Kalvar Corp.

National Labor Relations Board - Board Decisions

Dec 12, 1973

207 N.L.R.B. 817 (N.L.R.B. 1973)

KALVAR CORPORATION
Kalvar Corporation and Oil, Chemical and Atomic
Workers International , AFL-CIO, Local 4-447.
Case 15-CA-4955
December 12, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on August 14, 1973, by Oil,
Chemical and Atomic Workers International,
AFL-CIO, Local 4-447, herein called the Union,
and duly served on Kalvar Corporation, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 15, issued a complaint on
August 16, 1973, 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, 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 6, 1973,
following a Board election in Case 15-RC-5042 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 July 23, 1973, 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 August 27, 1973, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On September 10, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September 19,
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. Respon-
dent thereafter filed a response to Notice To Show
Cause opposing the General Counsel's Motion for
Summary Judgment and the Union filed a Statement
in Support of General Counsel's Motion for Summa-
ry Judgment.
i Official notice is taken of the record in the representation proceeding,
Case 15-RC-5042 as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations, Series 8 , as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968);
817
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 attacks the
validity of the Union's majority status and certifica-
tion . It contends that there are substantial issues of
material fact, raised by its objections in the underly-
ing representation case , which were subject only to
an ex parte investigation and which require an
evidentiary hearing.
Our review of the record herein reflects that, in the
election conducted pursuant to the Regional Direc-
tor's December 29, 1972, Decision and Direction of
Election in representation Case 15-RC-5042, the
Union won 42 to 37. The Respondent filed timely
objections to conduct affecting the election alleging,
in substance, that (1) the Union's handbill, to which
the Respondent was unable to respond, contained a
material misrepresentation as to insurance coverage
negotiated between the Union and another employ-
er; (2) the Union threatened, coerced, and intimidat-
ed employees if they voted against the Union; and
(3) the Union's objectionable conduct destroyed the
laboratory conditions for a fair and impartial
election . It also requested an evidentiary hearing in
the event the Regional Director's investigation raised
credibility questions.
After investigation, the Regional Director, on April
18, 1973 , issued a Supplemental Decision and
Direction of Second Election in which he overruled
the Respondent's Objections 2 and 3 as raising no
substantial or material issues with respect to the
election or conduct affecting the results of the
election , but in which, following the Board precedent
in Hollywood Ceramics Company, Inc., 140 NLRB
221, he sustained Objection 1, set aside the first
election thereon, and directed a second election. The
Union timely filed a request for review arguing that
the Regional Director, in sustaining the Respon-
dent's objection, had departed from officially report-
ed precedent. The Respondent filed a statement in
opposition, submitting that the Regional Director's
Supplemental Decision was correct and proper in
fact and law. The Board granted the request for
review and stayed the second election. On May 11,
1973, the Board, Member Kennedy dissenting, issued
Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969);
Intertype Co. v. Penello, 269 F.Supp . 573 (D.C. Va., 1967); Follett Corp., 164
NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
207 NLRB No. 115
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its Decision on Review and Certification of Repre-
sentative (204 NLRB No. 132) in which it found
merit in the Union's contention that the misrepresen-
tation alleged in Respondent's Objection 1 was not a
substantial departure from the truth, and, even if
considered to be such, the Respondent had sufficient
time to bring it to the attention of employees.
Accordingly, the Board considered that the objection
did not raise substantial and material issues affecting
the election and therefore certified the Union as
bargaining representative of the employees involved.
In its answer to the complaint and response to
Notice To Show Cause, the Respondent not only
reiterates its previously raised contentions, but also
argues that the objections raised substantial issues of
material fact, particularly with respect to the employ-
ees' knowledge as to "general practice in group
hospitalization plans," and that these issues require
litigation in an evidentiary hearing which, although
requested in the representation proceeding, was
never held. We do not agree with the Respondent's
position. As indicated above, the Regional Director
found in his Supplemental Decision that Respon-
dent's Objections 2 and 3 raised no substantial or
material issues affecting the election results and the
Respondent's statement to the Board, opposing the
Union's request for review, submitted that the
Regional Director's Supplemental Decision was
correct and proper in fact and law. As to Objection 1,
the Board had also found that it did not raise
substantial and material issues. By these findings, it
was necessarily determined that an evidentiary
