Atlantic International Corp.

ATLANTIC INTERNATIONAL CORPORATION Atlantic International Corporation and its wholly- owned subsidiaries, Atlantic Manufacturing Corpo- ration and Atlantic International Marketing Corpo- ration and Carpenters' District Council of Balti- more and Vicinity and its affiliates, Cabinet Makers' Local No. 974, United Brotherhood of Car- penters and Joiners of America, AFL-CIO. Case 5- CA-8914 June 14, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on September 30, 1977, by Carpenters' District Council of Baltimore and Vicini- ty and its affiliates, Cabinet Makers' Local No. 974. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, and duly served on Atlantic International Corporation and its wholly-owned subsidiaries, Atlantic Manu- facturing Corporation and Atlantic International Marketing Corporation, herein called Respondent. the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint and notice of hearing on November 10. 1977, 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. Copies of the charge, complaint, and notice of hearing be- fore 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, 1977, following a Board election in Case 5-RC-9667, the Union was duly certified as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate;' and that, commencing on or about September 26, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is re- questing it to do so. Respondent answered the com- i Official notice is taken of the record in the representation proceeding, Case 5-RC-9667, as the term "record" is defined in Sees. 102.68 and 102.6 9 (g) of the Board's Rules and Regulations, Series 8 as amended. See TI' Elecirosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5. 1969); Interrype Co. v. Penello, 269 F.Supp 573 (D C.Va.. 1967)! Folleti Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (C A 7, 1968): Sec. 9(d) of the NLRA, as amended. plaint admitting in part, and denying in part, the alle- gations in the complaint. On January 11, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 18, 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 an answer to Show Cause Order.' 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 Respondent contends that the General Counsel's motion should be denied on the ground that the Board erred in overruling one of its objections to conduct affecting the election in Case 5-RC-9667. The General Counsel contends that Respondent is attempting to relitigate issues which were or could have been litigated in the underlying representation case. We agree with the General Counsel. The record herein, as well as that in Case 5-RC- 9667, reveals that on July 30, 1976, in an election conducted pursuant to a Stipulation for Certification Upon Consent Election. 199 ballots were cast for, and 165 ballots were cast against, the Union. There were 39 challenged ballots, a number sufficient to affect the results, and I void ballot. On April 8, 1977, the Board issued a Decision and Direction 3 in which it overruled two of Respondent's three objections, di- rected the Regional Director for Region 5 to open and count 17 challenged ballots and, in the event the revised tally determined the results of the election, directed a hearing on Respondent's remaining objec- tion. The revised tally determined the results of the election and on May 26, 1977. a hearing was held on Respondent's objection that union agents and sup- porters threatened employees who did not support the Union. Thereafter, the Hearing Officer issued her report in which she found that, although members of an in-plant organizing committee had made some threats, these employees were not agents of the Union, and that anv threats made did not warrant setting aside the election. Respondent excepted and on September 15, 1977, the Board adopted the Hear- ing Officer's findings and recommendations and cer- : Respondent's motion to file answer to Notice To Show Cause Order Instanter. which was unopposed, Is herebs granted. 228 NLRB 1308 (1977). 236 NLRB No. 94 903 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tified the Union. Respondent's defense to the alleged violations of Section 8(a)(5) and (I) is that the Board erred in ov- erruling its objection regarding threats made by members of the in-plant organizing committee. Spe- cifically, Respondent requests that the Board recon- sider its findings that those employees were not union agents and that the conduct involved did not warrant setting aside the election. 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. 4 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 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. Accordingly, we grant the Motion for Summary Judgment.' On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I1 THE BUSINESS OF RESPONDENT Respondent, Atlantic International Corporation and its wholly-owned subsidiaries, Atlantic Manu- facturing Corporation and Atlantic International Marketing Corporation. each a Maryland corpora- tion, is engaged in the sale, lease, manufacture, ser- vice, erection, and maintenance of office and special- ty trailers and modular buildings at locations in Baltimore, Maryland. During the preceding 12 months, a representative period, Respondent re- ceived gross revenues in excess of $500,000. During 'See Pittsburgh Plate (lu.as (o. v. ,L.R.B., 313 L'.