T.L.B. Plastics Corporation

National Labor Relations Board - Board Decisions

Mar 7, 1983

266 N.L.R.B. 331 (N.L.R.B. 1983)

T.L.B. PLASTICS CORPORATION
T.L.B. Plastics Corporation and United Electrical,
Radio and Machine Workers of America (UE).
Case 13-CA-22375
March 7, 1983
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed on July 12, 1982, by United
Electrical, Radio and Machine Workers of Amer-
ica (UE), herein called the Union, and duly served
on T.L.B. Plastics Corporation, herein called Re-
spondent, t the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 13, issued a complaint on August 9,
1982, against Respondent, 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 July 1, 1982,
following a Board election in Case 13-RC-15816,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;d arid that,
commencing on or about July 7, 1982, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On August 17, 1982, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On September 27, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 4,
'While admitting having been served by the Regional Director
through certified mail with a copy of the charge, Respondent contends
that service was defective since the charge was not served by the Charg-
ing Party in accordance with Sec. 102.14 of the Board's Rules and Regu-
lations. That contention is without merit as, under Sec. 11(4) of the Act,
a charge may be served by the Regional Director through certified mail
and such copy need not, under Sec. 10(b) of the Act, be served personal-
ly by the Charging Party. See N.LR.B. v. Ann Arbor Press, 188 F.2d 917
(6th Cir. 1951): Pargamenz Fidler, Inc., 173 NLRB 696, 697 (1968);
Schreiber Manufacturing Co.. Inc., 262 NLRB 1196, 1204, fn. 21 (1982).
2 Official notice is taken of the record in the representation proceed-
ing, Case 13-RC-15816, as the term "record" is defined in Sees. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp.. 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
266 NLRB No. 63
1982, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause. 3
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, Respondent
admits that it was asked, but that it has declined, to
bargain with the Union. It contends, however, that
its refusal to bargain was justified since, as a result
of certain alleged objectionable conduct engaged in
by the Union prior to the election, the Union's cer-
tification was invalid. 4
A review of the record herein, including the
record in Case 13-RC-15816, reveals that, pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted on October 2,
1981, in which the Union received a majority of
the valid votes cast. 5 On October 7, 1981, Local
No. 18 filed timely objections to the election which
the Regional Director, after an investigation, found
raised substantial and material issues that could best
be resolved at a hearing.6 After a hearing on the
objections, the Hearing Officer on January 28,
1982, issued a report recommending that the objec-
tions be overruled in their entirety and that the ap-
propriate certification be issued. On February 25
and 26, 1982, Respondent and Local No. 18, re-
spectively, filed exceptions to the Hearing Officer's
report7 and on March 5, 1982, the Union filed a
I In response to the Notice To Show Cause, Respondent filed a Cross-
Motion for Summary Judgment admitting that there are no genuine issues
of material fact to be tried and that, for the reasons set forth in its excep-
tions to the Hearing Officer's report in Case 13-RC-15816, it was enti-
tled, as a matter of law, to a judgment in its favor
4 The complaint also alleges, and Respondent readily admits, that its
refusal to bargain with the Union was designed to test and obtain judicial
review of the Board's certification.
5 The tally of ballots issued that day revealed that, of 168 valid votes
cast, 89 were cast for the Union and 55 were cast for an Intervenor, Plas-
tic Workers Union, Local No. 18, AFL-CIO (herein referred to as Local
No. 18), with 2 nondeterminative challenged ballots remaining.
In its objections, Local No. 18 claimed that, prior to the election, the
Union intimidated and threatened employees with physical violence and
that the Employer interrogated employees concerning their union sympa-
thies, threatened them with loss of insurance benefits if either union won,
and promised employees a grievance procedure if the unions lost the
election.
I Respondent excepted to the Hearing Officer's refusal to find that the
Union engaged in a campaign of fear, intimidation, and violence prior to
the election. Local No. 18's exceptions focused generally on the Hearing
Officer's failure to sustain its objections
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief in opposition to those exceptions. On July 1,
1982, the Board issued a Decision and Certification
of Representative, adopting, for the most part, the
Hearing Officer's findings and recommendations s
and certifying the Union as the collective-bargain-
ing representative of Respondent's employees in an
appropriate unit.9 As noted, Respondent's defense
in the instant case is based on matters previously
raised in the underlying representation proceeding
which have heretofore been considered and reject-
ed by the Board.
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.'0
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
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
Motion for Summary Judgment. 1'
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with offices
located at 11040 West King Street, Franklin Park,
Illinois, is engaged in the manufacture of plastic
cosmetic bottles and related products. During the
