South Pacific Furniture, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD South Pacific Furniture, Inc. and International Long- shoremen's and Warehousemen's Union, Local 142. Case 37-CA-1485 March 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on August 8, 1978,' by Inter- national Longshoremen's and Warehousemen's Union, Local 142, herein called the Union, and duly served on South Pacific Furniture, Inc., herein called Respondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 20, issued a complaint on September 14, 1978, 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 Na- tional Labor Relations Act, as amended. Copies of the charges, 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 com- plaint alleges in substance that on April 19, 1978, fol- lowing a Board election in Case 37-RC-2384, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate2 and that, commencing on or about May 16, 1978, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On September 25, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admits that it meets the Board's jurisdictional standards and that the Union is a labor organization within the meaning of the Act. Respondent denies that a fair and impartial election was conducted on December 23, 1977, and that the Union was properly certified. Respondent denies that it is under any lawful obliga- tion to provide the Union with the requested informa- tion and material. Respondent admits the allegation that it refused, and continues to refuse, to meet and A first amended charge was filed by the Union on September 8, 1978. 2 Official notice is taken of the record in the representation proceeding, Case 37-RC-2384. as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See LTV Elecirosystems, 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); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. bargain with the Union as the collective-bargaining representative, but denies the conclusory 8(a)(5) and (1) allegations. Respondent alleges that the Board's failure and refusal to afford it a fair and impartial hearing on the alleged misconduct of the Union were improper as a matter of law and that therefore the complaint should be dismissed. On November 8, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 28, 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 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 attacks the Union's certification on the basis of certain preelec- tion conduct by the Union which Respondent alleges improperly influenced the results of the election.' Re- spondent further contends that the changed circum- stances since the Board's certification require a hear- ing.4 Review of the record herein reveals that in Case 37-RC-2384 the petition was filed by the Union on October 4, 1977. On November 14, 1977, a Stipula- tion for Certification Upon Consent Election was ap- proved by the Acting Regional Director, and the elec- tion was conducted on December 23, 1977. On December 28, 1977, Respondent filed timely objec- tions to the election, which the Regional Director overruled in their entirety on January 25, 1978. Pur- suant to timely exceptions to the Regional Director's report on objections, on April 19, 1978, the Board More particularly, Respondent alleges that the Union engaged in im- proper electioneering when its observer stated, "Come on and vote, exercise your power," after the polls had opened. The Regional Director concluded that the statement did not constitute electioneering, and the Board agreed, citing General Shoe Corporation, 77 NLRB 124 (1948). and Milchem Inc., 170 NLRB 362 (1968). 4 Respondent states that "[slince the date of the Board's decision in the underlying representation case, substantial changes have occurred with re- spect to [its] operations." Respondent alleges that, for economic reasons, it was forced to relocate its operations to a new facility which lacks the essen- tial equipment and sources needed to continue its operations at the same scale. As a result, Respondent alleges it was forced to lay off all of its em- ployees except one and it is uncertain as to when they will be recalled. Respondent contends that these changed circumstances require that a hear- ing be conducted to determine the validity of the Board's certification and Respondent's bligation to bargain. 241 NLRB No. 89 488 SOUTH PACIFIC FURNITURE, INC. issued a Decision and Certification of Representative (not published in bound volumes), in which it adopted the Regional Director's findings and recom- mendations and certified the Union as the exclusive bargaining representative of the employees in the ap- propriate unit.5 On or about May 16, 1978, the Union requested Respondent to bargain with the Union as the exclu- sive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employ- ment. On or about May 16, 1978, and thereafter, Re- spondent refused, and has continued to refuse, to bargain collectively with the Union as the exclusive representative of all the employees in the appropriate unit. 