U.S.M. Corp.

National Labor Relations Board - Board Decisions

Apr 2, 1974

209 N.L.R.B. 956 (N.L.R.B. 1974)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bostick Division, U.S.M. Corporation and General
Drivers, Salesmen and Warehousemen's Local
Union No . 984, an affiliate of the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America. Case
26-CA-4866
April 2, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on September 24, 1973, by
General Drivers, Salesmen and Warehousemen's
Local Union No. 984, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein called the Union,
and duly served on Bostick Division, U.S.M. Corpo-
ration, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 26, issued a
complaint on October 10, 1973, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 19, 1973,
following a Board election in Case 26-RC-4247 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 May 10, 1972, and at all times
thereafter, 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 October 18, 1973, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On October 31, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment. Subsequently, on November 6,
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 granted. Respondent there-
after 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
National Labor Relations Board has delegated its
authority 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 , the Respondent contends that
the Union has not been properly certified as the
employees ' exclusive collective-bargaining represent-
ative because it created an atmosphere of fear and
coercion which rendered impossible a free choice in
the election in Case 26-RC-4247. In support of its
contention, the Respondent relies upon and adopts
Chairman Miller's dissent in the Board 's Decision on
Review and Certification of Representative in the
underlying representation proceeding . The General
Counsel , on the other hand, argues , in effect , that the
Respondent is attempting to relitigate issues that
were raised and decided against it in the representa-
tion proceeding and this it may not do herein. We
find merit in the General Counsel 's position.
Our review of the record herein , including the
record in Case 26-RC-4247 , reflects that in the
election conducted on August 3, 1972, pursuant to
the Regional Director 's Decision and Direction of
Election , the Union received a majority of the votes
cast. Thereafter, the Respondent timely filed eight
objections to conduct affecting the results of the
election alleging, in substance : ( 1) the Union made
financial inducements to employees to vote for it; (2)
the Union threatened physical harm to employees;
(3) the Union made misrepresentations to employees
which the Respondent was unable effectively to
correct ; (4) the Union threatened employees ' families
with bodily harm and employees ' property with
violent destruction , if they did not vote for it; (5) the
Union created an atmosphere of fear and coercion,
thereby interfering with the holding of a fair election;
(6) the Union interfered with the election by
indicating that employees could receive wage in-
creases and benefits only through the Union's
negotiations ; (7) the secrecy of the election was
destroyed because numerous cast ballots fell to the
floor so that their designations were observed; (8) by
the aforesaid conduct , the Union destroyed the
laboratory conditions for conducting a free and fair
I
Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151 . enfd 415 F.2d 26 (C.A 5, 1969);
Case 26-RC-4247, as the term "record " is defined in Secs. 102.68 and Intertype Co v Penello, 269 F Supp 573 (D C Va., 1967); Follett Corp., 164
102.69( f) of the Board's Rules and Regulations , Series 8, as amended See NLRB 378, enfd . 397 F 2d 91 (C.A . 7, 1968): Sec. 9(d) of the NLRA.
LTV Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C A. 4, 1968),
209 NLRB No. 133
BOSTICK DIVISION
election. After investigation, the Regional Director
issued, on September 20, 1972, his Supplemental
Decision and Certification of Representative overrul-
ing the objections in their entirety and certifying the
Union.
The Respondent then filed with the Board a timely
request for review of the Regional Director's Supple-
mental Decision. On November 2, 1972, the Board
granted the request insofar as it related to the issue of
whether the threats of physical harm and threats and
acts of property damage to antiunion employees
alleged in Objections 2, 4, 5, and 8 in fact occurred
and, if so, whether they destroyed the atmosphere
requisite for the expression of a free choice in the
election. In all other respects, the request was denied.
Accordingly, the proceeding was remanded to the
Regional Director for hearing.
Pursuant to the Board's Order, a hearing was held
before a Hearing Officer who, on March 19, 1973,
issued his Report and Recommendation on Objec-
tions to Election in which he recommended that
Objections 2, 4, 5, and 8 be dismissed in their entirety
as they did not raise material or substantial issues
affecting the results of the election.
The Respondent filed timely exceptions to the
Hearing Officer's report. After considering the entire
record in the case, the Board panel, with Chairman
Miller dissenting, issued, on July 19, 1973, a Decision
on Review and Certification of Representative in
which it overruled the objections in their entirety and
certified the Union.
In the instant proceeding, it thus appears that the
Respondent is seeking to relitigate matters which
were previously raised and determined adversely to
the Respondent by the Board in the underlying
representation proceeding.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances 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.2
All issues raised by the Respondent in this
proceeding 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. We shall, accordingly,
