Westvaco

National Labor Relations Board - Board Decisions

Feb 27, 1984

268 N.L.R.B. 1203 (N.L.R.B. 1984)

WESTVACO
Westvaco, Virginia Folding Box Division and Bell-
wood Printing Pressmen Assistants and Special-
ty Workers Local Union No. 670. Case 5-CA-
15155
27 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 28 February
1983, the General Counsel of the National Labor
Relations Board issued a complaint on 24 March
1983 against the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint alleges that on 18 October 1982,
following issuance of the Acting Regional Direc-
tor's Decision, Order, and Clarification of Certifi-
cation in Case 5-UC-173 the Union was certified
as the exclusive collective-bargaining representative
of the Respondent's utilities technician employees
in the unit so clarified.' (Official notice is taken of
the "record" in the representation proceeding as
defined in the Board's Rules and Regulations, Secs.
102.68 and 102.69(g), amended Sept. 9, 1981, 46
Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB
343 (1982).) The complaint further alleges that
since 16 February 1983 the Respondent has refused
to bargain with the Union. On 5 April 1983 the Re-
spondent filed its answer admitting in part and de-
nying in part the allegations in the complaint.
On 25 April 1983 the General Counsel filed a
Motion for Summary Judgment. On 28 April 1983
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent
filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answers to the complaint and motion the
Respondent contends, inter alia, that the evidence
it presented in Case 5-UC-173 established that the
utilities technicians should be excluded from the
existing bargaining unit because they are technical
employees; that they do not desire to be represent-
' The Respondent and the Union have been parties to successive col-
lective-bargaining agreements since December 1958. The most recent
agreement is effective from 13 April 1981 through 13 April 1984 and
covers wages, hours, and terms and conditions of employment for the fol-
lowing bargaining unit: All production and maintenance employees em-
ployed at Respondent's four Richmond, Virginia plants, excluding office
clerical employees, guards, watchmen, professional employees and super-
visors as defined in the Act.
268 NLRB No. 190
ed by the Union; that the instant proceedings are
barred by the operation of the 6-month statute of
limitations period as set forth in Section 10(b); and
that the Board's denial of its request for review in
the UC case denied it due process.
The General Counsel contends that the Respond-
ent is improperly seeking to relitigate issues which
were raised and decided in the underlying repre-
sentation case. We agree with the General Counsel.
Review of the record including the record in
Case 5-UC-173 shows that pursuant to a petition
for unit clarification filed by the Union on I Sep-
tember 1982 seeking clarification of the bargaining
unit to include the Company's utilities technicians,
a hearing was held and the Regional Director
issued his Decision, Order, and Clarification of
Certification finding that the utilities technicians
were not technical employees and including them
in the existing unit. On I November 1982 the Re-
spondent filed with the Board a request for review
of the Regional Director's decision in which it ad-
vanced some of the same arguments made here. On
5 January 19832 the Board denied the request for
review. 3 On 9 February by letter, the Union re-
quested and continues to request that the Respond-
ent meet with it for purposes of collective bargain-
ing regarding the utilities technicians. The Union
received no response from the Respondent and on
28 February filed the instant charge.
With respect to the Respondent's contention that
the utilities technicians are technical employees, the
Regional Director found that these employees were
responsible for operating, monitoring, and trouble-
shooting the Respondent's solvent recovery proc-
ess (SRP), a mechanical procedure which allows
the Respondent to filter out and recover used sol-
vents from the emissions of its gravure printing
process. The Regional Director also found that
these employees spend 75-80 percent of their time
in the SRP activity with the remainder of their
worktime spent in monitoring the boilers and other
utility equipment used in the printing process and
cleaning up the boiler room. In addition if the utili-
ties technicians have problems that require repair
work, a shift maintenance leadman (a unit employ-
ee) comes in and this occurs on an average of once
a day. Unit electricians work in both areas and
have had the SRP process explained to them. The
Regional Director determined that these employees
were not technicals because they received only 4
months' on-the-job training; no previous experience
was required; there is no degree, license, or regis-
a All dates are 1983 unless indicated otherwise.
s Member Hunter dissented and would have granted review. Chairman
Dotson notes that he did not participate in the underlying representation
case.
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tration requirement; and these employees exercise
no independent judgment in performing their jobs.
Therefore the Regional Director concluded that
these employees should be included in the existing
unit since there was a sufficient community of in-
terest with unit employees, their jobs are a part of
the production process, and they work the same
shifts as, and receive pay comparable to, other unit
employees. The Respondent has not submitted any
new evidence to contradict the above findings.
With respect to the Respondent's assertion that
the utilities technicians do not desire representation
by the Union, we find that factor is not dispositive
here. Moreover, we find that the evidence submit-
ted by the Company to support its contention con-
sists of an unattested memorandum ostensibly
