Polyflex M Co.

National Labor Relations Board - Board Decisions

Mar 2, 1979

240 N.L.R.B. 1153 (N.L.R.B. 1979)

POLYFLEX M COMPANY 1153
Polyflex M Company and United Paperworkers, In-
ternational Union. AFL-CIO, CLC. Case 15-CA-
7103
March 2, 1975
DECISION AND ORDER
BY MEMBERS PENELL.O. JENKINS, AND TRUESDALE
Upon a charge filed on November 3, 1978, by
United Paperworkers International Union, AFL-
CIO, CLC, herein called the Union, and duly served
on Polyflex M Company, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
15, issued a complaint and notice of hearing on No-
vember 22, 1978, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 no-
tice of hearing before an administrative law judge
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on September 15,
1978, following a Board election in Case 15-RC-
6319, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; ' and that,
commencing on or about October 16, 1978, 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 representative,
although the Union has requested and is requesting it
to do so. On December 1, 1978, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On December 18, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 27,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
Official notice is taken of the record in the representation proceeding.
Case 15-RC-6319. 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
LT' Electrosstemnt. 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); Intertnpe Co. v. Penello. 269 F.Supp. 573 (D.C.Va. 1967):
Follerr Corp.. 164 NIRB 378 (1967). enfd. 397 F.2d 91 (7th Cir 1968): Sec.
9(d) of the NLRA as amended.
240 NLRB No. 149
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, in essence, contests the validity
of the Board's certification by disputing the appro-
priateness of the unit and by denying that the Union
is the exclusive representative of a majority of the
employees in that unit. In this latter regard, Respon-
dent, in its response to the Notice To Show Cause,
contends that: (1) the Union's manner of soliciting
authorization cards warranted setting aside the elec-
tion under the Supreme Court's decision in N.L.R.B.
v. Savair Manufacturing Co., 414 U.S. 270 (1973);
and (2) the petition in the underlying representation
case should have been dismissed because the Union's
showing of interest was tainted by the support of an
alleged supervisor in its organizing campaign. In ad-
dition, Respondent contends that the failure of the
Board to grant a hearing on its objections to the elec-
tion in the underlying representation case deprived it
of due process of law, and that it is entitled to a
hearing on the issues.
Our review of the record herein, including the rec-
ord in Case 15-RC-6319, reveals that, on July 17,
1978, following a representation hearing, the Acting
Regional Director for Region 15 issued a Decision
and Direction of Election in which he found that the
appropriate unit consisted of all production and
maintenance employees, including quality control
employees and the extruder department employees
employed by the Employer at its Summit, Mississip-
pi, facility, excluding all other employees, office cleri-
cal employees, professional employees, technical em-
ployees, salesmen, summer employees, the
president's son, guards, foremen, and supervisors as
defined in the Act. At the representation hearing, the
parties also litigated the supervisory status of Charles
Hewett, the individual alleged to have improperly as-
sisted the Union in the solicitation of authorization
cards. In his Decision and Direction of Election, the
Acting Regional Director was unable to resolve the
conflicting evidence regarding Hewett's supervisory
status and ruled that Hewett should vote in the elec-
tion, subject to challenge. On July 19, 1978, Respon-
dent requested an investigation into the validity of
the Union's showing of interest on the basis of
Hewett's alleged organizing efforts on behalf of the
Union. On July 24, 1978, the Acting Regional Direc-
POLYFLEX M COMPANY
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1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor denied the request for an administrative investi-
gation prior to the election in view of Hewett's unre-
solved status. Thereafter, on July 28, 1978, Respon-
dent then filed with the Board a request for review of
the Decision and Direction of Election, contesting
the inclusion of two shipping clerks in the unit. On
August 15, 1978, the request for review was denied.
On August 17, an election was conducted among the
employees in the unit found appropriate. The tally of
ballots indicated that of approximately 43 eligible
voters, 26 cast ballots for, and 15 against, the Union.
There were five challenged ballots, an insufficient
number to affect the results of the election.
Thereafter, on August 24, 1978, Respondent filed
objections to the election contending that the Union
had engaged in conduct violative of the rule set forth
in Savair, supra; that Hewett's involvement in the
Union's organizing efforts tainted its showing of in-
terest; that the conduct of two prounion supervisors
during the organizing campaign interfered with a free
and fair election; and that the use of one of Respon-
dent's supervisors as a union observer also interfered
with a fair election. On September 15, 1978, the Act-
ing Regional Director overruled these objections in
their entirety and certified the Union as the exclusive
bargaining representative of the employees in the
unit found appropriate. On September 26. 1978, Re-
spondent requested that the Board review the Acting
Regional Director's Supplemental Decision and Cer-
tification of Representative. That request was denied
by the Board on November 9, 1978.
As previously noted, Respondent, in its answer
and in its response to the Notice To Show Cause.
challenges the validity of the Union's certification by
contesting the appropriateness of the unit, by disput-
ing the validity of the Union's showing of interest,
and by seeking to have the election set aside for the
reasons stated in Saiair, supra. These contentions
were considered and rejected by the Board at various
stages in the underlying representation proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously unavailable evidence, nor does it allege that
any special circumstances exist herein which would
See Pittshburgh Plae (;la.ss (C, v. '.L.R.B. 313 U.S. 146. 162 (1941).
Rules and Regulations of he Board. Secs. 102.67(f) and 102.6
9
(c1
require the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding.
As noted above, in response to the General Coun-
sel's Motion, Respondent also contends that due pro-
cess entitled it to a hearing on its objections to the
election. Prior to adopting the findings, conclusions,
and recommendations of the Acting Regional Direc-
tor's Supplemental Decision and Certification of
