Rexall Drug and Chemical Co.

National Labor Relations Board - Board Decisions

Nov 15, 1965

155 N.L.R.B. 808 (N.L.R.B. 1965)

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the said Employer to accept or select us or any other labor orga-
nization as their collective-bargaining representative , in circumstances violative
of Section 8(b) (7) (C) of the Act.
CENTRALIA BUILDING & CONSTRUCTION TRADES COUNCIL,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 327 Logan
Building, 500 Union Street , Seattle, Washington , Telephone No. 682-4553.
Rexall Chemical Company, a division of Rexall Drug and Chemi-
cal Company and International Union of Electrical , Radio and
Machine Workers , AFL-CIO. Case No..1-CA-500... Novem-
ber 15, 1965
DECISION AND ORDER
On September 21, 1.965, Trial Examiner Thomas N. Kessel issued
his Decision on Motion for Judgment on the Pleadings in the above-
entitled proceeding, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Eiamiiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has considered the Trial Examiner's Decision, the
Respondent's exceptions and brief, and the entire recor. d in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.']
i The telephone number for Region 1, appearing at the bottom of the Appendix attached
to the Trial Examiner ' s Decision, Is amended to read : Telephone No. 223-3358.
TRIAL EXAMINER'S DECISION ON MOTION
FOR JUDGMENT ON THE PLEADINGS
STATEMENT OF THE CASE
Upon a charge filed May 13, 1965, by International Union of Electrical, Radio
and Machine Workers, AFL-CIO, herein called the Union, against Rexall Chemical
155 NLRB No. 83.
REXALL CHEMICAL COMPANY, ETC. 809
Company, a division of Rexall Drug and Chemical Company,' herein called the
Respondent, the General Counsel of the National Labor Relations Board, by the
Regional Director for Region 1, issued a complaint dated June 25, 1965, alleging the
Respondent's refusal to bargain with the Union in violation of Section 8(a)(5) and
(1) of the Act. The complaint alleges the Union's certification following a secret
ballot election conducted by the Regional Director as the exclusive collective-
bargaining representative of an appropriate unit of the Respondent's production and
maintenance employees, the Union's subsequent request to the Respondent for col-
lective bargaining in behalf of these employees, and the Respondent's consequent
unlawful refusal. The Respondent's answer admits all the complaint allegations
except those pertaining to the Union's designation as majority representative of the
employees in the appropriate unit following the secret-ballot election, and violation
of the Act by the Respondent's admitted refusal to comply with the Union's bargaining
request. The General Counsel thereupon filed a motion for judgment on the pleadings
claiming that the Respondent's answer raised no triable issue requiring a hearing and
that the answer, in effect, constituted an admission of the unfair labor practice allega-
tions of the complaint. That motion was referred to me for ruling.
On August 3, 1965, I caused an order to be served on the Respondent directing it to
show cause why the General Counsel's motion should not be granted. The Respond-
ent was further directed in said order to summarize the evidence, if any, newly
discovered or not available during the representation proceeding which allegedly
resulted in the Union's certification (Case No. 1-RC-8211), and which the Respond-
ent would proffer at a hearing to attack the validity of the Union's certificate.
Responding thereto, the Respondent noted certain circumstances pertaining to the
conduct of the aforementioned secret-ballot election which assertedly impaired its
validity and the Union's resultant certification, but conceded that it has no evidence
newly discovered or previously unavailable which it would proffer at a hearing in this
case. The Respondent expressly declared that its defense to this proceeding consists
of an attack upon "the conclusions of law" reached in the representation proceeding
in Case No. 1-RC-8211.
Although the Respondent's answer denies the complaint allegation that a majority
of the employees in the appropriate unit selected the Union in a March 3, 1965, secret-
ballot election as their collective-bargaining representative, there is admission in the
Respondent's response to the order to show cause that such election was held.
Furthermore, the Board's records in Case No. I-RC-8211 show that in fact there was
an election conducted on March 3, 1965, in which the Respondent's employees in an
appropriate unit of its production and maintenance employees at its Holyoke, Massa-
chusetts, plant, selected the Union as their representative. The tally of ballots in
that proceeding shows that of 31 eligible voters, 25 cast ballots for the Union and
4 against. I take official notice of these proceedings and find that in fact the Union
was designated by a majority of the Respondent's production and maintenance
employees as their exclusive collective-bargaining representative in the March 3.
1965, election. The Board's records further show that the Union's certification fol-
lowed its designation by the unit employees in that election. It is, accordingly, clear
that the Respondent's only defense involves an attack upon the validity of the
Union's certificate. Such defense is permissible in an unfair labor practice proceeding
only if based upon newly discovered evidence or evidence not available during the
representation proceeding Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S.
146 In view of the Respondent's concession that it does not have such evidence,
I find that no triable issue is raised by the Respondent's answer requiring a hearing
for the taking of evidence. As it is also clear from the Respondent's answer and its
response to the order to show cause that its only defense to its refusal to honor the
Union's certificate and to bargain with it pursuant to its request therefor is its attack
upon the validity of the certificate, I further find that the Respondent seeks merely to
litigate issues already decided by the Board in the representation proceeding and
which may not be relitigated in this case.2 The circumstances noted in the Respond-
ent's response upon which it relies to attack the validity of the Union's certificate are
identical with those which constituted the objections filed by the Respondent with the
Regional Director to the May 3, 1965. election These objections were that the Union
had improperly offered waiver of initiation fees to induce employees to become its
members, that threats and pressure were exerted to suppress employee opinion adverse
'The Respondent's motion to correct the pleadings to show its correct name, as stated
herein , is granted.
2 Pepsi-Cola Bottlers of Miami, Inc., 153 NLRB 1342
,810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Union , and that meetings by the Union 's agents and other persons were held in
places too proximate to the polling places and at times which resulted in interference
with the election . On April 9, 1965 , the Regional Director issued his report following
investigation of the foregoing objections and found them to be without merit. He
