Pak-Well

National Labor Relations Board - Board DecisionsOct 3, 1973

206 N.L.R.B. 260 (N.L.R.B. 1973)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richmond, Division of Pak-Well and Aluminum Work- ers International Union, AFL-CIO. Case 31- CA-3668 October 3, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on March 28, 1973, by Alumi- num Workers International Union, AFL-CIO, herein called the Union, and duly served on Richmond, Di- vision of Pak-Well, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint on May 4, 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 (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 proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on March 9, 1973, following a Board election in Case 31-RC-2166 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about March 23, 1973, and at all times thereaf- ter, 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 May 14,1973, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint and raising three affirmative defenses. On May 31, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On June 7, 1973, Respondent filed opposi- tion. Subsequently, on June 8, 1973, 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 grant- ed. Respondent thereafter filed a response to Notice 1 Official notice is taken of the record in the representation proceeding, -Case 31-RC-2166, 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 Electrosystems, Inc., 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); 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. To Show Cause entitled "Opposition to General Counsel's Motion for Summary Judgment." 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 Respondent's answer to the complaint herein at- tacks determinations made in the underlying repre- sentation case . Thus, in its denials and affirmative defenses , Respondent contends that certain alleged union preelection conduct , more fully described be- low, especially in view of the closeness of the vote, vitiates the validity of the Union's certification and the Union's majority status or , at the very least, war- rants, the holding of a hearing . In its response, Re- spondent candidly states that it is in effect - requesting reconsideration of issues already decided adversely to it in the representation case , and that it offers no newly discovered evidence nor other specific circum- stance of the kind which normally must be asserted to oppose successfully a motion for summary judgment. Our review of the record in Case 31-RC-2166 indi- cates that pursuant to a Stipulation for Certification Upon Consent Election an election was conducted on September 27, 1972, in the appropriate unit . The tally of ballots indicates that of approximately 142 eligible voters, 67 cast ballots for, and 65 against, the Union. No ballots were challenged or void . Thereafter, Re- spondent timely filed six objections to conduct affect- ing the results of the election which alleged that the Union had made misrepresentations , coerced and in- timidated employees, trespassed on Respondent's property and physically assaulted a supervisor, im- properly induced employees to vote for it, and im- properly used portions of the Board 's notice of election in its own propaganda . After investigation, the Regional Director, on November 13, 1972, issued his Report on Objections , in which he recommended that the objections be overruled in their entirety. Sub- sequently , Respondent filed with the Board excep- tions to the Regional Director's report , contending that its objections , especially in view of the closeness of the election, should not have been overruled and that it was entitled to a hearing on the substantial issues raised by the objections. However , on March 9, 1973, the Board issued its Decision and Certification of Representative in which it adopted the Regional Director's findings and recommendations, finding that the exceptions raise' no material or substantial issues of fact or law which warrant either reversal of 206 NLRB No. 42 RICHMOND, DIV. OF PAK-WELL 261 the Regional Director's findings and recommenda- tions or require the holding of a hearing.2 In its denials of the allegations of the complaint and in its response, the Respondent reiterates the same contentions and its request for a hearing. With respect to Respondent's contention that a hearing is warrant- ed herein, it is well established that parties do not have an absolute right to a hearing on objections to an election. It is only when the moving party presents a prima facie showing of "substantial and material is- sues" which would warrant setting aside the election that it is entitled to an evidentiary hearing.' Respon- dent has presented us with no such showing nor do we believe that the closeness of the election compels a hearing otherwise unwarranted." It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing 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. The Respondent also denies 6 that the Union re- quested bargaining. However, counsel for the General Counsel attached to his Motion for Summary Judg- ment a number' of exhibits. Exhibit D is a letter from the- Union to the Respondent dated March 12, 1973, which states: "Prior to meeting with you for the pur- pose of negotiating an agreement, the Union is re- questing the following information: A list of all employees[,] [s]eniority dates . . . [r]ate of pay .. . [l]ist of all classifications. . . . As soon as we receive this information and have a chance to digest it, I will contact you for the purpose of beginning negotia- tions." Exhibit E, dated March 23, 1973, is Respondent's reply to the Union which states that 2 The Board fully considered Exh. B of the exceptions , a letter "To our future members," which Respondent resubmitted in its response as Exh. G. 3 Farah Manufacturng Company, Inc, 203 NLRB No. 78, and cases cited therein . 4 See Henderson Trumbull Supply Corporation, 205 NLRB No. 8, and Mod- ine Manufacturing Company, 203 NLRB No. 77. 5 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). 6 Although the Respondent 's answer denies the date of the filing of the charge and the Union's status as a labor organization , we note that the response admits these allegations , and they are found to be true Respondent believes the certification to be improper and adds: "Therefore, the [Respondent] will not enter into collective bargaining negotiations with the [U]nion at this time. Thus, it would be inappropriate to supply you with the information requested in your letter." Respondent characterizes the Union's letter as a request for information to be used in bargaining, and not a request to bargain. We disagree because the Board has found that a request for relevant informa- tion constitutes a request for bargaining and that a refusal to honor such a request constitutes a refusal to bargain? We shall, accordingly, 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 THE RESPONDENT Respondent is, and has been at all times material herein, a corporation engaged in the manufacture of paper and plastic packaging products at its Redlands, California, plant. In- the normal course and conduct of its business operations, Respondent annually sells and ships goods valued in excess of $50,000 from its Redlands plant directly to customers located outside the State of California. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Aluminum Workers International Union, 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees, including shipping and receiving employees; 7 See, e.g., Rod-Ric Corporation, 171 NLRB 922, enfd. 428 F.2d 948 (C.A. 5, (1970) ). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pickup and delivery drivers, and quality control employees of the Respondent at its Redlands, California, plant; excluding all office clerical em- ployees, professional employees,, watchmen, guards, and supervisors as defined in the Act. 2. The certification On August 16, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional. Di- rector for Region 31, 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 March 9, 1973, and the Union contin- ues 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 March 12, 1973, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the, exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 23, 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 representative for collec- tive bargaining of all employees in said unit. Respondent admits that on or about March 26, 1973, it unilaterally, without notice to or bargaining with the certified Union, granted 'a wage increase to the employees in the appropriate unit. Accordingly, we find that the Respondent has, since March 23, 1973, 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 practic- es within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF,THE UNFAIR LAh-._ PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations, described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 appropriate 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 select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Com- merce 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. Richmond, Division of Pak-Well, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Aluminum Workers International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, in- cludingshipping and receiving employees, pickup and delivery drivers , and quality control employees of the Respondent at its Redlands, California , plant; ex- cluding all office clerical employees , professional em- ployees , watchmen , guards, and supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since March 9, 1973, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 March 23, 1973, 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 'Respon- RICHMOND , DIV. OF PAK-WELL 263 dent in the appropriate unit and by unilaterally, with- out notice to or bargaining with the certified Union, granting a wage increase to the employees in the unit on March 26, 1973, Respondent had engaged in and is engaging in unfair labor practices within the mean- ing 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)(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 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 Redlands, California, plant copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Direc- tor for Region 31, 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 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 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Rich- mond, Division of Pak-Well, 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 condi- tions of employment with Aluminum Workers Inter- national Union , AFL-CIO, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All production and maintenance employees, including shipping and receiving employees, pickup and delivery drivers, and quality control employees of the Respondent at-its Redlands, California, plant; excluding all office clerical em- ployees, professional employees, watchmen, guards, and supervisors as defined in the Act. (b) Granting any wage increase or otherwise alter- ing the terms and conditions of employment of any employee in the aforesaid unit without notification to, consultation and, if requested, bargaining with, the Union. (c) 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 8 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Alu- minum Workers International Union, AFL- CIO, as the exclusive representative of the em- ployees in the bargaining unit described below. WE-WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. 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 con- cerning rates of pay, wages, hours, and other 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms and conditions of employment with Alu- minum Workers International Union, AFL- CIO, as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere with, restrain or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL NOT grant any wage increase or other- wise alter the terms and conditions of employ- ment of any employee in the unit without notification to, consultation and, if requested, bargaining with, the Union. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and othe terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is: All production and maintenance employees, including shipping and receiving employees, pickup and delivery drivers, and quality con- trol employees of the Employer at its Red- lands, California, plant; excluding all office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. RICHMOND, DIVISION OF PAK-WELL (Employer) Dated By (Representative). (Title) This is an official notice and must not be defaced by anyone. This.notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. Any questions concerning this notic or compliance with its provisions, may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wil- shire Boulevard, Los Angeles, California 90024, Tele- phone 213-824-735. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative 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 un- derstanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, including shipping and receiving employees, pickup and delivery drivers, and quality con- trol employees of the Employer at its Red- lands, California, plant; excluding all office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. RICHMOND, DIVISION OF PAK-WELL (Employer) Dated By (Representative) {Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's' Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-735.