Piper Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1974

215 N.L.R.B. 368 (N.L.R.B. 1974)

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Piper Industries , Inc., Plastic Products Division and
United Rubber , Cork, Linoleum and Plastic Work-
ers of America, AFL-CIO. Case 15-CA-5390
December 6, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on August 19, 1974, by United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, herein called the Union, and duly
served on Piper Industries, Inc., Plastic Products Divi-
sion, herein called the Respondent, the General Coun-
sel of the National Labor Relations Board, by the Re-
gional Director for Region 15, issued a complaint on
August 29, 1974, against Respondent, alleging that Re-
spondent has 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 com-
plaint alleges in substance that on July 17, 1974, follow-
ing a Board election of Cases 15-RC-5187 and
15-RC-5189, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;' and
that, commencing on or about June 3, 1974, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting to do
so, and has unilaterally changed wages of employees in
the unit. On September 5, 1974, Respondent filed its
answer to the complaint admitting in part, and denying
in part, the allegations in the complaint, and submitting
two affirmative defenses.
On September 9, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, asserting that Respondent, by its
answer to the complaint, admits having engaged in
conduct violative of the Act, and is attempting to reliti-
gate issues raised and litigated in the underlying rep-
resentation proceeding. Subsequently, on September
I Official notice is taken of the record in the representation proceeding,
Cases 15-RC-5187 and 15-RC-5189, 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 LTVElectrosystems, 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., 1957); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(C.A. 7, 1968); Sec. 9(d) of the NLRA.
23, 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 Judg-
ment should not be granted. Respondent thereafter
filed a response to Notice To Show Cause.
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 response to the
Notice to Show Cause, Respondent opposes the Motion
for Summary Judgment on the grounds that the certifi-
cation issued the Union in the underlying representa-
tion proceeding is invalid because of an improper unit
determination and the erroneous resolution of its objec-
tions to the election.
Review of the representation proceeding record,
which is before us, indicates that the Respondent
sought a separate unit at each of its plants, whereas the
Union and the intervening labor organizations sought
a single unit for both plants. Following a hearing, the
Regional Director issued a Decision and Direction of
Election, finding appropriate a single unit, and direct-
ing an election therein. Respondent filed a request for
review of this determination, reasserting its contention
before the Board that the single unit was inappropriate.
On August 30, 1973, the Board denied the Respon-
dent's request for review as it raised no substantial
issues warranting review. The first election was incon-
clusive, and a runoff election was conducted, in which
the Union prevailed. Respondent and the intervening
labor organization filed timely objections to the elec-
tion, asserting that Respondent's sending home a num-
ber of employees and the failure to update the eligibility
list rendered the election nonrepresentative. On Janu-
ary 23, 1974, the Regional Director issued a Second
Supplemental Decision and Certification of Represen-
tative, in which he found, inter alia, that no eligible
employees had been foreclosed from voting and that a
representative number had participated in the election.
Thereafter, Respondent requested review of the Re-
gional Director's decision, reasserting its contentions
before the Board. On March 4, 1974, the Board granted
the Respondent's request for review. Upon full consid-
eration of the record, the Board, on July 17, 1974,
issued a Decision on Review and Certification of
Representative,' adopting the findings and recom-
z Piper Industries, Inc., Plastic Products Division , 212 NLRB No. 66
(1974).
215 NLRB No. 68
PIPER INDUSTRIES, INC.
mendations of the Regional Director and certifying the
Union.
It thus appears that we have previously considered
the Respondent's contentions both as to the unit and
the objections to the election.
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 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
I THE BUSINESS OF THE RESPONDENT
Respondent, a Tennessee corporation, is licensed to
do, and is doing, business at a facility in Jackson, Mis-
sissippi, where it is engaged in the production of
molded plastic products and television cabinets. Dur-
ing the past 12 months, which period is representative
of all times material herein, Respondent purchased and
received goods valued in excess of $50,000 at its Jack-
son, Mississippi, facility directly from points located
outside the State of Mississippi. During the same
period, Respondent sold and shipped goods and
materials valued in excess of $50,000 from its Jackson,
Mississippi, facility directly to purchasers located out-
side the State of Mississippi.
We find, on the basis of the foregoing, that Respond-
ent 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.
3 See Pittsburgh Plate Glass Co v NLR B., 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102 67(1) and 102 69(c)
Respondent denies the appropriateness of the unit in its answer to the
complaint This issue, having been raised and litigated, both before the
Regional Director and the Board, in the representation case, may not be
relitigated herein Cherokee Nitrogen Company, 200 NLRB 630 (1972)
11 THE LABOR ORGANIZATION INVOLVED
369
United Rubber, Cork, Linoleum and Plastic Work-
ers of America, 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 em-
ployed by Employer at its plastic molding and
cabinet plants , located in Jackson, Mississippi, ex-
cluding office clerical employees , professional em-
ployees, guards and supervisors as defined in the
Act.
2. The certification
On November 28, 1973, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Direc-
tor for Region 15, designated the Union as their rep-
resentative 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 July 17, 1974, 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 February 4, 1974, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on or
about June 3, 1974, and continuing at all times the-
reafter to date, the Respondent has refused, and contin-
ues to refuse, to recognize and bargain with the Union
as the exclusive representative for collective bargaining
of all employees in said unit, and has unilaterally
changed the existing wage rates of employees in the
unit.
Accordingly, we find that the Respondent has, since
June 3, 1974, 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, Respondent has engaged in
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive rep-
resentative of all employees in the appropriate unit,
and, if an understanding is reached , embody such un-
derstanding in a signed agreement , and cease and desist
from unilaterally changing the existing wage rates of
employees in the unit.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences 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); Com-
merce Company d/b/a Lamar Hotes 140 NLRB 226,
229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert.
denied 379 U.S. 817 ( 1964); Burnett Construction Com-
pany, 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:
clerical employees, professional employees, guards and
supervisors as defined in the Act constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since July 17, 1974, the above-named labor organ-
ization has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about June 3, 1974, 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, and by unilaterally changing the
wage rates of employees in the 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 and unilateral
wage changes, Respondent has interfered with, re-
strained, and coerced, and is interfering with, restrain-
ing, 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 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 Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Piper Indus-
tries, Inc., Plastic Products Division, Jackson, Missis-
sippi, 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 United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, as the
exclusive bargaining representative of its employees in
the following appropriate unit:
CONCLUSIONS OF LAW
1. Piper Industries, Inc., Plastic Products Division,
is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Employer at its plastic molding and cabinet
plants, located in Jackson, Mississippi, excluding office
All production and maintenance employees em-
ployed by Employer at its plastic molding and
cabinet plants, located in Jackson , Mississippi, ex-
cluding office clerical employees , professional em-
ployees , guards and supervisors as defined in the
Act.
and unilaterally changing wages of employees in said
appropriate unit.
PIPER INDUSTRIES, INC.
(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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Jackson, Mississippi, facility copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 15, after being duly signed by Respon-
dent's representative, 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 al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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."
371
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 United Rub-
ber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed below, or unilaterally change the wages of
the employees in said unit.
WE WILL NOT in any like or related manner inter-
fere 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 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 understanding is reached, embody such under-
standing in a signed agreement. The bargaining
unit it:
All production and maintenance employees
employed by Employer at its plastic molding
and cabinet-plants, located in Jackson, Missis-
sippi, excluding office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
PIPER INDUSTRIES, INC., PLASTIC
PRODUCTS DIVISION