Union Carbide Caribe

National Labor Relations Board - Board Decisions

Nov 20, 1968

173 N.L.R.B. 931 (N.L.R.B. 1968)

UNION CARBIDE CARIBE 931
Union Carbide Caribe, Inc. and Union Independiente
de Trabajadores de Produccion y Mantenimiento.
Case 24-CA-2561
November 20, 1968
DECISION AND ORDER
By MEMBERS BROWN , JENKINS, AND
ZAGO R IA
Upon a charge filed by Union Independiente de
Trabajadores de Produccion y Mantenimiento, herein-
after called the Union, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 24, issued a Complaint dated July
12, 1968, alleging that Union Carbide Caribe, Inc.,
hereinafter called Respondent, had engaged in and
was engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and notice
of hearing before a Trial Examiner were duly served
on Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
February 20, 1968, pursuant to an election won by
the Union, it was duly certified by the Board' as the
exclusive bargaining representative of Respondent's
employees in the unit stipulated by the parties and
found to be appropriate, that on March 15, 1968,
Respondent notified its employees and the Regional
Director for Region 24 that it did not recognize the
validity of either the election or the certification and
would refuse to recognize or bargain with the Union
until the validity of these matters was confirmed by
the Courts, that since on or about March 18, 1968,
the Union has requested, and is requesting Respond-
ent to bargain collectively with respect to said unit,
that since on or about March 26, 1968, Respondent
has refused and is refusing to recognize or bargain
with the Union as such exclusive bargaining represent-
ative, and that on or about April 23, 1968, Respond-
ent notified the unit employees of an impending
increase in wages and other benefits which
Respondent unilaterally effectuated on this same
day.2 On July 31, 1968, Respondent filed its answer
denying the commission of the unfair labor practices
alleged, although admitting that the Union obtained a
majority of the votes cast in the Board-conducted
election held on May 3 and 4, 1967, and was
thereafter certified. Respondent also admits that it
has refused to bargain since March 15, 1968, although
repeatedly requested to do so thereafter, and that it
1 Decision and Certification of Representative in Case 24 -RC-3119.
2 In its answer , Respondent avers the date of unilateral effectuation
to be April 29, 1968.
unilaterally effectuated increases in wages and other
benefits on or about April 29, 1968, pursuant to its
April 23, 1968 notification to its employees of its
intent to do so. As affirmative defenses, Respondent
avers that on April 23, 1968, it also notified the
Union as well as its employees of its intent to increase
wages and other benefits on April 29, 1968, and that
"the Union made no comment on or objection to the
Respondent's announcement nor directed any com-
munication or request to negotiate to Respondent
between the date of the announcement, April 23,
1968, and the date of effect of April 29, 1968."
On July 31, 1968, the General Counsel filed with
the National Labor Relations Board in Washington,
D.C., a Motion for Judgment on the Pleadings
asserting, in effect, that in view of admissions
contained in Respondent's answer, there are no issues
of fact or law requiring a hearing or a Trial Exam-
iner's Decision and Recommendation, and praying the
issuance of a Decision and Order finding the viola-
tions as alleged in the complaint and requiring
Respondent to grant immediate recognition and
bargaining rights to the Union. The General Counsel
prays further that the Board's Order require Respon-
dent to cease and desist from unilaterally announcing
and effectuating changes in wages, hours, working
conditions, and benefits. On or about this same date,
the Regional Director referred the Motion to the
Board. On August 2, 1968, the Board issued an Order
Transferring Proceeding to the Board and Notice to
Show- Cause on or before August 16, 1968, why the
General Counsel's Motion for Judgment on the
Pleadings should not be granted. On August 15, 1968,
Respondent filed a Reply to Board Order to Show
Cause and Amendment to Respondent's Answer.
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.
Upon the entire record in this case, the Board
makes the following-
RULING ON THE MOTION FOR
JUDGMENT ON THE PLEADINGS
The record establishes that pursuant to a Stipula-
tion for Certification upon Consent Election executed
by the parties on April 4, 1967, an election was
conducted on May 3 and 4, 1967, among the
employees in a unit stipulated by the parties to be
appropriate and consisting of:
All hourly paid production and maintenance em-
ployees employed by the Employer at its plant in
Barrio Tallaboa, Puerto Rico, but excluding all
salaried clerical employees, professional employees,
guards, and supervisors as defined in the Act.
173 NLRB No. 131
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union received a majority of the valid votes cast.
Thereafter, Respondent filed timely objections to
conduct affecting the results of the election, and the
Union filed objections to Respondent's objections.