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). In its answer to the complaint. Respondent admits that the Union re- quested negotiations and certain information. but denies that it refused the requests. However, attached to the General Counsel's motion are letters dated September 26, 1977, and October 27. 1977, respectively, in which Respondent refused to supply the requested information and to negotiate. Neither these letters, nor their import, are controverted by Respondent in its answer to Show Cause Order. Accordingly, we shall deem the allegations that Respondent refused the union requests for information and negotia- tions to be true and Respondent's denials thereof are stricken. Schuar:. Brothers Inc. 194 NLRB 150 (1971): The May Department Stores (omrpanr 186 NLRB 86 (1970). the same period, Respondent purchased and re- ceived, in interstate commerce, materials and sup- plies valued in excess of $50,000 from points outside the State of Maryland. 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 juris- diction herein. 11. THE LABOR ORGANIZATION INVOLVED Carpenters' District Council of Baltimore and Vi- cinity and its affiliates, Cabinet Makers' Local No. 974, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 11. 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 production and maintenance employees in- cluding draftsmen, warehouse employees, ser- vice employees, drivers and plant clerical em- ployees employed by the Employers at their Baltimore, Maryland, locations, and excluding all office clerical employees, salesmen, profes- sional employees, guards and supervisors as de- fined in the Act. 2. The certification On July 30, 1976, 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 5, 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 on September 15, 1977, 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 Respondent's Refusal Commencing on or about September 20, 1977, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- 904 ATLANTIC INTERNATIONAL CORPORATION sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about September 26, 1977, 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 collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since September 26, 1977, 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 (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRA( TICES UPON COMMERCE The activities of Respondent set forth in section III, 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. THE 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 Mar-Jac Poultry CompanY. Inc., 136 NLRB 785 (1962); Commerce Company d/h/a La- mar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964): Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CON( I :SIONS OF LAW 1. Atlantic International Corporation and its wholly-owned subsidiaries, Atlantic Manufacturing Corporation and Atlantic International Marketing Corporation. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Carpenters' District Council of Baltimore and Vicinits and its affiliates, Cabinet Makers' Local No. 974, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees in- cluding draftsmen, warehouse employees, service employees, drivers and plant clerical employees em- ployed by the Employers at their Baltimore, Mary- land, locations, and excluding all office clerical em- ployees, salesmen, professional employees, 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 15, 1977. 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 September 26, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employees of 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. Bv 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)(I) 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, At- lantic International Corporation and its wholly- 905 DECISIONS OF NATIONAL LABOR RELATIONS BOARD owned subsidiaries, Atlantic Manufacturing Corpo- ration and Atlantic International Marketing Corporation, Baltimore, Maryland, 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 Carpenters' District Council of Baltimore and Vicinity and its affiliates, Cabinet Makers' Local No. 974, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees in- cluding draftsmen, warehouse employees, ser- vice employees, drivers and plant clerical em- ployees employed by the Employers at their Baltimore, Maryland, locations, and exluding all office clerical employees, salesmen, professional employees, 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Baltimore, Maryland, locations cop- ies of the attached notice marked "Appendix." 6 Cop- ies of said notice, on forms provided by the Regional Director for Region 5, 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 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Car- penters' District Council of Baltimore and Vi- cinity and its affiliates, Cabinet Makers' Local No. 974, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described 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- 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 employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees including draftsmen, warehouse employees, service employees, drivers and plant clerical employees employed by the Employers at their Baltimore, Maryland, locations, and ex- cluding all office clerical employees, sales- men, professional employees, guards and sup- ervisors as defined in the Act. ATLANTIC INTERNATIONAL CORPORATION AND ITS WHOLLY-OWNED SUBSIDIARIES, ATLANTIC MANUFACTURING CORPORATION AND ATLANTIC INTERNATIONAL MARKETING COR- PORATION 6 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." 906