Representative, the Board considered the decision,
Respondent's exceptions thereto, and the entire rec-
ord in the case. By its adoption of the Supplemental
Decision recommending that Respondent's objec-
tions be overruled, the Board necessarily found that
the objections raised no substantial or material issues
warranting a hearing.3 Further, it is well established
that parties do not have an absolute right to a hear-
ing on objections to an election. It is only when the
moving party presents a prima facie showing of sub-
stantial and material issues which would warrant set-
ting aside the election that it is entitled to an eviden-
tiary hearing. It is clear that, absent arbitrary action,
this qualified right to hearing satisfies the constitu-
tional requirements of due process.4 Accordingly, on
the basis of the foregoing, we grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDIN(iS OF FACTI
1. IIIE BUSINESS OF RESPONI)ENT
Respondent is a Mississippi corporation with a fa-
cility located in Summit, Mississippi, where it is en-
gaged in the manufacture and sale of plastic polyeth-
ylene bags. In the 12 months preceding issuance of
the complaint, Respondent, in the course and con-
duct of its business operations at Summit, Mississip-
pi, purchased and received goods and materials val-
ued in excess of $50,000 directly from points located
outside the State of Mississippi. During the same pe-
riod, Respondent also sold and shipped goods and
materials valued in excess of $50,000 from its facil-
ities in Summit, Mississippi, directly to points located
outside the State of Mississippi.
We find, on the basis of the foregoing, as Respon-
dent admits that Respondent is, and has been at all
I Lionswille A4uto Parrs, In(c. 217 NI.RB 660 (1975). Furthermore, in his
Supplemental Decision the Acting Regional Director specifically concluded
that the Employer's objections raised no substantial or material ssues war-
ranting a hearing.
4(GIt Lenkuri. Iniorporcated. 218 NI.RB 929 1975)1 Heavenlis Valley Ski
.4rea. a ( lalifornia (Crporatisn. and heaven/ Vafll/er, a Partnership, 215
NlRB 734 (1974)1 Amalgamaied (lothing Workers of America /'infield
:Ianutaliwlrilg (ontpml. Inc] N 1, R B. 424 F.2d 818 D.C. Cir. 1970).
POLYFLEX M COMPANY 1155
times material herein. an employer engaged in com-
merce 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 OR(iANIZAFION INVOLVII)
United Paperworkers International Union, AFL
CIO, CLC, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE NFAIR LABOR PRACI(ES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees in-
cluding quality control employees and the extru-
der department employees employed by the Em-
ployer at its Summit, Mississippi, facility:
excluding all other employees, office clerical em-
ployees, professional employees, technical em-
ployees, salesmen, summer employees, the
president's son, guards, foremen and supervisors
as defined in the Act.
2. The certification
On August 17, 1978, a majority of the employees
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 15, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on September 15, 1978, 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 Respondents Refusal
Commencing on or about October 2, 1978, and at
all times thereafter, the Union has requested Respon-
dent 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 October 16, 1978, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
October 16, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal. Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5} and (I) of the
Act.
IV liE I- FFEC('T 0 1'HI. I NF IR LABOR PRACF ICES PON
(COMMERCE
The activities of Respondent set forth in section
Ill, above, occurring in connection with its opera-
tions described in section 1, above, have a close, inti-
mate, 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 commerce.
V. ILHE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and. if an understanding is reached.
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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 fMar-Jac Poultry Compar.v Inc., 136
NLRB 785 (1962); Commerce Company d/hb/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:
CON. I. SIONS OF LAW
1. Polyflex M Company 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, CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees. in-
POLYFLEX M COMPANY
_ . ......
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cluding quality control employees and the extruder
department employees employed by the Employer at
its Summit, Mississippi, facility; excluding all other
employees, office clerical employees, professional
employees, techenical employees, salesmen, summer
employees, the president's son, guards, foremen, 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 September 16, 1978, the above-named la-
bor 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 October 16, 1978, and
at all times thereafter, to bargain collectively with the
above-named organization as the exclusive bargain-
ing representative of all the employees of Respon-
dent in the appropriate unit, Respondent has en-
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
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 Re-
lations Board hereby orders that the Respondent, Po-
lyflex M Company, Summit, Mississippi, 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 con-
ditions of employment with United Paperworkers In-
ternational Union, AFL-CIO, CLC, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees in-
cluding quality control employees and the extru-
der department employees employed by the Em-
ployer at its Summit, Mississippi, facility;
excluding all other employees, office clerical em-
ployees, professional employees, technical em-
ployees, salesmen, summer employees, the
president's son, guards, foremen 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 its facility in Summit, Mississippi, cop-
ies of the attached notice marked "Appendix." Cop-
ies 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 Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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.
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
United Paperworkers International Union,
AFL-CIO, CLC, as the exclusive representative
of the employees in the bargaining unit de-
scribed 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 represen-
POLYFLEX M COMPANY 1157
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay. wag-
es, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees
including quality and control employees and
the extruder department employees employed
by the Employer at its Summit, Mississippi,
facility. excluding all other employees, office
clerical employees, professional employees,
technical employees, salesmen, summer em-
ployees, the president's son, guards, foremen
and supervisors as defined in the Act.
POIYFLEX M COMPANY