recommended their dismissal No exceptions were filed by the Respondent to this
report . On April 27, 1965 , the Board adopted the Regional Director 's report and
dismissed the Respondent 's objections At the same time the Board issued to the
Union its exclusive bargaining certificate . Accordingly , I grant the General Counsel's
motion for judgment on the pleadings.
From the record before me I make the following:
FINDINGS OF FACT
1. COMMERCE FACTS
The Respondent is a Delaware corporation which operates a plant in Holyoke,
Massachusetts , for the manufacture , sale, and distribution of plastic products. In the
course of its business operations the Respondent ships from its Holyoke plant to
points outside the State products valued in excess of $50,000 per apnum. I find that
the Respondent is engaged in interstate ' commerce within the Act's meaning and that
the purposes of the Act will be effectuated by the assertion of jurisdiction over its
operations in this case.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership the Respondent's
employees.
III. THE UNFAIR LABOR PRACTICES
On March 3 , 1965, the Union was selected by a majority of the Respondent's
employees in the appropriate unit described below as their exclusive bargaining
representative in a secret ballot election conducted by the Regional Director.
On April 27 , 1965, the Union was certified by the Board as the exclusive bargain-
ing representative of the employees in the appropriate unit.
On or about May 3 , 1965, and continuously thereafter the Union requested the
Respondent to bargain with it collectively concerning rates of pay, wages , hours of
employment , or other conditions of employment in behalf of the employees in the
appropriate unit.
On or about May 5, 1965 , and at all times thereafter , the Respondent refused and
continues to refuse to bargain collectively with the Union in behalf of the foregoing
employees.
The appropriate unit consists of all the Respondent 's production and maintenance
employees , including laboratory technicians and warehousemen , employed at its
Holyoke, Massachusetts, plant, excluding office clerical and plant clerical employees,
color -chemist management trainee, the laboratory part-time helper, guards, profes-
sional employees , and all supervisors as defined in the Act.
By its refusal on or about May 5, 1965 , and thereafter , to bargain collectively
with the Union as the exclusive representative of the employees in the foregoing
appropriate unit the Respondent violated Section 8(a)(5) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices I
will recommend that it be ordered to cease and desist therefrom and taken certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following
CONCLUSIONS OF LAW
1. Rexall Chemical Company , a division of Rexall Drug and Chemical Company,
is an employer within the meaning of Section 2 ( 2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and ( 7) of the Act.
REXALL CHEMICAL COMPANY, ETC. 811
2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. On and since March 3, 1965, the Union was and has been the representative for
the purposes of collective bargaining of a majority of the Respondent's employees in
the appropriate unit hereinabove described. Said unit is appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit on or about May 5, 1965, and thereafter, the
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.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in this proceeding, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the Respondent, Rexall Chemical Company,
a division of Rexall Drug and Chemical Company, Holyoke, Massachusetts, its
officers, agents, successors, and assigns, shall.
1. Cease and desist from refusing to bargain collectively with International Union
of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive collective-
bargaining representative of its employees in the appropriate unit hereinabove
described.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request bargain collectively with International Union of Electrical, Radio
and Machine Workers, AFL-CIO, as the exclusive representative of all the employ-
ees in the appropriate unit hereinabove described with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and, if an undeistanding
is reached, embody such understanding in a signed agreement.
(b) Post at its Holyoke, Massachusetts, plant, copies of the attached notice marked
"Appendix." 3 Copies of said notice, to be furnished by the Regional Director for
Region 1, shall, after being duly signed by an authorized representative of the
Respondent, be posted by it immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 1, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.'
IIn the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for Region 1, in writing, within
10 days from the date of receipt of this Ordei, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL, upon request, bargain with International Union of Electrical, Radio
and Machine Workers, AFL-CIO, as the exclusive collective -bargaining repre-
sentative of the employees in the appropriate unit described below, with
respect to rates of pay, wages , hours of employment , and other conditions of
employment , and, if an understanding is reached , embody such understanding in
a signed agreement.
The appropriate unit is-
All production and maintenance employees at our Holyoke , Massa-
chusetts , plant, including laboratory technicians and warehousemen , exclud-
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing office clerical and plant clerical employees, color-chemist management
trainee, the laboratory part-time helper, guards, professional employees, and
all supervisors as defined in the Act.
REXALL CHEMICAL COMPANY, A DIVISION OF REXALL
DRUG AND CHEMICAL COMPANY,
Employer.
Dated------ ------------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 24
School Street, Boston, Massachusetts, Telephone No. 523-8100.
Astro-Space Laboratories , Inc. and International Union of Elec-
trical , Radio and Machine Workers , AFL-CIO. Case No. 10-
CA-6013. November 15, 1965
DECISION AND ORDER
On August 24, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, Respond-
ent filed exceptions to the Trial Examiner's Decision.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers
in connection with this case to a three-member panel [Chairman
McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts the findings,' conclusions, and recommendations of
the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
i The testimony of Fugate , whom the Trial Examiner credited in cases of conflict with
Stricklin , establishes that Respondent was made aware of Fugate 's union activity on
January 25, 1965 , even if it be assumed that Respondent was not aware of such activity
prior to the discussions between Fugate and Stricklin.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The sole issue in this proceeding, heard before Trial Examiner Frederick U. Reel at
Huntsville, Alabama, on June 15, 1965, pursuant to a charge filed the preceding
March 3 and a complaint issued April 9, is whether Respondent, herein called the
155 NLRB No. 84.