Certain-Teed Products Corp.

National Labor Relations Board - Board Decisions

Aug 18, 1976

225 N.L.R.B. 971 (N.L.R.B. 1976)

CERTAIN-TEED PRODUCTS CORPORATION 971
Certain-Teed Products Corporation and International
Union of United Automobile , Aerospace & Agricul-
tural Implement Workers of America, UAW. Case
9-CA-9859
sors, and assigns, shall take the action set forth in the
said recommended Order.
DECISION
August 18, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On May 26, 1976, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the Charging Party filed
a brief in opposition.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and
to adopt his recommended Order.
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).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Certain-Teed Products,
Corp., Corbin, Kentucky, its officers, agents, succes-
1 The Employer contends in its exceptions that the Hearing Officer and
the Board in the underlying representation proceeding failed to fully consid-
er its objections to certain conduct by the Union We find that the issue of
waiver of initiation fees, both as to the specific contention of the illegality of
certain written materials and the alleged misrepresentation in the solicita-
tion of employees to sign authorization cards, was disposed of in the repre-
sentation proceeding
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed by International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, herein called Union, on No-
vember 25, 1975, and the complaint thereon was issued by
the General Counsel for the National Labor Relations
Board on January 13, 1976, alleging that Certain-Teed
Products Corporation, herein called Respondent or Em-
ployer, violated Section 8(a)(5) and (1) of the National La-
bor Relations Act, as amended, by refusing to recognize,
meet , and bargain with the Union. The answer thereto was
timely filed by Respondent. Pursuant to notice, the hearing
was held before the Administrative Law Judge at London,
Kentucky, on April 28, 1976.
At the hearing, the General Counsel moved for summary
judgment which I granted based on the facts and for the
reasons set forth below.
Ruling on Motion for Summary Judgment
Certain allegations of the complaint were resolved at the
hearing With respect to paragraph 4 of the complaint, Re-
spondent in its answer admits that Richard Wagner is
plant manager, but denied paragraph 4 as alleged on the
grounds that he was not plant manager "At all times mate-
rial" as alleged. This matter was resolved by a stipulation
reciting that Wagner has been plant manager since Octo-
ber 1, 1975.
Paragraphs 5, 6, 7, and 8 are, in order, allegations of
appropriate unit; majority vote for the Union in the May
30, 1974, election, certification by the Board on October
17, 1975; and the status of the Union as the exclusive bar-
gaining representative of the unit employees. Respondent
is not contesting the factual accuracy of these allegations,
but denied them pro forma because of its basic contention.
Its basic contention is that the Respondent has no obliga-
tion to bargain with the Union because the Board certifica-
tion herein is invalid. Since these allegations of paragraphs
5, 6, 7, and 8 are not being contested, except insofar as they
are incident to the Respondent's position with respect to
the propriety of the certification, and further, since these
allegations are supported by documentary evidence (G.C.
Exh. 2(a) through 2(o) ), I conclude that these four allega-
tions of the complaint have been established.
Paragraphs 9 and 10 of the original complaint allege a
request for recognition and bargaining by the Union, and a
refusal to bargain by the Respondent. At the hearing, upon
a motion to amend which I granted, these two paragraphs
were combined into a single paragraph 9,1 alleging, "On or
about November 24, 1975 the Union orally requested Re-
spondent to recognize and bargain with it as the exclusive
1 Subsequent paragraphs of the complaint were renumbered accordingly
225 NLRB No. 140
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees in the unit described in
Paragraph 5 above concerning rates of pay , wages, hours of
employment and other terms and conditions of employ-
ment , and on that same date, an agent of Respondent oral-
ly advised the Union that it did not intend to bargain col-
lectively with it as the representative of the employees in
the unit described in Paragraph 5, above , concerning wag-
es, rates of pay, hours of employment and other terms and
conditions of employment of such employees until the va-
lidity of the Board's certification is established by the
Board and, if necessary, by the court." As so amended,
paragraph 9 was admitted by Respondent.
Paragraphs 10 and 11 (11 and 12 of the original com-
plaint) are essentially conclusionary and remain in issue, as
Respondent acknowledges , only because of its contention
that the underlying certification is invalid.
All parties , including the Respondent , agree that except
as related to Respondent 's contention that the underlying
certification is invalid , none of the allegations of the com-
plaint are in dispute . The General Counsel therefore
moved for summary judgment on the grounds that there
was no litigable issue before me for decision . Respondent
opposed the motion. While conceding that the factual alle-
gations of the complaint are not in issue, the Respondent
nevertheless maintains that there is an outstanding unre-
solved issue as to the validity of the certification which I
must decide, and that its obligation to bargain depends
upon its resolution.