grant the Motion for Summary Judgment.
957
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation doing business in the
State of Tennessee with its office and place of
business in Kenton, Tennessee, where it is engaged in
the manufacture and distribution of sealing material
and shoe soles. During the past 12 months, the
Respondent purchased and received at its Kenton,
Tennessee, location products valued in excess of
$50,000 directly from points outside the State of
Tennessee, and, during that same period, it sold and
shipped from its Kenton, Tennessee, location prod-
ucts valued in excess of $50,000 directly to points
located outside the State of Tennessee.
We find, on the basis of the foregoing, that
Respondent 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 effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers , Salesmen and Warehousemen's
Local Union No. 984, an affiliate of the International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees
employed by the Respondent at its Kenton,
Tennessee, plant, excluding all office and clerical
employees, casual employees, professional em-
ployees, watchmen, guards, and supervisors as
defined in the Act.
2. 1The certification
On August 3, 1972, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
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).
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 26, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on July 19, 1973, 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 May 8, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about May 10, 1972, and continuing
at all times thereafter to date, more specifically since
its certification on July 19, 1973, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since May 10, 1972, and at all times thereafter, more
specifically since its certification on July 19, 1973,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in 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 opera-
tions described in section 1, 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 com-
merce.
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, 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
appropriate unit will be accorded the services of their
selected 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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd . 328 F.2d 600 (C.A. 5),
cert . denied 379 V.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. Bostick Division, U.S.M. Corporation, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. General Drivers. Salesmen and Warehouse-
men's Local Union No. 984, an affiliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees
employed by the Respondent at its Kenton, Tennes-
see, plant, excluding all office and clerical employees,
casual employees, professional employees, watch-
men, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since July 19, 1973, the above-named labor
organization has been and now is the certified and
exclusive 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 May 10, 1972, and at
all times thereafter, more specifically since July 19,
1973, 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 the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
BOSTICK DIVISION
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,
Bostick Division, U.S.M. Corporation, Kenton,
Tennessee, 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 General Drivers,
Salesmen and Warehousemen's Local Union No.
984, an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees
employed by the Respondent at its Kenton,
Tennessee, plant, excluding all office and clerical
employees, casual employees, professional em-
ployees, watchmen, guards, and supervisors 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 Kenton, Tennessee, plant copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional
Director for Region 26, 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 thereaft-
er, in conspicuous places, including all places where
notices 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 26, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN MILLER, dissenting:
In the Decision on Review and Certification of
959
Representative. I would have found, contrary to my
colleagues, that the incidents of damage to company
and antiunion employees' property, plus a variety of
threats, sufficiently tainted the atmosphere of the
campaign as to make it doubtful that employees truly
cast their ballots free of unlawful intimidating
pressures and therefore would have rerun the
election. In these circumstances, I would not find
that the Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to bargain with the Union,
and, accordingly, would deny the General Counsel's
Motion for Summary Judgment.
s 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Gener-
al Drivers, Salesmen and Warehousemen's Local
Union No. 984, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclusive
representative of the employees 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 representa-
tive 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 understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees employed by the Employer at its Kenton,
Tennessee, plant, excluding all office and
clerical employees, casual employees, profes-
sional employees, watchmen, guards, and
supervisors as defined in the Act.
BOSTICK DIVISION,
U.S.M. CORPORATION
(Employer)
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By days from the date of posting and must not be
(Representative) (Title) altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
This is an official notice and must not be defaced Board's Office , Clifford Davis Federal Building,
by anyone. Room 746, 167 North Main Street, Memphis,
This notice must remain posted for 60 consecutive Tennessee 38103 , Telephone 901-534-3161.