On June 6, 1967, the Regional Director overruled the
objections and recommended that a certification of
representative be issued. On June 16, 1967, Respon-
dent filed exceptions to the Regional Director's
findings and recommendations, requesting, inter alia,
a hearing on the issues raised by its objections and
exceptions. On August 1, 1967, the Board directed
that a hearing be held before a Trial Examiner with
regard to the issues raised. On November 16, 1967,3
the Trial Examiner issued his Report on Objections
and Recommendations in which he recommended
that Respondent's objections be overruled in their
entirety and that the Union be certified as exclusive
representative of Respondent's employees in the
stipulated appropriate unit. Thereafter, Respondent
filed exceptions and a supporting brief to the Trial
Examiner's Report. On February 20, 1968, the Board
adopted the Trial Examiner's Report and issued a
certificate of representative. On March 15, 1968,
Respondent notified both its employees and the
Regional Director for Region 24 that it did not
recognize the validity of the election or the issued
certification, that it intended to test the validity of
these matters in the Courts, and that it would not
recognize or bargain with the Union until the Courts
confirmed the validity of these matters. On March 18,
1968, and thereafter, the Union requested Respon-
dent to meet with it for the purpose of negotiating a
collective-bargaining agreement. On March 26, 1968,
Respondent refused this and all subsequent requests.
On April 1, 1968, Respondent filed a motion for
reconsideration of, and requested oral argument on,
the Board's February 20, 1968, Decision and Order,
which matters were denied by the Board on June 12,
1968. Meanwhile, on April 23, 1968, Respondent
notified its employees of an impending increase in
wages and other benefits which Respondent there-
after unilaterally effectuated. Subsequently, on June
14, 1968, the Union again requested and, on June 20,
1968, Respondent again refused to bargain until the
Courts passed on the validity of the Union's certifi-
cation.
As indicated, Respondent's answer admits the
March 15, 1968, announced refusal to bargain and the
subsequent requests and refusals to bargain with the
duly certified Union and that, on April 23, 1968, it
notified its employees of its intent to effectuate an
increase in wages and other benefits. By way of
affirmative defense, Respondent avers that it also
notified the Union of this intent on April 23, 1968,
3 The complaint in the instant case inadvertently alleges the date of
issuance of the Trial Examiner 's Report to be November 6, 1967
that the increases were effectuated on April 29 and
not April 23, 1968, as alleged, and that in the interval
between the unilateral actions of notification and
effectuation, the Union neither made any comment
on or objection to Respondent's actions "nor directed
any communication or request to negotiate to Re-
spondent." In its response to the Notice to Show
Cause, Respondent contends in substance and effect
that a Trial Examiner is the proper party to rule upon
a motion for judgment on the pleadmgs and that the
Board itself is without authority to do so, citing
Martin Building Material Co, Inc, 172 NLRB No.
156, in support of this position. Respondent further
argues that neither the National Labor Relations Act
nor the Board's Rules and Regulations make any
provision for the instant motion and that Respondent
is entitled to a hearing before a Trial Examiner in
order to litigate the issues raised by its affirmative
defense as well as the issue raised in its response to
the show-cause order wherein it sets forth a newly
proposed amendment to its answer to the effect that
a petition filed by the Union on August 2, 1968, in
Case 24-AC-22 and seeking an amendment of
certification raises "doubt and confusion ... as to the
identity of the Union, or if any Union is in existence
with which Respondent could engage in collective-
bargaining." We find no merit in any of these
contentions.
Inasmuch as Respondent concedes its refusals to
recognize and bargain with a certified Union, the
violation is thus established. Its refusal to bargain is in
no way tempered by its affirmative defense which is
ambiguous at best, which seeks to place an onus on
the Union for unlawful acts committed by Respon-
dent, and which neither explicates nor excuses either
its admitted refusals to bargain both before and after
Respondent's unilaterial actions, or the unlawfulness
of those unilateral actions. At most, this defense seeks
only to justify the original unlawful conduct on the
ground that the Union neither protested nor re-
quested bargaining with regard to Respondent's fur-
ther unlawful conduct wherein it announced and then
unilaterally increased wages and other benefits. It fails
to present any newly discovered or previously unavail-
able evidence or special circumstances requiring a
hearing on any issues in Case 24-RC-3119 or in the
instant case.
Nor is Respondent's liability overcome by its
response to the Order to Show Cause which does not
deny the pertinent allegations of the complaint but
seeks merely to avoid the consequences of its unlaw-
ful conduct on procedural and subsequently-raised
inconsequential substantive grounds. Thus, pro-
cedurally, Respondent contends that neither the
National Labor Relations Act, as amended, nor the
Board's Rules and Regulations make any provisions
for a Motion for Judgment on the Pleadings. This
contention, however, has been consistently rejected
UNION CARBIDE CARIBE
by the Board as lackmg in merit.' Respondent further
argues, in effect, that the Act and the Board's
Regulations guarantee it an absolute right to a hearing
before a Trial Examiner and that, in any event, the
motion should have been addressed to the Regional
Director instead of to the Board and ruled upon by a
Trial Examiner. These arguments likewise are without
merit. The Board has consistently held that where no
litigable issues have been properly raised, it may
entertain and rule upon Motions for Summary Judg-
ment or Judgment on the Pleadings. Moreover, the
Board has exercised these powers in numerous cases.'
