GAF Corp.

National Labor Relations Board - Board Decisions

Jun 5, 1975

218 N.L.R.B. 265 (N.L.R.B. 1975)

GAF CORPORATION 265
GAF Corporation and Texas City Metal Trades
Council, AFL-CIO. Case 23-CA-5421
June 5, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on January 14, 1975, by Texas
City Metal Trades Council, AFL-CIO, herein called
the Union, and duly served on GAF Corporation,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 23, issued a complaint
on January 24, 1975, 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 29,
1974, following a Board election in Case 23-RC-
3994 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropfiate;1 and that,
commencing on or about January 13, 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.
On January 31, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint, and asserting an
affirmative defense. With the exceptions noted infra,
Respondent admits the factual allegations of the
complaint, but denies the validity of the, Union's
certification on the ' basis that the Union does not
represent a majority, of the employees in the unit.
On March 5, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, asserting that Respondent, by its answer
to the complaint, is ' attempting to relitigate issues
which were raised and litigated in the underlying
representation proceeding. Subsequently, on March
17, 1975, the Board , ii sued an order transferring the
proceeding to the Board and a Notice To Show
1 Official notice is taken of the record in the representation proceeding,
Case 23-RC-3994, 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 Eleetrosystems, Inc., 166' NLRB 938 (1967), enfd. 388 F .2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (11967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1957);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C A. 7,1968); Sec.
9(d) of the NLRA.
218 NLRB No. 45
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, entitled "GAF Reply to the NLRB's General
Counsel's Motion for Summary Judgment."
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 2 and response to the
Notice To Show Cause, Respondent, as noted above,
generally admits the factual allegations of the
complaint. It asserts, however, .that the Union did
not receive a majority of the votes cast in the election
because the Board erred in sustaining the challenge
to the determinative ballot of one Winfred Douglas
Reed, and thus the certification of the Union by the
Board is invalid.
We have reviewed the representation case record
and the issue of the challenge to Reed's ballot was
raised before and considered by the Acting Regional
Director, who recommended that it be overruled in
his Report and Recommendation on Challenged
Ballot issued on October 12, 1973. Upon the Union's
exceptions to this report, the Board ordered a hearing
on the issues raised by the challenge, which resulted
in a Hearing Officer recommending that the chal-
lenge be overruled in his Report on Challenged
Ballot issued May 14, 1974. The Union again
excepted, and on October 29, 1974, the Board issued
a Decision and Certification of Representative 3 in
which it sustained the challenge to Reed's ballot and
certified the Union. Respondent's request for recon-
sideration thereof was denied by order of January 7,
1975.
It thus appears that Respondent is attempting to
litigate an issue which was raised and litigated at
length in the underlying representation proceeding.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
2 In its answer to the complaint , Respondent alleges that it is "without
knowledge" with regard to the allegation that the Union is a labor
organization , which constitutes a denial pursuant to Sec . 102.20 of the
Board's Rules and Regulations . Inasmuch as the Board found the Union to
be a labor organization in its Decision and Certification of Representative,
this issue may not be relitigated herein . Cherokee Nitrogen Co., 200 NLRB
630, 631, fn. 4 (1972).
3 214 NLRB No. 67.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to ; relitigate issues which were or could have been
litigated in a prior representation proceeding.4
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.
We note, however, that the complaint does not
allege that the Union requested bargaining with
Respondent. It does allege that shortly after the
Board's January 7, 1975, denial of Respondent's
request for reconsideration Respondent posted on
the employee bulletin board and subsequently
mailed to the Union a statement which, in substance,
expressed disagreement with the Board's several
rulings and an intent to challenge said rulings in
court, and indicating that to do so it was refusing to
recognize and negotiate with the Union. In its answer
to the complaint, Respondent denies the precise
wording alleged, but admits that a statement was
made to employees of similar import, and admits
refusing to bargain due to its good-faith doubt of the
Union's representative status. Whatever the lan-
guage, it appears that the parties agree that a
statement was made by Respondent indicating that it
was not intending to abide by the Board's certifica-
tion of the Union and that it would challenge it in
court. In view of this statement, it is clear that a
request to bargain by the Union would have been a
futile gesture. In these circumstances, we conclude a
request to bargain was not required since it would
have been a futile act.5
Accordingly, we shall giant the General Counsel's
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 a Delaware corporation with its
principal office in New York, New York, and is
engaged in the manufacturing of chemicals through
its manufacturing facility at Texas City, Texas.
During the past 12 months, a representative period,
Respondent in the course and conduct of its business
operations as }described herein had sales of goods and
shipped goods valued in excess of $50,000 directly to
points outside the State of Texas.
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.
IT. THE LABOR ORGANIZATION INVOLVED
Texas City Metal Trades Council , AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following' employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of
GAF Corporation, at its Texas City, Texas, plant,
including all utility, laboratory and warehouse
employees; - but excluding all office clerical
employees, administrative and professional em-
ployees, contracted maintenance employees, jani-
tors, guards, watchmen and supervisors as defined
in the Act.
2. The certification
On September 14, 1973, a majority of the employ-
ees of -Respondent in said unit, in a, secret ballot
election conducted under the supervision of the
Regional Director for Region 23 designated the
Union as , their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on
October 29, 1974, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. Respondent's Refusal To Bargain
Commencing on or about January 13, 1975, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit. -
4 See Pittsburgh Plate Glass Co. v. N.LB.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102 67(1) and 102.69(c).
5 Cf. Old Town Shoe Company, 91 NLRB 240 (1950), and cases cited in
fn. 4 therein
GAF CORPORATION 267
Accordingly, we find that the Respondent has,
since January 13, 1975, 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.
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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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); Burnett 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. GAF Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Texas City Metal Trades Council, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees of
GAF Corporation, at its Texas City, Texas, plant,
including all utility, laboratory and warehouse
employees; but excluding all office clerical employ-
ees, administrative and professional employees,
contracted maintenance employees, janitors, guards,
watchmen 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 29, 1974, 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 13, 1975, 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,
GAF Corporation, Texas City, Texas, 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 employment with Texas City Metal
Trades Council, AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All production and maintenance employees of
GAF Corporation, at its Texas City, Texas, plant,
including all utility, laboratory and warehouse
employees; but excluding all office clerical
employees, administrative and professional em-
ployees, contracted maintenance employees, jani-
tors, guards , watchmen and supervisors as defined
in the Act.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 fmds 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.
(b) Post at its Texas City, Texas, facility copies of
the attached notice marked "Appendix.' 16 Copies of
said notice, on forms provided by the Regional
Director for Region 23, 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 there-
after, 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 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 Texas
City Metal Trades Council, 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 employees
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 employees
of GAF Corporation, at its Texas City;
Texas, plant, including all utility, laboratory
and warehouse employees; but excluding all
office clerical employees, administrative and
professional employees, contracted mainte-
nance employees, janitors, guards, watch-
men and supervisors as defined in the Act.
GAF CORPORATION
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