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 relitigate issues which were or could have been litigated in a prior representation proceeding.6 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 unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment.7 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Hawaii corporation with its princi- pal office located at Ewa Beach, Hawaii, has been, at all times material herein, engaged in the business of manufacturing of furniture on the island of Oahu. In overruling Respondent's objections, the Board necessarily found that there were no issues of fact or law warranting a hearing. 6 See Pittsburgh Plate 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). 'Since the new building is in the same geographical area as the old one and the "substantial changes" alleged by Respondent did not materially affect the community of interest of the unit, we find the unit is appropriate for bargaining purposes. See The Ritling Corporation, 203 NLRB 355 (1973). We also note that Respondent's president, Henry Au Hoy, admits in his affidavit that Respondent plans to rehire its laid-off employees, and, accord- ingly, we find that Respondent has not permanently eliminated the bargain- ing unit. Cf. Sylvania Electric Products, Inc., 122 Nl RB 201 (1958). During the past calendar year, Respondent sold and shipped goods valued in excess of $50,000 to points located outside the State of Hawaii. During the same 12 months, Respondent purchased and received goods and materials valued in excess of $50,000 from points and places located outside the State of Hawaii. 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. 11. THE LABOR ORGANIZATION INVOLVED International Longshoremen's and Warehouse- men's Union, Local 142, is a labor organization within the meaning of Section 2(5) of the Act. II11. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. 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 employees of the Employer employed at its Ewa Beach, Hawaii location: excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On December 23, 1977, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 20, 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 April 19, 1978, 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 May 16, 1978, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of all the employees in the above-described unit. Commencing on or about May 16, 1978, and continuing at all times thereafter 489 1)1( ISI()NS ()I NAItI()NAI I.()BOR RI.A I IONS B()ARI) to date, Respondent has refused, and conti nues to re- fuse, to recognize and bargain with thie Ulnion as tile exclusive representative for collective hargainin ot all employees in said unit. Accordingly, we find that Respondent has. since May 16. 1978, and at all times thereafor, refused to bargain collectively with the l;ion as the exclusive representative of' the employees in the appropriate unit and that, hby such ref'usal, Respondent has en- gaged in and is engaging in unfair labor practices within the neaning g of Section 8(a)(5) and (I) of the Act. We fuirther ind that. h reft'sirig to fulrnish tile Union with requested data and intrimation pertain- ing to rates of pay, wages, hours and thel ternis alld conditions of employment of unit employees, Respon- dent has engaged in alnd is engaging in untfair labor practices within the meaniing of' Section 8(a)( I ) and (5) of the Act. IV. ill il It (l O IIIL. NIAIR ABOR PRA( I ( S I PON (()NIMIFR( The activities of Respondent set ftorth in section III, above, occurring in connection with its operations described in section 1, above, have a close. intiliate. and substantial relationship to trade, traffic, aid comn- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. TIMt RI xtMt)Y llaving 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 Poultr ('onmpatnv, Inc.. 136 NLRB 785 (1962): C'omerce (ortpatyl d/h/a .inlar Hotel, 140 NLRB 226. 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnten Construction Cormpany, 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: C ()N( I SI ()NS () lxwA I. South 'acific Furniture. Inc., is an employer en- gaged in commerce xwithin the meaning oft' Section 2(6) and (7) of the Act. 2. I nternational I ongshiornienll's anid Warehouse- men's lUnion Iocal 142, is a labor organization within the micaling of Section 25) of' the Act. 3. AII employees of the nimploer employed at its E'iwa Beach. [laxvaii. location, excluding all office clerical employees. prolessional employees, guards and supervisors as defined in the Act, constitute a unit appropriate lor the purposes of collective bar- gaining within the meaning otf Section 9(b) of the Act. 4. Since April 19, 1978. the above-named labor or- ganizationI has been a;id now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit ftor the purpose of collective bargaining within the meaninig of Section 9(a) of the Act . 