As to the issue of the certification, Respondent recites
the fact that it filed four objections to the election. Subse-
quently, the Regional Director, upon investigation and
without a hearing, issued a report on election, objections to
election and recommendations to the Board recom-
mending that the Employer's objections be overruled in
their entirety.
Upon exceptions thereto filed by Respondent, the Board
ordered the matter referred back to the Regional Director
for the purpose of conducting a hearing , inter aha, in order
to receive evidence as to whether, "as alleged in portions of
objections 1 and 4 , the Petitioner led employees to believe
that its offer to waive initiation fees was available only to
employees who signed authorization cards before the elec-
tion " 2 A hearing was held, and the Hearing Officer rec-
ommended these objections be overruled and a certifica-
tion issued. Respondent filed exceptions to these
recommendations . The Board , however, adopted the Hear-
ing Officer's findings and recommendations and certified
the Union.3
The gravamen of the Respondent's position is that the
Hearing Officer in his report did not rule on the
Respondent's specific contention of illegality in certain
2 Objections I and 4 read
I The Petitioner made substantial misrepresen tations at a time
which prevented the Employer from making an effective reply
written material promulgated by the Union stating that the
Union conditioned the waiver of initiation fees upon the
signing of a union authorization card prior to the election.
Further, that neither did the Board pass on this specific
matter since it summarily affirmed the recommendations
of the Hearing Officer. In these circumstances , it is the
Respondent 's position that its specific contention as to the
coercive effect of the written material should be heard by
me because the Hearing Officer and the Board failed to
rule specifically thereon. The Respondent further takes the
position that the Board erred in its findings as to the other
allegations of objectionable conduct and that I should rule
on those objections also.
I do not agree with either contention . It is clear, as a
matter of Board and court precedent , that findings of the
Board on objections in a prior related representation case
are conclusive in a subsequent unfair labor practice case.
Lyman Printing & Finishing Co, 183 NLRB 1048 , enfd. 437
F.2d 1356 (C.A. 4), cert. denied 404 U.S. 829; Pittsburgh
Plate Glass Co. v. N.L R.B., 313 U.S . 146 (1941); NLRB
Rules and Regulations , Secs. 102.67 (f) and 102.69(c).
Clearly then the Respondent 's contention that those objec-
tions other than the written waiver of initiation fees should
be redetermined herein must fail because these are matters
which have already been litigated and are not litigable
again in this unfair labor practice case. Paramount Metal &
Finishing Co., Inc., 223 NLRB 1337 (1976).
However , Respondent appears to contend that , even as-
suming the general validity of this nonrelitigation rule, the
circumstances herein are distinguishable since the Board,
in its view , has not made necessary specific findings as to
the alleged coercive effect of the above-mentioned initia-
tion fee waiver documents . Accordingly , the certification is
invalid and the specific issue is properly before the Admin-
istrative Law Judge for determination . I disagree. I have
reviewed the relevant representation case documents and
conclude that any assumption that the Board did not con-
sider the specific issue is unwarranted despite the fact that
the Hearing Officer and the Board may have overruled the
objection in issue with less specificity than Respondent
deemed necessary . I do not have the authority to substitute
my judgment for the judgment of the Board when it con-
cluded that the objections should be overruled and the
Union certified. It is significant to note in this regard that
the first paragraph of the Board's Supplemental Decision
and Certification of Representative which reads:
Pursuant to authority granted it under Section 3(b)
of the National Labor Relations Act, as amended, a
three-member panel has considered objections to an
election held on May 30, 1974 , and the Hearing
Officer's Report recommending disposition of same.
The Board has reviewed the record in light of the excep-
tions and briefs and hereby adopts the Hearing
Officer's findings and recommendations . [ Footnotes
omitted ; emphasis supplied.]
P el of from s ch alle ed deficiences lies with either thei u
4 In addition , the Petitioner engaged in a course of conduct which
interfered with the free choice of employees
3 All of the above-mentioned documents are in evidence as part of Board
Exhs 2(a) through 2(o)
g
Board itself , on a motion to reconsider the matter , or with
the appropriate United States circuit court of appeals upon
appeal to that tribunal from the Decision of the Board. In
my view the Respondent did not raise any litigable issue in
CERTAIN-TEED PRODUCTS CORPORATION
this matter and I therefore granted the motion for summa-
ry judgment.
