Waycross Molded Products, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 727 (N.L.R.B. 1980)

WAYCROSS O()LDED PROI)ULCTS. INC 727
Waycross Molded Products, Inc. and United
Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO. Case 10-CA-15737
August 27, 1980
DECISION AND ORDER
BY MiEMBI.RS JNKINS, PENELIO, ANI)
TRUESI)AI. F
Upon a charge filed on April 18, 1980, by United
Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, herein called the Union, and
duly served on Waycross Molded Products, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 10, issued a complaint
and notice of hearing on May 6, 1980, against Re-
spondent, 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 and 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
complaint alleges in substance that on March 13,
1980, following a Board election in Case 10-RC-
11877, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about January
24, 1980, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On May 14,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On June 20, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 24, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
I Official notice is taken of the record in the representalionl proceed-
ing. Case 0 RC 11877. as the term "record" is defined in Secs 102 68
and 102.6
9
(g} of the Board's Rules and Regulations, Series 8, as amended
See LTV Elecrrosystem. Inc.. 166 NL.RH 938 (1967). end 388 F.2d 683
(4th Cir 1968). Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415
F.2d 26 (5th Cir 1969); Intertevpe Co, s Pencel, 269 FSupp 573
(DCVa 1967); Follett Corp.. 164 NLRB 3.78 (1967). enfd 3'17 F 2d 91
(7th Cir. 1968): Sec. 9(d) of the NLRA. as amended
251 NLRB No. 93
thereafter filed a response to the Notice To Show
Cause. 2
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, in substance, attacks the
validity of the Union's certification on the basis of
its objections to the election in the underlying rep-
resentation proceeding. The General Counsel
argues that all material issues have previously been
decided. We agree with the General Counsel.
A review of the record herein, including the
record in Case 10-RC-11877, discloses that on Oc-
tober 18, 1979, pursuant to a Stipulation for Certifi-
cation Upon Consent Election, an election was
held among the employees in the stipulated unit.
The tally of ballots showed that, of approximately
233 eligible voters, 180 cast valid ballots in favor
of, and 13 against, the Union; there were two chal-
lenged ballots, an insufficient number to affect the
results. Respondent filed timely objections to the
election. Following an investigation, the Regional
Director issued a report on December 3, 1979,
which recommended overruling the objections, and
issuing a certification of representative. Thereafter,
Respondent filed exceptions to the Regional Direc-
tor's recommendations. On March 13, 1980, the
Board adopted the Regional Director's recommen-
dations, and certified the Union as the exclusive
bargaining representative of the employees in the
stipulated unit.3
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances, a respondent in a proceeding al-
leging 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.4
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
i In its response to the General Counsel's motion. Respondent moves
for summary judgment in its favor In the alternatlie. Respondent moves
that the case be remanded for an evidentiary hearing on its objections
Respondent's motion is hereby denied, inasmuch as, for reasons stated
below, we shall grant the General Counsel's Motion for Summary Judg
ment
' The Board initiall. certified the Union on January 14, 1980, because
it appeared that no exceptions t he Regional Director's report had been
filed within the time provided by the Board's Rule, and Regulatlio,r
Ho, ever, on January 23. 1980, the Board resoked the certification after
it was discovered that exceptions to the report had been timely filed in
the Regional Office, and had been mailed to the Board and to the Union
4 See Pittsburgh Plate Glas¥ Co .V.R.R.., 313 U.S 146, 162 (1941);
Rules and Regulations of the Board. Secs 102 67(f) and 102.6
9
(c)
728 DIECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation proceeding, and 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
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
General Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Waycross Molded Products, Inc., an Ohio cor-
poration, has a place of business in Waycross,
Georgia, where it is engaged in the manufacture of
floormats. Respondent, in the course and conduct
of its business operations during the past calendar
year, a representative period, sold and shipped fin-
ished products valued in excess of $50,000 directly
to customers located outside the State of Georgia.
We find, on the basis of the foregoing, that Re-
spondent 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
United Rubber, Cork, Linoleum & Plastic Work-
ers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
111I. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by Respondent at its Waycross,
Georgia, facility, but excluding all office cleri-
cal employees, professional employees, techni-
cal employees, guards and supervisors as de-
fined in the Act.
2. The certification
On October 18, 1979, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 10, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on March 13,1980, 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 Respondents
Refusal
Commencing on or about January 24, 1980, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about March 26,1980, and continu-
ing at all times thereafter to date, 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 Respondent has, since
March 26, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
WAYCROSS MOLDED PRODUCTS. INC. 721
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir.), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCILUSIONS OF LAW
1. Waycross Molded Products, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees
employed by Respondent at its Waycross, Georgia,
facility, but excluding all office clerical employees,
professional employees, technical 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 March 13, 1980, 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 March 26, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) 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
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Waycross Molded Products, Inc., Waycross, Geor-
gia, 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 & Plastic Workers of America.
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All production and maintenance employees
employed by Respondent at its Waycross,
Georgia, facility, but excluding all office cleri-
cal employees, professional employees. techni-
cal employees, guards and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Waycross, Georgia, facility copies
of the attached notice marked "Appendix. " s
Copies of said notice, on forms provided by the
Regional Director for Region 10, 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 by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
I the ccrnt Ihatl thi, ()rder i enfo rced h, J dglici of ., tI nlted
Slates Court of Appeas. the Nkord, in the nollce reading I"P-ied h.
()rder of he Naitllnal I habor Rl.otio , lloail d ,h.dl read " Potcd I'Lirtl
Jnl to .a Judglelln oI the Lliled .State, (ort l , Aptpak ftoriir iiil
Order of he Natiornal I hor Relatiln loaird
730 DECISIONS OF NATIONAL l.ABOR REL.ATIONS BO()AR)
Order, what steps have been taken to comply here-
with.
APPENDIX
NOrict: To EMPLOYEES
POSTED) BY ORDER OF: HE
NATIONAI. LABOR REI ATIONS BOARD
An Agency of the United States Government
WE WILL NOI' refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO, as the exclu-
sive representative of the employees in the
bargaining unit described below.
WL WIll. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE wit.l., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees,
employed by us at our Waycross, Georgia,
facility, but excluding all office clerical em-
ployees, professional employees, technical
employees, guards and supervisors as de-
fined in the Act.
WAYCROSS MOI) DlD PROI)UCIS, INC.