5. By refusinig on or about May 16, 1978, and at all times thereafter, to bargain collectively with the above-narmed labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit. Respondent has en- gaged in and is engaging in untfir labor practices within the meaning of Section 8(a)(5) of the Act. 6. By refusing to furnish the Union with requested data and information pertaining to rates of pay. wages, hours, and other terms and conditions of em- ployment of unit ernploees. Respondent has engaged in and is engaging in unf'ir labor practices within the meaning of' Section 8a)(5) of the Act. 7. By the atoresaid reftisal to bargain. Respondent has interfered with, restrained, and coerced, and is intelrferilig with, restraininig, and coercing. employees in the exercise of' the rights guaranteed to them in Section 7 of the Act and thereby has engaged in and is engaging in uitair labor practices within the mean- ing of Section 8a)( I ) of the Act. 8. The aoresaid unfailr labor practices are unfair labor practices affecting commnierce within the mean- ing of' Section 2(6) and (7) of' the Act. ORDER Pursuant to Section IO(c) of' the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, South Pacific Furniture. Inc.. Ewa Beach, Hawaii, its officers, agents, successors, and assigns, shall: 1. ('ease and desist from: (a) Refusing to bargain collectively concerning rates of pay. wages, hours, and other terms and con- ditions of employment ith International Longshore- men's and Warehousemen's Union, Local 142, as the 490 S(t I i '\(t t( I R I i1\( excltlsivJ hargiilillg rprlesenlttixte of ils cplloNes in tie tflloxvinlg alpproprialte unit: A\ll Cilplo,,cc, of1 tlhc I1ploc1 N 1l c hil cd at ils lksa eaci . ,a\\kani locartion: e\tixclug all office clerical ei ploN\es prtcsss. lossi l cIiplo\ C\s. guards ;Ills irs s detlined in tlh Act. (h) Refusing to turnish the aIho,\c-llanld labor or- gallilZatioll ith data and intormatlllion pertainin to rates of pa\ wages. hours. and other teIms and on- ditions of enmplo.mit lt tile ciiploxcs in tilh aorc- said hargaining nit11. (c) In a like or related mann;er. interterin.ig itl rcstlaining, orl coolill CillploSccs i te C\Crcis o' the rights guaranteed them in Sectionl 7 of the Act. 2. l';ake tile fotllo\vinei affirmiatixe action, \ hich the Board finds \kill etfectuate the policies of the Act: (a) Upon request bargain \itlh thle abo,,c-nanCdl labor organization as the exclusive lrepresetnt;ativCe of all elmplorees in the atoresaid appropi;ate unit with respect to rates of' pa. wages, hours, and other terlms and conditions of cimplor llent ad, it'll Iunderstand- ing is reached, enibod sIuch unitderstaniling in signed agreemlent. (h) urnish the ahbov-c-nallld labor orilani/atlon with the requested data ;nd inf;,mationi pertaiining to rates of pa, . waiges. hourl,. land oilrll ternis and con- ditions of' cnplo nimcnl ot the employees in the afre- said bargaining unit. (c) Post at its l'a Beach. Hawaii place of' busi- ness copies of the attached notice niarked -Xppen- dix."'' (Copies of' said notice. on tormiis provided hb the Regional Director fbr Region 20, afier bhei ig dul! signed hy Respondent's repre.entIatixc, shall be posted h\ Respondent iniedlialtelN upon receipt thereof, and he maintained bh it for 6(( consecutive da\s thereafter, in conspicuous places includilin all places here notices to emploees are customaril\ posted. Reasonable steps shall he taken bh Respon- 1) tI ( Ci C ltI t hi t i tIIs I (r I i s rI itci [ t I l 1Cl ( L ill It I LraltOi Stets (' irlt ol Ap ls the wd HI te 1oli-. I jetld. 1 2i i ',*le td ()rdel the Nalion.al I ihbl Re.htiolns Board" shlil rd ' sted Piurtlit .I Jdgaillent I the I iled State ( Olil A iins l i lnlnf .nn .tL/ ()rel el the Nallo il labl Relatiins B-ld dent to insur e that said notices are not altered de- taced. or covered bh ally other material. (d) Notil't the Retional [)irector fr Region 2(1, in writing. \\ thill 2() dals roml the date of' this Order, \ halt step,, h1ve been tken to (com1pl herecxith. AlPIN I)IX \(II I]' lS l ) oYIIS P(sI I-I) 1' ()RD R (iI III NAII(N,\I l AI(IR R I IlIONS B)\RI) A\i Agcen) o' the iinitted States ( olvr irnlen t Wi \xill t No refuse to aruain collectivel\ concerning rates otf pas, \rIages hours, and other terms andl conditions of employment uith Inter- national [ ongshoremen's and Warehousemen's I nion. l.ocal 142. as the exclusive representative of the emnployees in the bargaining unit described below. WI- \vit 1 NIt i 1ann like or related manner inlterfeire with, restrain. or coerce tour employees in the exercise of the rights guaranteed them bh Section 7 of' the Act. WI' \x II I urnish the abhove-named I lion with the data and ino1rmation it requested pertaining to rates of pa;i, wages, hours. and other terms and conditions of eriploN ment of the employees in the bargaining unit described below. Wi'' ti, upon request, bargain with the above-nla med I iionl. as the exclusive representa- tixe oft all emploNees in the bargaining unit de- scribed elox,. ith respect to rates of pas. x\ ages. hours. aind other terms andl conditions of emnlo\nientl aind, if an understanding is reached. Cmbndl \ such Ulnderstanding in a signed agree- mei. 1 lhe bargaining unit is: AII cmplo cs of the Emploer eniploNed at its 1\% a Beach, l la\ aii location: excluding all of- fice clerical enmplo\ees proftessional emplo)- cs., guards anid superisors as defined in the Act. So()t 111ii I \(11I( I[t RNItR I(. 491