Consolidated Papers, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1980

253 N.L.R.B. 283 (N.L.R.B. 1980)

CONSOLIDATED PAPERS, INC
Consolidated Papers, Inc. and Office & Professional
Employees International Union, Local 95, AFL-
CIO. Case 30-CA-5815
November 13, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND ME MBHIRS
JI NKINS ANI) P NI 0
Upon a charge filed on May 12, 1980,' by Office
& Professional Employees International Union,
Local 95, AFL-CIO, herein called the Union, and
duly served on Consolidated Papers, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 30, issued a complaint on May
30, 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, since at least on
or about August 31, 1978, the Union has been rec-
ognized as the exclusive collective-bargaining rep-
resentative of certain of Respondent's employees.-
On January 8, the Regional Director issued a Deci-
sion and Order Granting Clarification of Bargain-
ing Unit and, on January 15, a Supplemental Deci-
sion and Order Granting Clarification of Bargain-
ing Unit in Case 30-UC-1533 to include six cus-
tomer service representatives employed by Re-
All datesl herein aret i 1980 unles' otherwise ndicated
: All eligihblc employees engaged in office aid clcrlcal work in he f-
fices of Wisconsill Rapids Division Kraft Division, Paperboard Products
Division. Main Office, Consoweld Corporation, and Conrsoweld Drisribu-
tors. Inc. and any successors or assigns, all of which are located in the
city of Wisconsin Rapids, Wood Cunty Wisconsin. Biron Division and
Research and I)evelopment Division. which are locaited in the Village of
Biron, Wood County. Wisconsin and all eligible employees engaged il
office aid clerical work and employees classified as Technicians in the
offices of the Wisconsin Riser Division, located i the Village of Whiting
and the Township of inwood. Portage County, Wisconsin The term
"eligible employees" shall he defined as "hourly paid employees engaged
In office and clerical ork " Managerial, supervisory, professional, tech-
iical (other than hose cosered by the collectise-hargalining agreement).
and confidential employees as defined i the Labor Manlagemen Rela-
lions Act of 1947. as amended. are excluded
:l Official notlice is taken of the record in the clarification proceeding.
Case 30-UC 153. as the term "record" i defined i Secs 102 68 and
102 69 (g) of the Board's Rules aid Regulations, Series 8, as amended See
LTV Eleitroyvremns. Inc.. 166 NLRB 938 (1967), enfd 388 2d 683 14th
Cir 1968) Go/lden Age B'evruge C'o, 167 NLRB 151 (1967), cnfd 415
F2d 26 (51h Cir 19691 lnertpe Co. v Penellh. 269 Supp 573
(ID CVa 1967) Iillhrtt (orp. 164 NR B 378 (1907). enfd 397 F 2d 91
(71h Cir. I19b81 Sec 9(d) of the NLRA as amended
On March 5, the Board deneld Resprndenl's request fr rex icvs of the
Regional I)irector's Decision and O)rder and Supplement;al I)ecsiilon and
Order
spondent at its Wisconsin Rapids, Wisconsin, loca-
tion. The complaint further alleges that, commenc-
ing on or about March 25, 4 and at all times thereaf-
ter, Respondent has refused, and continues to date
to refuse, to bargain collectively with the Union as
the exclusive bargaining representative of the em-
ployees in the unit as clarified, although the Union
has requested and is requesting it to do so. On June
6, Respondent filed its answer to the complaint ad-
mitting in part, and denying in part, the allegations
in the complaint. On June 23, the six customer
service representatives, by their attorney, filed with
the Regional Director a "Motion To Intervene" in
the instant case. Thereafter, on June 27, the Acting
Regional Director filed an order referring the
Motion To Intervene to the Board for determina-
tion.
Oti June 27, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 9, 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 Judg-
ment should not be granted. Respondent filed a re-
sponse to the Notice To Show Cause and a state-
ment in support of the six employees' Motion To
Intervene, and the Charging Party filed a brief in
support of the Motion for Summary Judgment and
in opposition to the Motion To Intervene. Subse-
quently, in a letter dated July 31, the Board noti-
fied the six customer service representatives,
through their attorney, of the opportunity to file a
response to the Notice To Show Cause. No such
response has been filed.
