974, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 11, 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 September 17, 1975, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request For Information and Respondent's
Refusal
Commencing on or about September 23, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit by furnishing
it with information preparatory to collective bargain-
ing concerning rates of pay, wages, hours of employ-
ment , and other terms and conditions of employ-
ment . Commencing on or about October 1, 1975, and
continuing at all times thereafter to date, the Respon-
dent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive rep-
resentative for collective bargaining of all employees
in said unit by failing to furnish such information
preparatory to collective bargaining.
Accordingly, we find that the Respondent has,
since October 1, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit by failing to furnish information pre-
paratory to collective bargaining and that, by such
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
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 by furnishing it with information pre-
paratory to collective bargaining, and, if an under-
standing 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. Blackman-Uhler Chemical Division-Synalloy
Corporation is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Molders & Allied Workers Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding laboratory employees, truckdrivers, and
plant clerical employees at Respondent's Camp
Croft, South Carolina, plant, excluding all office cler-
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ical employees, guards, professional employees, and
all 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 September 17, 1975, the above-named la-
bor 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 October 1, 1975, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit by failing to furnish
information preparatory to collective bargaining Re-
spondent 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, 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 Respondent, Black-
man-Uhler Chemical Division-Synalloy Corpora-
tion, Spartanburg, South Carolina, 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 Molders &
Allied Workers Union, AFL-CIO, by refusing to fur-
nish information preparatory to collective bargaining
to said labor organization as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All production and maintenance employees,
including laboratory employees, truckdrivers,
and plant clerical employees at Respondent's
Camp Croft, South Carolina, plant, excluding all
office clerical employees, guards, professional
employees, and all 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 by furnishing infor-
mation preparatory to collective bargaining and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Camp Croft, Spartanburg, South
Carolina, plant, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 11, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' 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 Molders & Allied Workers Union,
AFL-CIO, by refusing to furnish information
preparatory to collective bargaining to said la-
bor organization as the exclusive representative
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
BLACKMAN-UHLER CHEMICAL DIV.
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 by furnishing information prepara-
tory to collective bargaining to said labor orga-
nization and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
831
All production and maintenance employ-
ees, including laboratory employees, truckdri-
vers, and plant clerical employees at
Respondent's Camp Croft, South Carolina,
plant, excluding all office clerical employees,
guards, professional employees,, and all super-
visors as defined in the Act.
BLACKMAN-UHLER CHEMICAL DIVISION-
SYNALLOY CORPORATION