past calendar year, a representative period, Re-
spondent, in the course and conduct of its business,
caused to be shipped to its place of business goods
and materials valued in excess of $50,000 directly
s In its unpublished decision, the Board did not adopt the Hearing Of-
ficer's incorrect interpretation of the Board's holding in TR. W. Bearings
Division, a Division of TR. W. Inc., 257 NLRB 442 (1981), relating to the
validity of no-solicitation rules and reiterated that an objective, rather
than a subjective, test is to be used in determining whether actions tend
to create an atmosphere of fear and reprisal rendering a free election im-
possible.
9 The appropriate unit consists of "All production and janitorial em-
ployees of the Employer located at 11040 West King Street, Franklin
Park, Illinois, 60131 but excluding office clerical employees, plant clerical
employees, professional employees, technical employees, tool and control
department employees, i.e., tool and die, tool and machinery, mainte-
nance mechanics, maintenance and tool set-up, inspectors, outside truck-
drivers, guards and supervisors as defined in the Act."
O 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).
I Respondent's Cross-Motion for Summary Judgment is hereby
denied.
from points and places located outside the State of
Illinois.
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 Electrical, Radio and Machine Workers
of America (UE), 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 a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and janitorial employees of the
Employer located at 11040 West King Street,
Franklin Park, Illinois 60131, but excluding
office clerical employees, plant clerical em-
ployees, professional employees, technical em-
ployees, tool and control department employ-
ees, i.e., tool and die, tool and machinery,
maintenance mechanics, maintenance and tool
set-up, inspectors, outside truck drivers, guards
and supervisors as defined in the Act.
2. The certification
On October 2, 1981, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 13, 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 July 1, 1982, 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 July 1, 1982, and at all
times thereafter, the Union has requested Respond-
ent 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 July 7, 1982, and continuing at all
times thereafter to date, Respondent has refused,
332
T.L.B. PLASTICS CORPORATION
and continues to refuse, to recognize and bargain
with the Union as the exclusive representative for
collective bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
July 7, 1982, 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 ensure 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-
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. 1964), cert. denied 379 U.S. 817;
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:
CONCLUSIONS OF LAW
1. T.L.B. Plastics Corporation is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Electrical, Radio and Machine Work-
ers of America (UE), is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and janitorial employees of the
Employer located at 11040 West King Street,
Franklin Park, Illinois 60131, but excluding office
clerical employees, plant clerical employees, pro-
fessional employees, technical employees, tool and
control department employees, i.e., tool and die,
tool and machinery, maintenance mechanics, main-
tenance and tool set-up, inspectors, outside truck
drivers, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since July 1, 1982, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about July 7, 1982, 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 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)(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
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
T.L.B. Plastics Corporation, Franklin Park, Illinois,
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 Electrical,
Radio and Machine Workers of America (UE), as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and janitorial employees of the
Employer located at 11040 West King Street,
Franklin Park, Illinois 60131, but excluding
office clerical employees, plant clerical em-
ployees, professional employees, technical em-
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, tool and control department employ-
ees, i.e., tool and die, tool and machinery,
maintenance mechanics, maintenance and tool
set-up, inspectors, outside truck drivers, guards
and supervisors as defined 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 Franklin Park, Illinois, facility
copies of the attached notice marked "Appen-
dix."'2 Copies of said notice, on forms provided by
the Regional Director for Region 13, 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 ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
12 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 Pursu-
ant 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 United Electrical, Radio and Machine
Workers of America (UE), as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE 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 WILL, 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 janitorial employees of
the Employer located at 11040 West King
Street, Franklin Park, Illinois 60131, but ex-
cluding office clerical employees, plant cleri-
cal employees, professional employees, tech-
nical employees, tool and control depart-
ment employees, i.e., tool and die, tool and
machinery, maintenance mechanics, mainte-
nance and tool set-up, inspectors, outside
truck drivers, guards and supervisors as de-
fined in the Act.
T.L.B. PLASTICS CORPORATION
334