It follows, therefore, that because the Board has
approved the granting of like motions before a Trial
Examiner in cases similar to this, a fortiori, it may
itself entertain and rule upon such a motion.' The
Martin case on which Respondent relies merely
confirms these principles.
Substantively, Respondent argues that it could not
bargain with the Union because the amendment of
certification petitions filed by the Union in August
1968, created "doubt and confusion at this time" as
to the identity and even the existence of the Union.
(Emphasis supplied.) Inasmuch as Respondent is
charged with an initial failure to bargain with the
Union commencing on March 15, 1968, we fail to
perceive how the petitions filed some 5 months later
can exculpate it from that earlier established viola-
tion. Any questions which may arise in the future as a
result of the newly-filed petition in Case 24-AC-24
can be resolved at the Compliance stage of this
proceeding.' Therefore, since there is nothing that a
trier of fact may determine, and because neither the
Board nor the Courts are bound to "hear" that which
is legally insignificant,' it would be an exercise in
futility to conduct a hearing in these circumstances.
Accordingly, there are no issues which require a
hearing.
Thus, all material issues having been decided by the
Board or admitted in the answer to the complaint,
there are no matters requiring a hearing before a Trial
Examiner and the General Counsel's Motion for
Judgment on the Pleadings is granted. On the basis of
the record before it, the Board makes the following:
4 Liquid Carbonic Corporation , 116 NLRB 795; The Puritan
Sportswear Corp., 162 NLRB No . 4, enfd. 385 F.2d 142 (C.A. 3), Union
Brothers, Inc, 162 NLRB No. 140, Reno 's Riverside Hotel, Inc, dlb/a
Riverside Hotel, 163 NLRB No . 37, Metropolitan Life Insurance
Company, 163 NLRB No. 71 , Harry T. Campbell Sons' Corporation,
164 NLRB No . 36, Clement-Blythe Companies, 169 NLRB No. 122.
See also Harvey Aluminum Inc. v N.L R.B., 335 F.2d 749 (C A. 9).
5 Chelsea Clock Company, 170 NLRB No 21 , Montgomery Ward &
Co., Incorporated 165 NLRB No 78, The Puritan Sportswear Corp.,
supra, E-Z Davis Chevrolet , 161 NLRB 1380 ; Collins & Aikman Corp.,
160 NLRB 1750
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
933
Respondent, a Puerto Rico corporation, is engaged
in the manufacture of synthetic chemical products on
the island of Puerto Rico. During the calendar year of
1967, Respondent purchased materials and equip-
ment valued in excess of $50,000 which were shipped
directly to its place of business in Puerto Rico from
suppliers located outside of Puerto Rico. During the
same period, Respondent sold and shipped products
valued in excess of $50,000 directly from its place of
business in Puerto Rico to points located outside
Puerto Rico. Respondent admits, and we find, that at
all times material herein, it is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
II THE LABOR ORGANIZATION INVOLVED
Respondent admits, and we find , that Union
Independiente de Trabajadores de Produccion y Man-
tenimiento 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 Respondent consti-
tute, and at all times material have constituted, a unit
appropriate for collective bargaining within the mean-
ing of Section 9(b) of the Act:
All hourly paid production and maintenance em-
ployees employed by the Employer at its plant in
Barrio Tallaboa, Puerto Rico, but excluding all
salaried clerical employees, professional employees,
guards, and supervisors as defined in the Act.
B. The Certification
On or about May 3 and 4, 1967, a majority of
employees of Respondent voted in a secret election
6 Continental Nut Company, 164 NLRB No. 72, E-Z Davis
Chevrolet, supra , Collins & Aikman Corp, supra
7 In view of our finding herein, we deny Respondent 's motion to
amend its answer to allege doubt and confusion as to the identity of the
Union with whom Respondent could bargain.
8 N.L.R.B v. Douglas County Electric Membership Corporation,
358 F 2d 125, 129 (C.A. 5), citing with approval N L.R B v Air
Control Products, Inc, 335 F 2d 245, 249 (C.A. 5).
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted among the employees in said unit, under
the supervision of the Regional Director for Region
24, and designated the Union as their representative
for the purposes of collective bargaining with Respon-
dent. On February 20, 1968, the Board certified the
Union as the collective-bargaining representative of
the employees in said unit, and the Union continues
to be such representative.
