Kilgore Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1974

209 N.L.R.B. 855 (N.L.R.B. 1974)

KILGORE CORP.
Kilgore Corporation and International Union , United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW. Case
26-CA-4792
March 26, 1974
DECISION AND ORDER
Upon a charge and amended charges filed on July
9 and August 1 and 13, 1973, by International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW, herein
called the Union, and duly served on Kilgore
Corporation, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 26,
issued a complaint on September 5, 1973, 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 (j) 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 June 4, 1973,
following a Board election in Case 26-RC-4182 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; i and that, commenc-
ing on or about June 20, 1973, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On September 11, 1973, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On October 1, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment. On October 9, 1973, the Respon-
dent filed a Response to motion for summary
judgment. Thereafter, on October 23, 1973, counsel
for the General Counsel filed a motion to amend
complaint and a motion to amend motion for
summary judgment. Subsequently, on November 7,
1973, the Board issued an order transferring the
proceeding to the Board and granting motions and a
notice to show cause why the General Counsel's
motion for summary judgment should not be
1 Official notice is taken of the record in the representation proceeding,
Case 26-RC-4182. as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See
LTV Electrosyrtenis, i nc, 166 NLRB 938, enfd . 388 F.2d 683 (C A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151 ; enfd. 415 F.2d 26 (C A. 5, 1969);
855
granted. Respondent thereafter filed a response and
answer to the order and to notice to show cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answers to the complaint and amended
complaint and in its response to the notice to show
cause, Respondent contends that the Union was not
properly certified as the representative of its employ-
ees in an appropriate unit because the initial election,
which the Union had not won, had been improperly
set aside by the Board majority. It adopts the
position of the two dissenting Members who would
not have set aside the election. The General Counsel
argues that all material issues have been either
admitted in the Respondent's answer or have been
previously determined in the representation proceed-
ing and may not be relitigated herein. We agree with
the General Counsel.
Our review of the record herein indicates that,
pursuant to the Regional Director's Decision and
Direction of Election, an election was conducted on
May 11, 1972, among the employees in a production
and maintenance unit excluding truckdrivers.2 The
vote was 132 for, and 132 against, the Union with 4
challenged ballots sufficient in number to affect the
results of the election. The Union filed 14 objections
to conduct affecting the results of the election. In his
Supplemental Decision, Order and Direction of June
16, 1972, amended June 19 and July 7, 1972, the
Regional Director, having resolved the determinative
challenged ballots and having found that the election
results would not change, sustained the first of the
Union's objections which related to Respondent's
failure timely to post election notices, made no
resolution of the second and third objections, and
overruled the remaining objections. Accordingly, he
set aside the election and directed a second election.
Respondent's Request for Review of the Supple-
mental Decision was granted by the Board on
August 7, 1972, with respect to the Union's first
objection, and the case was remanded to the
Regional Director for a hearing with respect to the
Union's Objections 2, 3, and 14 (thereafter the
alleged interrogation by Adkins). Prior to the
hearing, the Union requested withdrawal of its other
objections, relying solely on its first one relating to
the Respondent's failure timely to post election
notices. On September 7, 1972, the Regional Director
issued his Second Supplemental Decision, Order and
Intertype Co v. Penello, 269 F.Supp . 573 (D.C.Va., 1967), Follett Corp., 164
NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968), Sec. 9(d) of the NLRA.
2 The Respondent 's timely petition for review objecting to the exclusion
of truckdnvers from the unit was denied by the Board on May 5, 1972.
209 NLRB No. 134
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Recommendation in which he approved the with-
drawal and recommended that the Board sustain his
finding of merit in the Union's first objection and
direct a new election.
Thereafter, the Respondent filed a response to the
second supplemental decision requesting that the
Board reverse the Regional Director's finding of
merit in Objection 1 and certify the results of the
May 11, 1972, election. On April 24, 1973, the full
Board, with Members Kennedy and Penello dissent-
ing, issued a Decision on Review in which it affirmed
the Regional Director's disposition with respect to
the Union's first objection and ordered the holding
of a rerun election in accordance with the supple-
mental decision, as amended. In the second election
conducted on May 24, 1973, of approximately 241
employees in the appropriate unit, 130 cast votes for,
and 83 against,, the Union, and 10 ballots were
challenged. No objections to the election having
been filed, the Regional Director, on June 4, 1973,
certified the Union.