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 and response to
the Notice To Show Cause, Respondent contends
that the Board erroneously clarified the unit to in-
clude the six customer service representatives. The
General Counsel argues that all material issues
have been previously decided. We agree with the
General Counsel. 5
' he complaint inadverienly refers to March 29 rather than March
25 as the date upon wlhich Respoidenil refused to bargain
()On May 5, the six custoler service rerresenltalves filed a civil lactlon
in lti It lnted States District Court o Ihe W'esler ll )istrict of Wisconi)n,
seeking iiJullctlie relief frori the Iloard's action i1 lariflng them ino
the eXsiilg hargaining uit (Sundru .. -l/ln. ebhrah ( hu,,le. (eruld
(i ('lork. (eiorie /E 11idn,,irnih ( -itndr,* OluriA. und t Duid anrldr
(C ntlinued
253 NLRB No. 34
283
)ELCISIONS OF NATIONAL L.ABOR RELATIONS BO()ARD
Review of the record, including that in the un-
derlying unit clarification proceeding, shows that,
following a hearing, the Regional Director for
Region 30 issued a Decision and Order on January
8 and a Supplemental Decision and Order on Janu-
ary 15, finding that Respondent's six customer
service representatives are an accretion to the exist-
ing unit represented by the Union. Thereafter, Re-
spondent filed timely requests for review of the Re-
gional Director's decisions. On March 5. by tele-
gram, the Board denie Respondent's requests for
review. Further, on March 20, the Board tele-
graphically denied Respondent's "Request for Re-
consideration of Denial of Request for Review,"
which had been filed on March 7. Under the provi-
sions of Section 102.67(b) of the Board's Rules and
Regulations, Series 8, as amended, denial of a re-
quest for review constitutes an affirmance of the
Regional Director's action and also precludes reliti-
gating any such issues in any related unfair labor
practice proceeding. Respondent now claims that
the six employees should not be included in the
bargaining unit on the grounds, inter lia, that: (1)
they are managerial eniployees: (2) they do not
desire inclusion in the unit; and (3) they are ex-
cluded by the description of the bargaining unit in
the applicable collective-bargaining agreement.
These contentions were fully considered and re-
jected in the underlying clarification proceeding.
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."
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.
Z(rIt N I R I , N 8N(1 C 199) As Triold prcLiously, the iix Cmrply -
eS h.l Ito.l, Cd tO I l rl[ lillt' I I bis cile oa the gro iund tihai they are te
erlplo ee%, ,khwIsu rpreenrll;itiol by tilt I olin contlllS lt. tile hbsis of tile
iltalrlt Ullflair labor practice comllplailll, and thereforce tit (dispositioll of1
Ih, case Iil, "linpan or ilpede Ihler ability to protecl their llteresct
W hcrhy dcll thtC Motion lio Intcrlec The Ihroild is of the pillniot
thal there is lno basis I{r permittillg the nlplhyict e l, It lelrelc, and thall
rtllilg tIIo pernlllt sl' h irtcrtventito l ould 11ol prejudice helil tderit.;
district court sluit, which i ill h decided upon its oiux i ilerit,
e et I'St llireli I'hw (a, ( o. N. R B.3 13 U S 146, 162 ( 1411
Rules iand Rgulations of ce Boardl. Scs 10)2 7(f) aMid 12 19(cl
On the basis of the entire record, the Board
makes the following:
FINI)IN(iS 01 FAC'I
I. I H BUSINLSS 01 RSPONI)l NI'
Respondent, a Wisconsin corporation, with head-
quarters and a production facility in Wisconsin
Rapids, Wisconsin, is engaged in the production
and distribution of paper products. During the past
calendar year, Respondent, in the course and con-
duct of its business operations, sold and shipped
from its Wisconsin Rapids, Wisconsin, facility
products, goods, and materials valued in excess of
$50.000 directly to points located outside the State
of Wisconsin.
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. 'I H lABOR OR(;ANIZATION INVOI.VLD)
Office & Professional Employees International
Union, Local 5, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
IIl. TI'lE NIAIR I AOR PRACTICRS
A. The Unit, and the Union s Representative
Sltulus
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 eligible employees engaged in office and
clerical work, including customer service rep-
resentatives, in the offices of Wisconsin Rapids
Division, Kraft Division, Paperboard Products
Division, Main Office, Consoweld Corpora-
tion, and Consoweld Distributors, Inc., and
any successors or assigns, all of which are lo-
cated in the city of Wisconsin Rapids, Wood
County, Wisconsin; Biron Division and Re-
search and Development Division, which are
located in the Village of Biron, Wood County,
Wisconsin; and all eligible employees engaged
in office and clerical work and employees clas-
sified as Technicians in the offices of the Wis-
consin River Division, located in the Village
of Whiting and the Township of Linwood,
Portage County, Wisconsin. The term "eligible
employees" shall be defined as "hourly paid
employees engaged in office and clerical
work." Managerial. supervisory, professional,
284
)NS()I II)AT'II) APIRS, INC
technical (other than those covered by the col-
lective-hargaining agreement), and confidential
employees as defined in the Labor Manage-
ment Relations Act of 1947, as amended, are
excluded.