C. The Requests to Bargain and Respondent's
Refusals and Other Unfair Labor Practices
On or about March 15, 1968, Respondent notified
its employees and the Regional Director for Region
24 that it contested the validity of both the election
and the ensuing certification, and that it would not
recognize or bargain with the Union until the validity
of those matters was confirmed by the Courts.
Thereafter, commencing on March 18, 1968, and
continuing to date, the Union has requested, and is
requesting, Respondent to bargain collectively with it
as the exclusive collective-bargaining representative of
all the employees in the above-described unit. Since
on or about March 15, 1968, and continuing to date,
Respondent did refuse, and continues to refuse, to
bargain collectively with the Union as the exclusive
collective-bargaining representative of the employees
in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of Respondent in the
appropriate unit described above in the Board's
certification, and that the Union at all times since
February 20, 1968, has been and now is the exlcusive
bargaining representative of all the employees in the
aforesaid unit, within the meaning of Section 9(a) of
the Act. We further find that Respondent has refused
to bargain collectively with the Union since March 15,
1968, as the exclusive bargaining representative of its
employees in the appropriate unit, and that, by such
refusal, 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 also find that
by unilaterally announcing and thereafter effectuating
increases in the wages and other benefits of the unit
employees, Respondent has engaged 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 acts of Respondent set forth in Section III
above, occurring in connection with its operations as
described in Section I, above, have a close, intimate,
and substantial relation 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.
THE REMEDY
Having found that Respondent has engaged 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 represen-
tative of all employees in the appropriate unit and, if
an understanding is reached , embody such under-
standing in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial year of certification
as beginning on the date the Respondent commences
to bargain in good faith with the Union as the
recognized bargaining representative in the appro-
priate unit . See Mar-Jac Poultry Company , Inc., 136
NLRB 785; Commerce 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).
CONCLUSIONS OF LAW
1. Union Carbide Canbe, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Union Independiente de Trabajadores de Pro-
duccion y Mantenimiento is a labor organization
within the meaning of Section 2(5) of the Act.
3. All hourly paid production and maintenance
employees employed by Respondent at its plant in
Barrio Tallaboa, Puerto Rico, but excluding all
salaried clerical employees, professional employees,
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 February 20, 1968, the above-named
labor organization has been the exclusive represen-
tative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on March 15, 1968, 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, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By unilaterally announcing and thereafter
effectuating changes in wages, hours, and other terms
and conditions of employment, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
7. By the aforesaid refusal to bargain and the
unilateral actions taken with respect to wages, hours,
UNION CARBIDE CARIBE
and other terms and conditions of employment,
Respondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and coer-
cing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. 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
Relations Board hereby orders that Respondent,
Union Carbide Caribe, Inc., Barrio Tallaboa, Puerto
Rico, its officers, agents, successors, and assigns, shall:
1. Cease and desist from.
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with Union Independiente de Traba-
jadores de Produccion y Maintenimiento as the
exclusive bargaining representative of its employees at
its Barrio Tallaboa, Puerto Rico, operation, in the
following appropriate unit.
All hourly paid production and maintenance em-
ployees employed by Respondent at its plant in
Barrio Tallaboa, Puerto Rico, but excluding all
salaried clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(b) Announcing and effectuating any changes in
wages, hours and other terms and conditions of
employment without previously having negotiated
such changes with the above-described Union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by 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 wages, hours, and other terms and con-
ditions of employment, and if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Post at its Barrio Tallaboa, Puerto Rico, place
of business, copies of the attached notice marked
"Appendix."9 Copies of said notice, on forms pro-
vided by the Regional Director for Region 24, after
being duly signed by Respondent'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
935
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Regional Director for Region 24, in
writing, within 10 days from this Decision and Order,
what steps Respondent has taken to comply herewith.
9 In the event that this Order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "a
Decision and Order ," the words "a Decree of the United States Court of
Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Union Independiente de Trabajadores de
Produccion y Mantenimiento as the exclusive bar-
gaining representative of the employees in the
following appropriate unit,
All hourly paid production and maintenance
employees employed by the Employer at its
plant in Barrio Tallaboa, Puerto Rico, but
excluding all salaried clerical employees, pro-
fessional employees, guards, and supervisors as
defined in the Act.
WE WILL NOT announce or place into effect any
changes in wages, hours, and other terms and
conditions of employment unless we first negotiate
with the above-described Union with respect to
such changes.
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 representative of all
employees in the above-described bargaining unit
with respect to wages, hours, and other terms and
conditions of employement, and if an under-
standing is reached, embody such understanding in
a signed agreement.
UNION CARBIDE
CARIBE, INC.
(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, 255 Ponce de Leon Ave., Hato Rey, Puerto
Rico 00919, Telephone 765-1125.