In its answers to the complaint, amended com-
plaint, and response to the notice to show cause,
Respondent admits all the factual averments of the
complaint3 but states that its basis for refusal to
bargain rests solely on the allegations in its Objection
I and on the dissenting opinion in the underlying
representation proceedings. It thus appears that,
whatever its arguments may be, all issues involved in
this proceeding have been previously considered and
determined by the Board.
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
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 shall, accordingly,
grant the motion for summary judgment.
On the basis of the entire record, the Board makes
the following:
' In its answers to the amended complaint, the Respondent admits that
the Union had requested bargaining, but because it had no knowledge of
the date of the request, it demanded strict proof thereof Attached to the
General Counsel's Amended Motion for Summary Judgment is a letter
dated June 18, 1973, which contains a request by the Union to the
Respondent for bargaining In its response to the Notice To Show Cause,
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent Kilgore Corporation, with an office
and place of business in Toone, Tennessee, is
engaged in the manufacture and distribution of
pyrotechnic products. During the past 12 months
Respondent purchased goods valued in excess of
$50,000 directly from points outside the State of
Tennessee and, during the same period, sold from its
Toone, Tennessee, location goods valued in excess of
$50,000 directly to points 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
International Union, United Automobile , Aeros-
pace and Agricultural Implement Workers of Ameri-
ca, UAW, 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,
machinists, research and development employees,
leadmen, assistant foremen and shipping and
receiving department employees employed at
Respondent's Toone, Tennessee, plant, excluding
office clerical employees, office custodian em-
ployees, over-the-road truckdrivers, professional
employees, watchmen, guards, and supervisors as
defined in the Act.
2. The certification
On May 24, 1973, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
the Respondent did not allude to nor controvert the contents of the letter
Accordingly, we shall deem to be true the allegations of the amended
complaint that the Union requested bargaining on or about June 18, 1973
GTE Automatic Electric, Incorporated 207 NLRB No. 152.
4 See Pittsburgh Plate Glass Co v N LR.B, 313 U S 146, 162 (1941);
Rules and Regulations of the Board . Secs 102 67(f) and 102 .69(c).
KILGORE CORP.
Director for Region 26, 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 June 4, 1973, 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 June 18, 1973, 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 June 20, 1973, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since June 20., 1973, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate un t, 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-
857
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; 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. Kilgore Corporation is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. International Union, United Automobile, Ae-
rospace and Agricultural Implement Workers of
America, UAW, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
machinists, research and development employees,
leadmen , assistant foremen and shipping and receiv-
ing department employees employed at Respondent's
Toone, Tennessee, plant, excluding office clerical
employees, office custodian employees, over-the-
road truckdrivers, professional employees, watch-
men, 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 June 4, 1973, 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 June 20, 1973, 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.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Kilgore Corporation, Toone, Tennessee, 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 International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees,
machinists, research and development employees,
leadmen, assistant foremen and shipping and
receiving department employees employed at
Respondent's Toone, Tennessee, plant, excluding
office clerical employees, office custodian em-
ployees, over-the-road truckdrivers, professional
employees, watchmen, 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.
(b) Post at its plant in Toone, Tennessee, copies of
the attached notice marked "Appendix."5 Copies of
said notice, on forms provided by the Regional
Director for Region 26, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 26, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBERS KENNEDY AND PENELLO, dissenting:
For the reasons stated in our dissent in Kilgore
Corporation, 203 NLRB No. 28, we would find that
the first election conducted in the underlying
representation proceeding was improperly set aside
and was a valid election within the meaning of
Section 9(c)(3) of the Act. Accordingly, we find that
the Employer was not obligated to bargain with the
Union by reason of the certification which was
issued on the basis of the second election conducted.
We would deny the General Counsel's motion for
summary judgment and dismiss the complaint.
5 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 Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW, 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 employ-
ees, machinists, research and development
employees, leadmen, assistant foremen and
shipping and receiving department employ-
ees employed at Respondent's Toone, Ten-
nessee , plant, excluding office clerical em-
ployees, office custodian employees, over-
the-road truckdrivers, professional employ-
ees, watchmen, guards, and supervisors as
defined in the Act.
KILGORE CORPORATION
(Employer)
Dated By
(Representative) (Title)
KILGORE CORP. 859
This is an official notice and must not be defaced Any questions concerning this notice or compli-
by anyone. ance with its provisions may be directed to the
This notice must remain posted for 60 consecutive Board's Office, Clifford Davis Federal Building,
days from the date of posting and must not be Room 746, 167 North Main Street, Memphis,
altered, defaced, or covered by any other material. Tennessee 38103, Telephone 901-534-3161.