signed by the utilities technicians stating that they
do not want union representation.
With respect to the Respondent's 10(b) argu-
ment, we note that the instant charge was filed on
28 February, approximately 12 days after the Com-
pany refused to bargain pursuant to the Union's re-
quest. This charge is thus well within the 6-month
statute of limitations. Further withdrawal of the
Union's charge in Case 5-CA-14513 on 14 August
1982 does not affect this proceeding because, al-
though the parties are the same, the allegations
contained in Case 5-CA-14513 concerned events
which occurred before the unit clarification pro-
ceeding and the Respondent's February refusal to
bargain. Therefore we find that this proceeding is
not barred by Section 10(b) of the Act. See Selig-
man & Associates, 240 NLRB 110, 115 (1979).
We also find the Respondent's contention that it
was denied due process lacking in merit. The Re-
spondent participated in the hearing in the underly-
ing representation proceeding and thereafter fully
availed itself of the Board's review procedures.
Thus, we can find no evidence that the Company
was denied due process.
On the merits the Respondent has denied para-
graphs 9, 10, and 11 of the complaint which allege
that the Respondent violated the Act by refusing
to bargain with the Union. We find conclusive
proof of the Respondent's refusal in its letter of 15
March to Board Agent Small wherein the Re-
spondent stated, inter alia, "[T]he Company has de-
termined to seek judicial review of the Regional
Director's determination in Case 5-UC-173 ...
and . . . '[T]he Company believes that . . . it has
no duty to bargain with the Union concerning this
classification."' 4 Moreover we find that these state-
ments coupled with the Respondent's actions estab-
lish that the Respondent is attempting in this pro-
4 G.C. Exh. 6.
ceeding to relitigate issues fully litigated and finally
determined in the representation proceeding.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Respondent were or
could have been litigated in the prior representa-
tion proceeding. As noted above the Respondent
does not assert any relevant newly discovered and
previously unavailable evidence, nor does it allege
any special circumstances that would require the
Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that the
Respondent has not raised any issue that is proper-
ly litigable in this unfair labor practice proceeding.
Accordingly we grant the General Counsel's
Motion for Summary Judgment and we deny Re-
spondent's Motion for Summary Judgment and/or
Dismissal.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, en-
gages in the manufacture and nonretail sale and dis-
tribution of printed folding cartons at its facilities
in Richmond, Virginia, where it annually sold and
shipped products valued in excess of $50,000 to
States other than the Commonwealth of Virginia.
We find that the Company is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
I11. ALLEGED UNFAIR LABOR PRACTICES
A. The Representation Proceeding
The Unit
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
and utilities technicians employed at the Com-
pany's Richmond, Virginia plants; excluding
office clerical employees, guards, watchmen,
1204
WESTVACO
professional employees, and supervisors, as de-
fined in the National Labor Relations Act, as
amended.
On 31 December 1958 in Case 5-RC-2625 the
Union was certified as the exclusive bargaining rep-
resentative of employees of the Respondent. On 5
January 1983 in Case 5-UC-173 the Board clarified
the certification in Case 5-RC-2625 by specifically
including the classification of utilities technicians in
the above appropriate unit. The Union continues to
be the exclusive representative under Section 9(a)
of the Act.
B. Refusal to Bargain
Since 9 February 1983 the Union has requested
the Respondent to bargain, and since 16 February
the Respondent has refused. We find that this re-
fusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 16 February to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit. the Respondent has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Westvaco, Virginia Folding Box
Division, Richmond, Virginia, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Bellwood Print-
ing Pressmen, Assistants and Specialty Workers,
Local Union No. 670, as the exclusive bargaining
representative of the employees in the bargaining
unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All production and maintenance employees
and utilities technicians employed at the Com-
pany's Richmond, Virginia plants; excluding
office clerical employees, guards, watchmen,
professional employees and supervisors as de-
fined in the National Labor Relations Act, as
amended.
(b) Post at its facility in Richmond, Virginia,
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER HUNTER, dissenting:
I dissent from the grant of summary judgment in
this case. In the underlying representation proceed-
ing I would have granted review of the Regional
Director's decision to accrete utility technicians
into the production and maintenance unit. The
Board majority denied review, however, and ac-
cordingly the record was not examined by the
Board to determine whether the resulting unit was
appropriate. In my view, the question whether the
unit is appropriate continues, and therefore, I
would deny summary judgment at this time.
s If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Bellwood
Printing Pressmen, Assistants and Specialty Work-
ers, Local Union No. 670, as the exclusive repre-
sentative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All production and maintenance employees
and utilities technicians employed at the Com-
pany's Richmond, Virginia plants; excluding
office clerical employees, guards, watchmen,
professional employees and supervisors as de-
fined in the National Labor Relations Act, as
amended.
WESTVACO, VIRGINIA FOLDING Box
DIVISION
1206