The Union has been the collective-bargaining
representative of all the employees in said unit, and
the Union continues to be such exclusive repre-
sentative, within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Rcfusal
Commencing on or about January 18, 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 25, 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 25, 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 i unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. TEi EFIECT OF THE UNFAIR ABOR
PRACTICES UP'ON COMMER(CI
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 RMED l)Y
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 the employees
in the appropriate unit, including the six customer
service representatives.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI tSIONS OlF L.Xw
1. Consolidated Papers, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Office & Professional Employees International
Union, Local 95, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All eligible employees engaged in office and
clerical work, including customer service repre-
sentatives, in the offices of Wisconsin Rapids Divi-
sion, Kraft Division, Paperboard Products Divi-
sion, Main Office, Consoweld Corporation, and
Consoweld Distributors, Inc., and any successors
or assigns, all of which are located in the city of
Wisconsin Rapids, Wood County, Wisconsin; Biron
Division and Research and Development Division,
which are located in the Village of Biron, Wood
County, Wisconsin: and alleligible emplosees en-
gaged in office and clerical work and employees
classified as Technicians in the offices of the W'is-
consin River Division, located in the Village of
Whiting and the Township of Linwood. Portage
County, Wisconsin. constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. The term "eli-
gible employees" shall he defined as "hourly paid
employees engaged in office and clerical work."
Managerial, supervisory, professional, technical
(other than those covered b the collective-bar-
gaining agreement), and confidential employees as
defined in the Labor Management Relations Act of
1947. as amended, are excluded.
4. Since January 8, 1980, the above-named labor
organization has been and now is the exclusi,~e rep-
resentative of all employees in the aforesaid appro-
priate unit as it has been clarified, for the purpose
of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By refusing on or about March 25, 1980. and
at all times thereafter, to bargain collectively ith
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 ini and is engaging in unfair labor practices
within the mricaning of Section 8(a)(1) of the Act.
2S
I)LCISI()NS ()F NATIONAL. I.ABOR RELATIONS BOARI)
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,
Consolidated Papers, Inc., Wisconsin Rapids, Wis-
consin, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Office & Profes-
sional Employees, International Union, Local 95,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All eligible employees engaged in office and
clerical work, including customer service rep-
resentatives, in the offices of Wisconsin Rapids
Division, Kraft Division, Paperboard Products
Division, Main Office, Consoweld Corpora-
tion, and Consoweld Distributors, Inc., and
any successors or assigns, all of which are lo-
cated in the city of Wisconsin Rapids, Wood
County, Wisconsin; Biron Division and Re-
search and Development Division, which are
located in the Village of Biron, Wood County,
Wisconsin; and all eligible employees engaged
in office and clerical work and employees clas-
sified as Technicians in the offices of the Wis-
consin River Division, located in the Village
of Whiting and the Township of Linwood,
Portage County, Wisconsin. The term "eligible
employees" shall be defined as "hourly paid
employees engaged in office and clerical
work." Managerial, supervisory, professional,
technical (other than those covered by the col-
lective-bargaining agreement), and confidential
employees as defined in the Labor Manage-
ment Relations Act of 1947, as amended, are
excluded.
(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 the 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 Wisconsin Rapids, Wisconsin, fa-
cility copies of the attached notice marked "Ap-
pendix." 7 Copies of said notice, on forms provided
by the Regional Director for Region 30. after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable 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 30,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
7 In he event that his Order is enforced by a Judgment of a United
Slates Court of Appeals, the word' in the notice reading 'Posled by
Order of the National l.ahor Relations Board" shall read Posted Pursu-
ant o a Judgment of the United Slates Court of Appeals nforrciig an
Order of Ihe National Labor Relations Board"
APPENDIX
NOrTICE TO EMPOYEES
PosTFnD BY ORDER OF THF
NATIONAL LABOR REILATIONS BOARD
An Agency of the United States Government
WI: W.L N refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Office & Professional Employees Interna-
tional Union, Local 95, AFL-CIO, as the ex-
clusive representative of the employees in the
bargaining unit described below.
WI WIl.L Nor 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 wir.L, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all the 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 eligible employees engaged in office and
clerical work, including customer service
representatives, in the offices of Wisconsin
Rapids Division, Kraft Division, Paperboard
Products Division, Main Office, Consoweld
Corporation, and Consoweld Distributors,
C()NS(OI.II)A'II) PAPI'IRS, INC
Inc., and any successors or assigns, all of
which are located in the city of Wisconsin
Rapids, Wood County, Wisconsin; Biron Di-
vision and Research and Development Divi-
sion, which are located in the Village of
Biron, Wood County, Wisconsin; and all eli-
gible employees engaged i office and clcri-
cal work and employees classified as Tech-
nicians in the offices of the Wisconsin River
Division, located in the Village of Whiting
and the Township of Linwood, Portage
County, Wisconsin. The term "eligible em-
ployeces" shall be defined as "hourly paid
employees engaged in office and clerical
work." Managerial, supervisory, profession-
al, technical (other than those covered by
the collective-bargaining agreement), allnd
confidential employees as defined in tlhe
L.abor Management Relations Act of 1947,
as amended, are excluded.
CONSOI IDA'I 1I) PAPIERS, IN(.
2S7