hearing on the objections was not required or
warranted.2 It is well established that parties do not
have an absolute right to a hearing on objections to
an election. It is only when the moving party presents
a prima facie showing of "substantial and material"
issues that he is entitled to a hearing.3 It is clear that,
absent arbitrary action, this qualified right to a
hearing satisfies all statutory and constitutional
requirements.4
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.5
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.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Louisiana corporation, maintains its
principal place of business at New Orleans, Louisia-
na, where it is engaged in the manufacture and
wholesale sale of heat developable photographic film
and equipment. During the past 12 months, the
Respondent purchased and received goods and
materials valued in excess of $50,000 directly from
points located outside the State of Louisiana and,
during the same period, sold and shipped its products
valued in excess of $50,000 directly to points located
outside the State of Louisiana.
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
Oil, Chemical and Atomic Workers International,
AFL-CIO, Local 4-447 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 of
the Employer at its New Orleans, Louisiana,
plants, including group leaders, janitors, the chief
operating engineer, engineers, quality control and
photometric laboratory employees; excluding
office clerical employees, research and develop-
ment employees, professional employees, guards
and supervisors as defined in the Act.
2 Plastic Masters, Inc., 206 NLRB No. 105. 4 Ibid
3 See Modine Manufacturing Company, 203 NLRB No. 77, and cases 5 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
cited in fns. 3 and 4 therein. Rules and Regulations of the Board , Secs . 102.67(f) and 102.69(c).
KALVAR CORPORATION 819
2. The certification
On January 25, 1973, a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional
Director for Region 15 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 6, 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 July 16, 1973, 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 July 23, 1973, and continuing at
all times thereafter to date, 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 July 23, 1973, and at all times thereafter,
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,
1964), cert . denied 379 U.S. 817 ( 1964); Burnett
Construction Company, 149 NLRB 1419, 1421, enfd.
350 F .2d 57 (C.A. 10, 1965).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Kalvar Corporation is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Oil, Chemical and Atomic Workers Interna-
tional , AFL-CIO, Local 4-447, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
the Employer at its New Orleans, Louisiana, plants,
including group leaders, janitors, the chief operating
engineer, engineers , quality control and photometric
laboratory employees; excluding office clerical em-
ployees, research and development employees, pro-
fessional employees, 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 6, 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 July 23, 1973, 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 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
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices affecting commerce within the mean - recommendation that , under the Hollywood Ceramics
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,
Kalvar Corporation, New Orleans, Louisiana, 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 Oil, Chemical and
Atomic Workers International, AFL-CIO, Local
4-447, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees of
the Employer at its: New Orleans, Louisiana,
plants, including group leaders, janitors, its chief
operating engineer, engineers, quality control and
photometric laboratory employees; excluding
office clerical employees, research and develop-
ment employees, professional employees, 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 New Orleans, Louisiana, plants copies
of the attached notice marked "Appendix."6 Copies
of said notice, on forms provided by the Regional
Director for Region 15 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'thereaf-
ter, 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 15 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER KENNEDY, dissenting:
As I would have affirmed the Regional Director's
precedent, the election should be set aside because of
the Union's preelection misrepresentations, I dissent
from the granting of the General Counsel's Motion
for Summary Judgment.
6 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 Oil,
Chemical and Atomic Workers International,
AFL-CIO, Local 4-447, as the exclusive repre-
sentative 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 employees
of the Employer at its New Orleans, Louisia-
na, plants, including group leaders, janitors,
the chief operating engineer, engineers,
quality control and photometric laboratory
employees; excluding office clerical employ-
ees, research and development employees,
professional employees, guards and supervi-
sors as defined in the Act.
KALVAR CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
KALVAR CORPORATION 821
Any questions concerning this notice or compli- Howard Avenue, New Orleans, Louisiana 70113,
ance with its provisions may be directed to the Telephone 504-527-6361.
Board's Office , Plaza Towers, Suite 2700, 1001