Circle A & W Products Co.

I)ti('ISIONS OF NAlIONAI. IABOR RIl .AI()NS BO()ARI) Circle A & W Products (ompany and Warehouse- men's Union Local No. 206, International Brother- hood of Teamsters, Chauffeurs, Warehousemenle & Helpers of America. ('ase 36 (A 3380 July 12, 1979 D[ECISION AN[) ORI)ER BY CHAIRMAN FANNING ANI) M slMliRS J NKINS AND) PENI.I .1( Upon a charge filed on December 14. 1978. by Warehousemen's Union ocal No. 206, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Union, and duly served on Circle A & W Products Company herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 19. issued a complaint' on January 24, 1979, and on February 5, 1979, issued an Erratum to the complaint 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, itas amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge and er- ratum to the complaint, were duly served on the par- ties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on September 6, 1978, following a Board election in Case 36 RC-4046, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employ- eees in the unit found appropriate: 2 and that. com- I Answering par. 2 of the complaint, Respondent denies the allegation that it is a California corporation and avers that it was ,old in late 1978 and that since then it has operated as a subsidiary of another unnamed) corporation. Respondent admits, however, the remainder of par. 2. -Ihereby Respondent admits that it is engaged in the manufacture and distribution of electrical equipment in several States of the United States, including the State of Ore- gon, and that during the past year it has sold and shipped from its Portland. Oregon, facility to points outside the State of Oregon products valued In excess of $50,000. Answering par. 3 of the complaint, Respondent denies the conclusionary allegation that it was engaged in commerce but doe, so based solely on its answer to par. 2. In its opposition. Respondent reiterates its assertion that it s incorrectlx identified in the complaint" but fails and declines to furnish any further details or infoirmation concerning such asserted misidentificalion. In ains event, we note that Respondent has admitted sufficient evidentiary lacts to establish the allegation of par. 3 of the complaint that it is an employer within the meaning of Sec. 2(2) of the Act engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and we so find. We also note that the Board's Order herein shall issue against the named Respondent, including its successors and assigns, if an). 2Official notice is taken of, the record in the representation proceeding. Case 36 RC 4046, as the term "record" is defined in Secs 102.68 and 102.69(g) of the Board's Rules and Regilations. Series 8, ais mended. See LTV Eleciro tem.s, In(., 166 NI RB 938 (19671. enlfd 388 .2d 683 (4th Cir. mencing on or about November 15, 1978, and at all times thereafter, and particularly by letter dated No- vember 15, 1978, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Ulnion as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 26. 1979. Respondent filed its answer to the complaint admitting in part, and deny- ing in part. the allegations in the complaint. Respondent asserted four affirmative detenses in its answers in support of its general defense that the cer- tification was invalid: (I) The election was invalid be- cause of the existence of a valid contract bar: (2) Re- spondent has a valid continuing collective-bargaining agreement with another labor organization: (3) dis- criminatory alleged withdrawal of representation by another labor organization because Respondent's em- ployees exercised Section 7 rights precludes the possi- bility of Respondent having violated the Act; (4) Re- spondent was prejudiced by the Board's refusal to investigate charges filed against the labor organiza- tion that formerly represented its employees and by the dismissal of the charges before Respondent was given an opportunity to present evidence. On March 8, 1979. counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with appendixes attached. The General Counsel maintains that each of Respondent's asserted four affirmative defenses in support of its general de- fense that the certification was invalid was fully con- sidered by the Regional l)irector and the Board in Case 36 RC 4046, and that there are no issues of fact or law requiring a hearing in this proceeding. Subse- quently, on March 19, 1979, the Board issued an or- der 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. Respondent thereafter filed a memorandum in opposition to the Motion for Summary Judgment. 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 opposition, Respondent concedes that it has refused to bargain with the Union but urges that its refusal is justified as a matter of law. Respondent 1968): (;olden A4g Betverage (r . 167 NI.RB 151 (19671. enld. 415 1-.2d 26 (5th (Cir. 1969): IrntrOpc (Co, s PInllo, 269 I Supp 573 I).(D ' Va. 1967): ,to/lll ( ,rp. 164 NI.RB 378 (1967). enid. 397 :.2d 91 (7th (ir. 1968): Sec. 9(d) Al the NI.RA. as amended 243 NLRB No. 80 434 CIRCI.L A & W PRODUCIS COMPANY maintains that the election and certification are in- valid because of a presence of a valid contract bar. as alleged in its four affirmative defenses. Accordingiy, it is Respondent's view that it is not required to bargain with the certified Union. 