Superior Rig Manufacturing of Louisiana, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1470 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Rig Manufacturing of Louisiana, Inc. and
United Paperworkers International Union,
AFL-CIO. Case 15-CA-8399
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on December 2, 1981, by
United Paperworkers International Union, AFL-
CIO, herein called the Union, and duly served on
Superior Rig Manufacturing of Louisiana, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 15, issued a complaint
on December 4, 1981, 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. Subsequently, Respondent filed an
answer, admitting in part and denying in part, the
allegations of the complaint.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
14, 1981, following a Board election in Case 15-
RC-6762, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about November
13, 1981, 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 or about
December 17, 1981, Respondent filed its answer to
the complaint admitting in part, and denying in
part, the allegations in the complaint.
On December 24, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December
31, 1981, 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 an "Opposition to Motion for Sum-
mary Judgment and Response to Board's Notice
To Show Cause."
Official notice is taken of the record in the representation proceeding,
Case 15-RC-6762, 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); 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. 201
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 has refused to recognize, meet, and
bargain with the Union but it contests the validity
of the Board's certification of the Union in the un-
derlying representation proceeding. It denies that
the Union is, in fact, the proper representative for
collective-bargaining purposes of the employees in
the appropriate unit, and it denies that an "un-
coerced" majority of the employees selected the
Union in the election in the underlying proceeding.
In its opposition to the General Counsel's
Motion for Summary Judgment, Respondent fur-
ther argues that the election held herein should
have been set aside because of the Union's promise
of financial and other rewards to some employees;
because of the Union's coercion and threats of re-
taliation against other employees; because of the ef-
forts of company supervisors on behalf of the
Union; and because of the atmosphere of fear and
coercion brought about by the Union due to an
election day rumor that company supporters would
be physically assaulted if the Union lost the elec-
tion. Respondent also argues that, in overruling
various of its election objections, the Regional Di-
rector had made credibility resolutions which war-
rant a hearing, or ignored the fact that certain ob-
jections raised material facts which warranted a
hearing. While acknowledging that it is the Board's
usual practice not to allow in a refusal-to-bargain
proceeding relitigation of issues that were litigated
in a prior representation proceeding, Respondent
requests the Board to do so in this case.
Our review of the record herein, including the
record in Case 15-RC-6762, reveals that on Febru-
ary 27, 1981, the Regional Director for Region 15
approved a Stipulation for Certification Upon Con-
sent Election entered into by Respondent and the
Union concerning the unit involved in this pro-
ceeding. Thereafter, on April 2, 1981, an election
was conducted under the direction and supervision
of the Regional Director for Region 15 among the
employees in the unit found appropriate. The tally
of ballots indicated that, of 77 eligible voters, 40
cast ballots for, and 33 cast ballots against, the
Union. There were three challenged ballots, an in-
sufficient number to affect the results of the elec-
tion.
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SUPERIOR RIG MANUFACTURING OF LOUISIANA
Thereafter, on April 8, 1981, Respondent filed
objections to the election in which it contended
that the Union had interfered with the laboratory
conditions by offering financial benefits and other
rewards; that employees were coerced and re-
strained by the Union through threats of economic
loss, physical harm, or other retaliation if they did
not support the Petitioner; and that the election
was tainted with supervisory interference. After an
investigation of those objections, the Regional Di-
rector, on May 29, 1981, in a report on objections,
recommended overruling all of Respondent's objec-
tions and certifying the Union as the exclusive bar-
gaining representative of the employees in the unit
found appropriate. The Regional Director conclud-
ed that Respondent's objections raised no substan-
tial or material issues affecting the results of the
election; he also denied Respondent's request for a
hearing on the objections. On June 12, 1981, Re-
spondent filed exceptions to the Regional Direc-
tor's report and the Union filed a response to those
exceptions. On September 14, 1981, the National
Labor Relations Board issued a Decision and Certi-
fication of Representative (not included in bound
volumes of Board Decisions) adopting the Regional
Director's findings and recommendations certifying
the Union as the exclusive bargaining representa-
tive of the employees in the appropriate bargaining
unit. The Board also denied Respondent's request
for a hearing as it found the exceptions raised "no
material or substantial issues of fact or law" war-
ranting a hearing.
As previously noted, Respondent, in its opposi-
tion to the Motion for Summary Judgment, alleges
that the organizational process was tainted by the
Union's promise of financial and other rewards to
some employees; by the Union's coercion and
threats of retaliation against other employees; by
the efforts of company supervisors on behalf of the
Union; and by the atmosphere of fear and coercion
brought about by the Union due to the election
day rumor that company supporters would be
physically assaulted if the Union lost the election.
These issues were considered and disposed of in
the underlying representation proceeding. As Re-
spondent acknowledges, it is well settled that in the
absence of newly discovered or previously unavail-
able evidence or special circumstances a respond-
ent 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 repre-
sentation proceeding.2
2
See Pittsburgh Plare 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).
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 do we
find here any special circumstances 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 pro-
ceeding. Accordingly, we grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Louisiana corporation with a fa-
cility located in DeRidder, Louisiana, where it is
engaged in the manufacture and sale of oil field
masts, derricks, and substructures. During the 12
months preceding the issuance of the complaint, a
representative period, Respondent in the course
and conduct of its business operations purchased
and received goods and materials valued in excess
of $50,000 directly from points located outside the
State of Louisiana.
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 VED
United Paperworkers International 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
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 maintenance employees, in-
cluding plant clerical employees, employed by
Respondent at its facility located in DeRidder,
Louisiana; excluding all office clerical employ-
ees, truckdrivers, guards, watchmen and super-
visors as defined in the Act.
1471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On April 2, 1981, 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
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on September 14, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 31, 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. Com-
mencing on or about November 13, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
November 13, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 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-
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. Superior Rig Manufacturing of Louisiana,
Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Paperworkers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees,
including plant clerical employees, employed by
Respondent at its facility located in DeRidder,
Louisiana; excluding all office clerical employees,
truckdrivers, guards, watchmen 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 April 2, 1981, 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 November 13, 1981,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, 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.
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SUPERIOR RIG MANUFACTURING OF LOUISIANA
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,
Superior Rig Manufacturing of Louisiana, Inc.,
DeRidder, Louisiana, its officers, agents, succes-
sors, 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 Paper-
workers International Union, AFL-CIO, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees, in-
cluding plant clerical employees, employed by
Respondent at its facility located in DeRidder,
Louisiana; excluding all office clerical employ-
ees, truckdrivers, guards, watchmen and super-
visors 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 facility in DeRidder, Louisiana,
copies of the attached notice marked "Appendix."3
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
' 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."
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 15,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Paperworkers International
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining 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 maintenance employees,
including plant clerical employees, em-
ployed at our facility located in DeRidder,
Louisiana; but excluding all office clerical
employees, truckdrivers, guards, watchmen
and supervisors as defined in the Act.
SUPERIOR RIG MANUFACTURING OF
LOUISIANA, INC.
' U.S. Government Printing Office: 1983-381-554/'7
1473