Kransco Mfg., Inc.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1419 (N.L.R.B. 1980)

KRANSCO MANUFACTURING, INC. 1419 Kransco Manufacturing, Inc. and International Longshoremen's and Warehousemen's Union, Local 6. Case 20-CA- 15051 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on December 26, 1979, by International Longshoremen's and Warehousemen's Union, Local 6, herein called the Union, and duly served on Kransco Manufacturing, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 20, issued a complaint and notice of hearing on January 9, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 and the 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 August 17, 1979, following a Board election in Case 20-RC- 14713, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about December 21, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On January 16, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On January 31, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 7, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. I Official notice Is taken of the record in the representation proceed- ing, Case 20-RC-14713, 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 Electrosystems Inc., 166 NLRB 938 (1967), enfd. 388 F2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir 1969); Intertype Co. v Penello, 269 F.Supp. 573 (DC.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd 397 F2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA. as amended 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. 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 and in its response to the Notice To Show Cause, Respondent admits that it refused the Union's request to bargain. How- ever, for the reasons set forth in its objections to the election, Respondent asserts that the Union was not properly certified and that it properly refused to bargain with the Union as the exclusive bargain- ing representative of its employees. A review of the record herein, including that in Case 20-RC-14713, reveals that pursuant to a De- cision and Direction of Election which issued on November 30, 1978, an election by secret ballot was conducted on April 6, 1979, resulting in a vote of 51 votes for and 31 against the Union, with no challenged ballots. Thereafter, Respondent filed timely objections to conduct affecting the election. Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Region- al Director conducted an investigation, and on May 23, 1979, issued a Supplemental Decision and Notice of Hearing and ordered that a hearing be held to resolve issues raised by certain of Respond- ent's objections2 which alleged that the Union had interfered with the election by promising employ- ees that they would receive a preferential dispatch from the Union's hiring hall as well as other bene- fits and that a union pension plan would immedi- ately be put into effect if the Union won the elec- tion. Subsequent to the hearing, the Hearing Offi- cer issued a report in which he recommended that Respondent's objections be overruled in their en- tirety and that the Union be certified. Respondent filed timely exceptions, and on August 30, 1979, the Regional Director issued a Second Supplemen- tal Decision which found no merit to Respondent's exceptions and certified the Union. Thereafter Re- spondent filed a timely request for review of the Regional Director's decision, and, on November 13, 1979, the Board denied Respondent's request for review.3 2 The remaining objections set for hearing were withdrawn by Re- spondent s Member Penello notes that he did not participate in the Board's denial of Respondent's request for review in Case 20-RC-14713 After reviewing the record therein, he notes that, for the reasons set forth in Shopping Karr FWnod Market. Inc., 238 NLRB 1311 (1978), he would not set aside the election based upon Respondent's objections insofar as they alleged misrepresentation In joining his colleagues in granting the Gener- Continued 1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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 Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a Cali- fornia corporation, with an office and place of busi- ness in South San Francisco, California, has been engaged in the manufacture and wholesale sale of plastic products. During the calendar year ending December 31, 1978, Respondent, in the course and conduct of its business operations described above, sold and shipped from its South San Francisco, California, facilities products, goods, and materials valued in excess of $50,000 directly to points out- side the State of California. We find, on the basis of the foregoing, that Re- spondent 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 Longshoremen's and Warehouse- men's Union, Local 6, is a labor organization within the meaning of Section 2(5) of the Act. al Counsel's Motion for Summary Judgment. Member Penello continues to adhere to the sound principles of Shopping Kurt. See his dissenting opinion in General Knit of California. Inc., 239 NLRB 619 (1978). 4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(f) and 102.6 9 (c). III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All year round and seasonal production and maintenance employees, including shipping and receiving employees, warehouse employ- ees, and truck drivers employed by Respond- ent at its 435 and 441 Kauffman Court and 464 Victory Avenue, South San Francisco loca- tions; excluding office clerical employees, sales employees, the engineer, guards and supervi- sors as defined in the Act. 2. The certification On April 6, 1979, 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 20 designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on August 17, 1979, 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 December 17, 1979, and at all times thereafter, the Union has requested 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 December 21, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 21, 1979, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. KRANSCO MANUFACTURING, INC. 1421 IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI.USIONS OF LAW 1. Kransco Manufacturing, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Longshoremen's and Warehouse- men's Union, Local 6, is a labor organization within the meaning of Section 2(5) of the Act. 3. All year round and seasonal production and maintenance employees, including shipping and re- ceiving employees, warehouse employees, and truck drivers employed by Respondent at its 435 and 441 Kauffman Court, and 464 Victory Avenue, South San Francisco locations; excluding office clerical employees, sales employees, the engineer, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since August 17, 1979, 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 December 21, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 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 Re- lations Board hereby orders that the Respondent, Kransco Manufacturing, Inc., South San Francisco, California, its officers, agents, successors, and as- signs, 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 Long- shoremen's and Warehousemen's Union, Local 6, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All year round and seasonal production and maintenance employees, including shipping and receiving employees, warehouse employ- ees, and truck drivers employed by Respond- ent at its 435 and 441 Kauffman Court and 464 Victory Avenue, South San Francisco loca- tions; excluding office clerical employees, sales employees, the engineer, guards and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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: 1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its South San Francisco, California, locations copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms pro- vided by the Regional Director for Region 20, 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 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. s 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Relations Board" APPENDIX NOTICE To EMPI.OYEES 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 International Longshoremen's and Ware- housemen's Union, Local 6, as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All year round and seasonal production and maintenance employees, including shipping and receiving employees, warehouse em- ployees, and truck drivers employed by Re- spondent at the 435 and 441 Kauffman Court and 464 Victory Avenue, South San Francsco locations; excluding office clerical employees, sales employees, the engineer, guards and supervisors as defined in the Act. KRANSCO MANUFACTURING, INC.