Great Lakes Chemical Corp., 1024 (1990)

Great Lakes Chemical Corporation and Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 3-724. Case 10-CA-24463

December 28, 1990

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS

CRACRAFT AND OVIATT

On December 28, 1989, the General Counsel of the National Labor Relations Board issued a complaint alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union's request to bargain and by unilaterally laying off employees without notification to and bargaining with the Union. The Respondent filed its answer admitting in part and denying in part the allegations in the complaint.

On June 28, 1990, the General Counsel filed a Motion for Summary Judgment. On June 29, 1990, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Ruling on Motion for Summary Judgment

In its answer the Respondent admits its refusal to bargain and its unilateral layoff of five employees, but denies it engaged in any unlawful conduct. Specifically, the Respondent denies: (1) that the unit specified in the complaint constitutes a unit appropriate for collective bargaining; (2) that it is a successor employer to Syntex Chemicals, Inc., as found in Great Lakes Chemical Corp., 298 NLRB 615 (1990) (Great Lakes I); (3) that Syntex maintained a facility in Newport, Tennessee, until about June 1, 1984, where it was engaged in the production of chemical products; (4) that on June 1, 1984, the Respondent assumed the chemical production facility previously operated by Syntex and began performing operations previously performed by Syntex, using equipment formerly used by Syntex, engaging in substantially the same business of operating a chemical production facility, and employing substantially the same supervisors as formerly employed by Syntex; (5) that the former Syntex employees, who the Respondent admits compose a majority of the Respondent's employees, compose that majority in a unit appropriate for collective bargaining; and (6) that the Union has been, and is, the representative of a majority of the employees in the appropriate collective-bargaining unit for purposes of collective bargaining and

is their exclusive representative pursuant to Section 9(a) of the Act.1

In the Motion for Summary Judgment, the General Counsel submits that the Respondent has conceded its refusal to bargain and unilateral layoff of five employees on October 6, 7, and 8, 1989, and that the Respondent's defense essentially arises from its denial of a duty to bargain with the Union. This defense, the General Counsel contends, has been previously raised and rejected in the Board's prior decision in Great Lakes I, involving the same parties. Great Lakes I made specific factual findings that, according to the General Counsel, collaterally estop the Respondent from asserting any contrary facts here and provide a complete basis for the Board to resolve the 8(a)(5) and

(1) issues, so that there are no genuine issues of material fact requiring an evidentiary hearing before an administrative law judge. We agree.

Great Lakes I involved allegations of 8(a)(1), (3),

(4), and (5) violations by the Respondent. The Board adopted the administrative law judge's findings, inter alia, that the Respondent, as a joint employer with C & N General Services, Inc., violated Section 8(a)(5) by refusing to bargain with the Union as a successor to Arapahoe Chemicals, a division of Syntex Chemicals, Inc., as of April 26, 1985.

With respect to the General Counsel's motion, a review of the complaint allegations, the Respondent's answer, and the Board's prior decision in Great Lakes I reveal that that decision made factual findings that address and contradict each of the points the Respond-ent's answer attempts to place at issue. Specifically, contrary to the Respondent's denials concerning Syntex, the Board has found that: (1) Syntex owned and operated the Newport, Tennessee plant before the Respondent purchased it in June 1984; (2) the Respondent used the same plant and equipment and employed the same supervisors and employees as Syntex;

(3) the Union achieved majority status based on the number of former Syntex employees it hired by April 26, 1985, at which time the Respondent employed a representative complement of employees and the plant was fully operational; and (4) there were no differences in the Respondent's and Syntex's chemical production that were significant enough to affect the employees' representational desires. Finally, contrary to the Respondent's present denials of allegations relating to the unit and its obligation to bargain, the Board

1 The complaint alleges that about February 11, 1985, and thereafter, the Union requested the Respondent to bargain collectively with the Union as the exclusive bargaining representative of all employees in the appropriate bargaining unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and that the Respondent refused on February 19, 1985, and thereafter. In its answer, the Respondent admits that the Union ''demanded recognition of certain employees at its Newport, Tennessee facility'' on February 11 and December 9, 1985, and that it ''declined the Union's demand for recognition'' about February 19, 1985, and February 3, 1986, and denies these allegations in all other respects.

in Great Lakes I adopted the judge's findings that after Syntex purchased the Newport plant in 1974-and indeed before the purchase-successive collective-bargaining agreements, including the latest one dated April 4, 1983, to April 4, 1986, have covered employees in the following unit:

All production and maintenance employees, laboratory technicians, environmental technicians and instrument technicians employed by the Employer at its Newport, Tennessee facility, but excluding all office clerical employees, professional employees, technical employees including development technicians, guards and supervisors as defined in the Act.2

These controlling findings establish beyond dispute in the instant case that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union. The Board's findings in Great Lakes I-in conjunction with the Respondent's admissions that it unilaterally laid off employees Tommy McGaha and Gary Watts on October 6, employees Larry Rines and Eugene Lawson on October 7, and employee Bartley Thornton on October 8, 1989, without notification to and bargaining with the Union-also...