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.3 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 previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this labor practice proceeding. Ac- cordingly, we grant the Motion for Summary Judg- ment. On the basis of the entire record. the Board makes the following: FINDINGS O FA('I' 1. THE BUSIFNESS OF RSPONDLNI' Respondent 4 is engaged in the manufacture and distribution of electrical equipment in several States of the United States, including the State of Oregon. During the past year Respondent sold and shipped from its Portland, Oregon, facility to points outside the State of Oregon products valued in excess of $50,000. We find, on the basis of the foregoing, that Respon- dent 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 Warehousemen's Union Local No. 206, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. ISee Pittsburgh Plate Glass Co. v. N.LRRB. 313 U.S 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4 As noted in fn. I of this Decision. III. 1IE UNFAIR L.ABOR PRA('II('ES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate f)r collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees employed by Circle A & W Prod- ucts Company at its Portland, Oregon, facilit, but excluding office clerical employees, sales- persons, professional employees, independent contractors, guards and supervisors as defined in the Act. 2. The certification On August 4. 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 19, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on September 6, 1978. and the Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request 7o Bargain an(d Resvpontnt ' Re/i.sal Commencing on or about November 2 and 29, 1978, and at all times thereafter. the Union has re- quested 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 November 15, 1978, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bar- gain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 15, 1978, 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, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFE('T OF THE UNFAIR I.ABOR PRACI('ES UPON COMMER(CE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, 435 I)It('ISI()NS OF NAIO()NAI. IABOR RIL.ATI()NS BOARI) and substantial relationship to trade. traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of' commerce. V. inE RFMF[I)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (I) 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 commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Pouhy C(ompatln, Inc., 136 NL RB 785 (1962): Commerce Companty dh/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnelt (Con- struction Companv, 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: CONC(IUSIONS OF LAW 1. Circle A & W Products Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehousemen's Union Local No. 206, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All employees employed by Circle A & W Prod- ucts Company at its Portland, Oregon, facility, but excluding office clerical employees, salespersons, pro- fessional employees, independent contractors, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since September 6, 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 November 15, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- elusive bargaining representative of all the employees oft 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 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)( 1 ) of' the Act. 7. The aforesaid unfair labor practices are unfair labor practices aflecting 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 Rela- tions Board hereby orders that the Respondent. (Cir- cle A & W Products Company, Portland, Oregon, 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 Warehousemen's Union Local No. 206, International Brotherhood of' Team- sters. Chautfiurs. Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by C'ircle A & W Prod- ucts Company at its Portland, Oregon, facility, but excluding office clerical employees, sales- persons. professional employees, independent contractors, 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Portland, Oregon, facility copies of the attached notice marked "Appendix."' Copies of 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 abor 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." 436 ('IR( I I A & ' PRO()I)t;( S (O()MPANY said notice, on forms provided by the Regional Direc- tor for Region 19. after being duly signed bh Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and he maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19. in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. APPENDIX Not l( To EPI.OYIitS PosTIIt) BY ORD)IR ()1 1t NAIIONAL. LABOR Ri AII()NS BOARI) An Agency of the United States Government WI: WILL NO] refuse to bargain collectively concerning rates of pay. wages, hours. and other terms and conditions of employment with Ware- housemen's Union l.ocal No. 206. International Brotherhood of leamsters, (haufleurs Ware- housemen & Helpers of America. as the exclu- sive representative of the employees in the bar- gaining unit described below. Wi \111 NOi I in anll like or related mancer intertcre with, restrain or coerce our elployees in the exercise o the rights guaranteed them hb Section 7 of' the Act. Wi wit . upon request. bargain with the above-natmed ion, as the exclusivc represenla- tive of all emplosees in the hargaining lnit de- scribed helow, with respect to rates of' pa, wages, hours, and othier terms and condilions of) employment, Iand. if' an uLLndcrsta ding is reached. embod\ such understanding in a signed agreement. TIhe bargaining unit is: All employees employed hb Circle A & W Prod- ucts C(ompany at its Portlanid ()regon. l'acilit, bhut excluding office clerical emplo:ees. sales- persons. prolessional emplo ees independent contractors, guards and supervisors as defined in the Act. CIR I A & W 'R(I)I ( Is (' ()MIPAN 437