On the basis of the entire record, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Maryland corporation engaged in the
manufacture of fiber insulation at its Corbin, Kentucky,
plant. During the past 12 months, Employer had a direct
outflow of goods and materials in interstate commerce, val-
ued in excess of $50,000 which it sold and caused to be
shipped from its Corbin, Kentucky, plant directly to points
located outside the State of Kentucky. Employer is now
and has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act. The complaint alleges, the answer admits,
and I find that the Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
973
B. The Request To Bargain and Respondent's Refusal
On or about November 24, 1975, the Union orally re-
quested Respondent to recognize and bargain with it as the
exclusive representative of the employees in the unit above,
concerning rates of pay, wages, hours of employment and
other terms and conditions of employment and on that
same date, an agent of Respondent orally advised the
Union it did not intend to bargain collectively with it as a
representative of the employees in the above-described unit
concerning wages, rates of pay, hours of employment and
other terms and conditions of employment of such employ-
ees, until the validity of the Board's certification is estab-
lished by the Board and if necessary, by the court.
Accordingly, I conclude that the Union was duly certi-
fied as the collective-bargaining representative of the em-
ployees of the Respondent described in the Board's certifi-
cation and that the Union at all times since November 24,
1975, refused to bargain collectively in the appropriate unit
and that by such refusal Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges that International Union , United
Automobile , Aerospace and Agricultural Implement
Workers of America, UAW, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act , the answer admits this allegation and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent constitute a
unit appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
All production and maintenance employees at the
Respondent's Corbin, Kentucky, plant, but excluding
quality control employees, store room attendants,
shipping and receiving clerks, all office clerical em-
ployees, professional employees, guards and supervi-
sors as defined in the Act.
2. The certification
On or about May 30, 1974, a majority of the employees
of the Respondent in the above unit by secret ballot elec-
tion conducted under supervision of the Regional Director
for Region 9, designated and selected the Union as their
exclusive bargaining representative for the purposes of col-
lective bargaining with Respondent. On or about October
17, 1975, the Board certified that the Union had been des-
ignated and selected by a majority of the employees of
Respondent in the unit described above, as their exclusive
bargaining representative for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and upon request bargain collectively with
the Union as the exclusive representative of all the employ-
ees in the appropriate unit, and if an understanding is
reached, embody such understanding in a signed agree-
ment.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees at the
Respondent's Corbin, Kentucky, plant, but excluding qual-
ity control employees, store room attendants, shipping and
receiving clerks, 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 17, 1975, the above-named labor orga-
nization has been and now is the certified and exclusive
representative of all employees in the aforesaid appropriate
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about November 24, 1975, and at
all times thereafter , to bargain collectively with the above-
named labor organization as the exclusive bargaining rep-
resentative of all employees of Respondent in the appropri-
ate 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 , 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 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 Sec-
tion 2(6) and (7) of the Act.
On the foregoing findings of fact and conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, I hereby issue the
following recommended:
employed , copies of the attached notice marked "Appen-
dix." 5 Copies of said notice , on forms provided by the
Regional Director for Region 9, after being duly signed by
Respondent 's representative , shall be posted by Respon-
dent 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, de-
faced , or covered by any other material.
(c) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
5In the event that the Board 's 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 "
ORDER4
Respondent, Certain-Teed Products Corporation, Cor-
bin, Kentucky , 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 em-
ployment , with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Ameri-
ca, UAW, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees at the
Respondent 's Corbin, Kentucky, plant , but excluding
quality control employees, store room attendants,
shipping and receiving clerks, all office clerical em-
ployees, professional employees , guards and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the rights guaranteed
them in Section 7 of the Act
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Upon request , bargain with the above-named labor
organization as the exclusive representative of all employ-
ees in the aforesaid appropriate unit with respect to rates of
pay, wages , hours, and other terms and conditions of em-
ployment and, if an understanding is reached , embody
such understanding in a signed agreement.
(b) Post at its offices and places of business in Corbin,
Kentucky, where employees represented by the Union are
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 with In-
ternational Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW, as the exclusive representative of the employ-
ees 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 by Section 7 of the Act.
WE WILL, upon request , bargain with the above-
named Union as the exclusive representative of all em-
ployees in the bargaining unit described below 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 . The bargaining unit is:
All production and maintenance employees at the
Respondent 's Corbin, Kentucky, plant , but exclud-
ing quality control employees, store room atten-
dants, shipping and receiving clerks, all office cleri-
cal employees , professional employees, guards and
supervisors as defined in the Act.
CERTAIN-TEED PRODUCTS CORPORATION