Penetone Corporation

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1391 (N.L.R.B. 1982)

PENETONE CORPORATION
Penetone Corporation and Local 626, International
Chemical Workers Union, AFL-CIO. Case 22-
CA- 10982
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on July 10, 1981, by Local
626, International Chemical Workers Union, AFL-
CIO, herein called the Union, and duly served on
Penetone Corporation, herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
22, issued a complaint on August 5, 1981, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional 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 May 5,
1981,' following a Board election in Case 22-RC-
8375, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;2 and
that, commencing on or about May 17, 1981, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so, and, in addition, has refused,
and continues to date to refuse, to comply with the
Union's request for information necessary for col-
lective bargaining. On August 14, 1981, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On February 5, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
10, 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
'The Board certification is dated May 11, 1981
'Official notice is taken of the record in the representation proceeding,
Case 22-RC-8375, as the term "record" is defined in Secs 102 68 and
102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See
LTVElectrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype 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
260 NLRB No. 188
thereafter filed a response to the Notice To Show
Cause.
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 its response to
the Notice To Show Cause, Respondent admits its
refusal to bargain with the Union and to supply the
Union with the requested information. Respondent
denies, however, that it thereby violated Section
8(a)(5) and (1) of the Act, arguing that the election
held on January 9, 1981, should have been set
aside. Specifically, Respondent alleges that, during
the election campaign, the Union improperly of-
fered to waive initiation fees only for those em-
ployees who signed authorization cards before the
election and also misrepresented that, if it won the
election, the employees could decertify it at any
time. Respondent further contends that a hearing
should have been held concerning the alleged ob-
jectionable conduct.3 The General Counsel asserts
that Respondent improperly seeks to relitigate
issues which were raised and decided by the Board
in the representation case. We agree.
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
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.
On the basis of the entire record, the Board
makes the following:
' In its answer, Respondent denies the appropriateness of the certified
unit. However, Respondent does not make this claim in its response to
the Notice To Show Cause and, in any event, it cannot now challenge
the appropriateness of the unit, since it stipulated to its appropriateness in
the representation proceeding. The Baker and Taylor Co., 109 NLRB 245,.
246 (1954)
' See Pittsburgh Plate Glass Co, v N.L.RB. 313 US 146, 162 (1941);
Rules and Regulations of the Board, Secs 102 67(0 and 102 69(c).
1391
DECISIONS OF NATIONAL I ABOR RELATIIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONI)ENT
Respondent, a New Jersey corporation, has its
principal office and place of business at 74 Hudson
Avenue, Tenafly, New Jersey, where it is engaged
in the manufacture, sale, and distribution of chemi-
cals and related products and services. Annually, in
the course of its business, Respondent manufac-
tures, sells, and distributes at the Tenafly facility
goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of
$50,000 are shipped from the Tenafly facility di-
rectly to points located outside the State of New
Jersey.
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.
11. THE LABOR ORGANIZATION INVOI.VI I)
Local 626, International Chemical Workers
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. 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 full-time and regular part-time production
and maintenance employees, including Texaco
terminal employees, employed at its Tenafly,
New Jersey, plant, excluding all quality con-
trol technicians, chemists, foremen, office
clerical employees, managerial employees,
guards and supervisors as defined in the Act.
2. The certification
On January 9, 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 22, 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 May 11, 1981, 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 17, 1981, 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. In addi-
tion, since on or about May 17, 1981, the Union
has requested Respondent to furnish it with data
relating to overtime, employee terminations and
turnover, retirement plans, employee demographic
information, wage rates, health and safety informa-
tion, employee benefits and related matters for em-
ployees in the above-described unit. This informa-
tion is necessary for the Union's performance of its
function as the exclusive representative of the unit
employees, a fact which Respondent does not dis-
pute, save for its challenge to the Union's repre-
sentative status. Commencing on or about May 17,
1981, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit or to furnish the Charging
Party with the above-described information.
Accordingly, we find that Respondent has, since
May 17, 1981, 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 Respondent has since that date
and at all times thereafter refused to supply infor-
mation to the Union, which information is neces-
sary for collective bargaining. We find that, by
such refusal, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EIFECTI OF THIE 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 1, 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. THI 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
1392
PENETONE CORPORATION
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement. We shall also order Respondent to
supply the information requested by the Union.
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-
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:
CONCI LUSIONS OF LAW
1. Penetone Corporation is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 626, International Chemical Workers
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees, including Texaco ter-
minal employees, employed at its Tenafly, New
Jersey, plant, excluding all quality control techni-
cians, chemists, foremen, office clerical employees,
managerial 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 May 11, 1981, 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 17, 1981, 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 refusing on or about May 17, 1981, and at
all times thereafter, to supply information requested
by the Union, which information is necessary for
collective bargaining, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
7. By the aforesaid refusal to bargain and pro-
vide information, Respondent has interfered with,
restrained, and coerced, and is interfering with, re-
straining, and coercing, employees in the exercise
of the rights guaranteed them in Section 7 of the
Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
8. 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,
Penetone Corporation, Tenafly, New Jersey, its of-
ficers, 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 Local 626, Interna-
tional Chemical Workers Union, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees, including Texaco
terminal employees, employed at its Tenafly,
New Jersey, plant, excluding all quality con-
trol technicians, chemists, foremen, office
clerical employees, managerial employees,
guards and supervisors as defined in the Act.
(b) Refusing to provide the above-named labor
organization with the information requested by it
on May 17, 1981, which information is necessary
for purposes of collective bargaining.
(c) 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) Provide the above-named labor organization
with the information requsted by it on May 17,
1981.
1393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its Tenafly, New Jersey, facility
copies of the attached notice marked "Appendix." s5
Copies of said notice, on forms provided by the
Regional Director for Region 22, 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 22,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 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 Local 626, International Chemical Work-
ers Union, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT refuse to supply, upon re-
quest by the above-named Union, information
relevant to and necessary for the purpose of
collective bargaining.
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 full-time and regular part-time produc-
tion and maintenance employees including
Texaco terminal employees employed at its
Tenafly, New Jersey, plant, excluding all
quality control technicians, chemists, fore-
men, office clerical employees, managerial
employees, guards and supervisors as de-
fined in the Act.
WE WILL supply the above-named Union
with the information requested by it on May
17, 1981.
PENETONE CORPORATION
1394