Tennessee Plastics, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1973

202 N.L.R.B. 462 (N.L.R.B. 1973)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tennessee Plastics, Inc. and Sheet Metal Workers'
International Association Local Union No. 464.
Case 10-CA-9854
March 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on November 8, 1972, by
Sheet Metal Workers' International Association
Local Union No. 464, herein called the Union, and
duly served on Tennessee Plastics, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 10, issued a complaint on November 22,
1972, 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 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 October 5,
1972, following a Board election in Case
10-RC-9176 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate; 1
and that, commencing on or about October 25, 1972,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with , the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On November 27, 1972,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On December 8, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 15,
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. 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, the Respondent
denies the validity of the election in Case
10-RC-9176 and of the Union's certification based
upon the election results. The General Counsel
contends that the Respondent is raising the same
issues that it litigated or could have litigated in the
underlying representation proceeding. Upon the
record before us, including the record in Case
10-RC-9176, we agree with the General Counsel and
therefore find no merit in the Respondent's position.
The record in Case 10-RC-9176 shows that, on
May 26, 1972, pursuant to a Stipulation for Certifica-
tion Upon Consent Election, an election by secret
ballot was conducted under the direction and
supervision of the Regional Director in which a
majority of the employees in the stipulated unit
selected and designated the Union as their represent-
ative for the purpose of collective bargaining with the
Respondent. Thereafter, the Respondent filed timely
objections to conduct affecting the results of the
election. The objections alleged, in substance, that
(1) union observers talked with eligible voters in the
polling area during the election; (2) union represent-
atives, agents, and/or employees (a) threatened
economic reprisals against eligible voters if they did
not vote for the Union, and (b) threatened them with
physical violence to their persons and property; and
(3) by these and other acts deprived employees of an
opportunity to cast free and untrammeled ballots in
the election. The Regional Director investigated the
objections and on July 12, 1972, issued his Report on
Objections in which he found the objections to be
without merit and recommended that the Board
overrule them in their entirety and certify the Union.
Subsequently, the Respondent filed timely excep-
tions to the Regional Director's report and a
supporting brief in which it argued that its objections
should not have been overruled and that the election
should have been set aside. In the alternative, it
requested that a hearing be ordered on the material
and substantial issues raised by the objections. On
October 5, 1972, the Board overruled the objections
and certified the Union as exclusive representative of
the employees in the stipulated unit.
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, Golden Age Beverage Co, 167 NLRB 151, Intertype Co v. Penello, 269 F
Case 10-RC-9176, as the term "record" is defined in Secs 102 68 and Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91
102 69(f) of the Board's Rules and Regulations, Series 8, as amended See (C A 7, 1968), Sec 9(d) of the NLRA
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
202 NLRB No. 61
TENNESSEE PLASTICS, INC. 463
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, 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.3 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
The Respondent, a Tennessee corporation, main-
tains an office and place of business located at
Johnson City, Tennessee, where it is engaged in the
manufacture and sale of heating and air-conditioning
equipment. During the past calendar year, a repre-
sentative period, the Respondent sold and shipped
finished products valued in excess of $50,000 directly
to customers located outside the State of Tennessee.
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
Sheet Metal Workers' International Association
Local Union 464 is a labor organization within the
meaning of Section 2(5) of the Act.
III, UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
2 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
3 In its response to the Notice To Show Cause , the Respondent contends
that the General Counsel 's Motion for Summary Judgment should not be
granted because, by his request that the Board take official notice of certain
representation case documents attached to his motion , the General Counsel
is attempting to present evidence outside the pleadings thereby depriving
the Respondent of an opportunity to present evidence . We find no merit in
this contention . It is customary Board practice to take official notice of the
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 tool and die employees, quality control
employees, shipping and receiving employees
employed by Respondent at plants 1, 2 and 3
located in Johnson City, Tennessee, but excluding
all office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act.
2. The certification
On May 26, 1972, 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 10 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 October 5, 1972, 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 October 16, 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 October 25, 1972, and continu-
ing 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 find that the Respondent has,
since October 25, 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.
entire representation case record in 8(a)(5) complaint cases where the
Respondent 's pleadings raise representation issues . (See In . 1, supra.) If,
upon review of the record , it appears that the representation issues had not
been previously litigated or raised , and they are otherwise properly litigable
at this stage of the proceeding , the Respondent would be afforded the
opportunity to litigate the issues and to present evidence at an evidentiary
hearing. Since the Respondent herein has previously litigated the represen-
tation issues , it is not entitled to a hearing to relitigate them herein and,
therefore , has not been deprived of an opportunity to present evidence.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 commences
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. Tennessee Plastics, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Sheet Metal Workers' International Associa-
tion Local Union No. 464 is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees
including tool and die employees, quality control
employees, shipping and receiving employees em-
ployed by Respondent at plants 1, 2 and 3 located in
Johnson City, Tennessee, but excluding all 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 October 5, 1972, 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 October 25, 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,
Tennessee Plastics, Inc., its officers, agents, succes-
sors, 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 Sheet Metal Work-
ers' International Association Local Union No. 464
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees
including tool and die employees, quality control
employees, shipping and receiving employees
employed by Respondent at plants 1, 2 and 3
located in Johnson City, Tennessee, but excluding
all office clerical employees, professional employ-
ees, 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-
standing is reached, embody such understanding in a
signed agreement.
TENNESSEE PLASTICS, INC. 465
(b) Post at its place o business in Johnson City,
Tennessee, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 10,
after being duly signed by Respondent's representa-
tive, 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 10, 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
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 including tool and die employees, quality
control employees, shipping and receiving
employees employed by Respondent at
plants 1, 2 and 3 located in Johnson City,
Tennessee, but excluding all office clerical
employees, professional employees, guards
and supervisors as defined in the Act.
TENNESSEE PLASTICS,
INC.
(Employer)
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 Sheet
Metal Workers' International Association Local
Union No. 464 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
Dated By
(Representative) (Title)
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, Peachtree Building, Room 701, 730
Peachtree Street N.E., Atlanta, Georgia 30308,
Telephone 404-526-5760.