Olin Corp.

National Labor Relations Board - Board Decisions

Oct 11, 1974

214 N.L.R.B. 63 (N.L.R.B. 1974)

OLIN CORPORATION
Olin Corporation and Textile Workers Union of
America, AFL-CIO-CLC. Case 8-CA-8244
October 11, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on March 15, 1974, by Textile
Workers Union of America, AFL-CIO-CLC, herein
called the Union, and duly served on Olin Corpora-
tion, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 8, issued a com-
plaint and amendment to the complaint on April 15
and May 2, 1974, respectively, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(5) and (1)
and 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 pro-
ceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on February 7, 1974,
following a Board election in Case 8-RC-8703 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about March 1, 1974, and at all times there-
after, 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
April 24, 1974, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On May 13, 1974, counsel for the General Counsel
filed directly with the Board a motion for summary
judgment. Subsequently, on May 22, 1974, the Board
issued an order transferring the proceeding to the
Board and a notice to show cause why the General
Counsel's motion for summary judgment should not
be granted. Respondent thereafter filed a response to
notice to show cause.
Pursuant to the provisions of Section 3(b) of the
1 Official notice is taken of the record in the representation 'proceeding,
Case 8-RC-8703, 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 F .2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967):
Follett Corp., 164 NLRB 378 (1967), enfd . 397 F.2d 91 (C.A. 7, 1968): Sec.
9(d) of the NLRA.
63
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 contends
that the Union's certification is invalid because the
first election in the underlying representation case
was improperly set aside and the second election was
invalid because two determinative challenges were
improperly resolved by the Board. We do not accept
these contentions.
Our review of the record herein, including the rec-
ord in Case 8-RC-8703, reveals that an election
conducted on September 22; 1972, pursuant to a stip-
ulation for certification upon consent election result-
ed in a vote of 28 for, and 28 against, the Union, with
no challenged ballots. The Union filed timely objec-
tions to the election. After investigation, the Acting
Regional Director issued a report on objections
recommending that an objection relating to
Respondent's misrepresentations concerning acci-
dent and sickness benefits be sustained and the re-
mainder overruled, that the election be set aside, and
that a new election be directed. Respondent filed ex-
ceptions to the Acting Regional Director's report on
objections and a supporting brief. Thereafter, on
February 13, 1973, the Board issued a Decision, Or-
der, and Direction of Second Election in which it
found that the Respondent's exceptions raised no
material or substantial issues of fact or law warrant-
ing reversal of the Acting Regional Director. Accord-
ingly, it adopted the Acting Regional Director's find-
ings, conclusions, and recommendation that the elec-
tion be set aside and a second election directed.
The tally of ballots, issued after the rerun election
was conducted on March 23, 1973, indicated that 26
ballots were cast for, and 26 against, the Union, with
2 challenged ballots. After investigation, the Acting
Regional Director issued his report on challenged
ballots in which he recommended that a hearing be
held to resolve the issues raised by the challenged
ballots. Respondent filed exceptions to the Acting
Regional Director's report and requested that the
challenges be sustained. The Board subsequently on
June 13, 1973, issued an Order Directing Hearing,
finding that the exceptions raised no material or sub-
stantial issues warranting reversal of the Acting Re-
gional Director. After the hearing, the Hearing Offi-
cer issued his report on challenged ballots in which
he recommended that the challenge to one ballot be
214 NLRB No. 14
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sustained and the challenge to the other ballot be
overruled. Both Respondent and the Union filed ex-
ceptions to the Hearing Officer's report. On January
22, 1974, the Board issued a Supplemental Decision
and Direction to Open and Count Challenged Ballots
in which it overruled the challenges to both chal-
lenged ballots and directed that the Regional Direc-
tor open and count them and issue the appropriate
certificate. After the ballots were opened and count-
ed, a revised tally of ballots was issued showing that
a majority of the employees in the stipulated unit had
selected the Union as their exclusive bargaining
agent. On February 7, 1974, the Regional Director
certified the Union. In its response to the notice to
show cause, Respondent reiterates the representation
case contentions that the first election was improper-
ly set aside and that the challenges to the two chal-
lenged ballots cast in the second election should have
been sustained. It thus appears that Respondent is
attempting to relitigate matters previously considered
and determined by the Board.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision 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:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent annually ships products valued in excess
of $50,000 from its Oakwood plant directly to points
outside the State of Ohio.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
If. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America , AFL-CIO-
CLC, 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 con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
including regular part-time employees of the
Employer employed at its Oakwood, Ohio, facil-
ity, but excluding all office clerical employees
and professional employees, guards and supervi-
sors as defined in the Act.
2. The certification
On March 23, 1973, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Acting Re-
gional Director for Region 8, designated the Union
as their representative for the purpose of collective
bargaining with the Respondent. The Union was cer-
tifiedas the collective-bargaining representative of
the employees in said unit on February 7, 1974, and
the Union continues to be such exclusive representa-
tive within the meaning of Section 9(a) of the Act.
Respondent, a Delaware corporation with its prin-
cipal office and place of business in Stamford, Con-
necticut, operates a facility at Oakwood, Ohio, where
it engages in the manufacture of tents and related
camping equipment. The Oakwood facility of the Re-
spondent is the only one involved in this proceeding.
2 See Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs . 102.67(f) and 102 .69(c).
B. The Request To Bargain and Respondent's Refusal
Commencing on or about February 20, 1974, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about March 1, 1974, and continuing at all
OLIN CORPORATION
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.
Accordingly, we find that the Respondent has,
since March 1, 1974, 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, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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, inti-
mate, 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Olin Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
65
2. Textile Workers Union of America, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding regular part-time employees of the Employer
employed at its Oakwood, Ohio, facility, but exclud-
ing all office clerical employees and professional em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since February 7, 1974, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 1, 1974, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 mean-
ing of Section 8(a)(I) 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 Re-
lations Board hereby orders that Respondent, Olin
Corporation , Oakwood, Ohio, 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 con-
ditions of employment with Textile Workers Union
of America, AFL-CIO-CLC, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All production and maintenance employees,
including regular part-time employees of the
Employer employed at its Oakwood, Ohio, facil-
ity, but excluding all office clerical employees
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and professional employees, guards and supervi- APPENDIX
sors 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 facility in Oakwood, Ohio, copies of
the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 8, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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 8', in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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."
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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Tex-
tile Workers Union of America, AFL-CIO-
CLC, as the exclusive representative of the em-
ployees 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees, including regular part-time employees of
the Employer employed at its Oakwood,
Ohio, facility, but excluding all office clerical
employees and professional employees,
guards and supervisors as defined in the Act.
OLIN CORPORATION