Keller Industries, Inc.

AMERICAN CARPET MILLS American Carpet Mills, Inc., a Division of Keller In- dustries, Inc. and Local 636, Upholsterers' Interna- tional Union of North America, AFL-CIO Case 10-CA-9934 August 15, 1973 DECISION AND ORDER 567 be granted, Respondent thereafter did not file a re- sponse to 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: By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on January 10, 1973, by Local 636, Upholsterers' International Union of North America, AFL-CIO, herein called the Union, and duly served on American Carpet Mills Inc., a Division of Keller Industries, Inc., herein called the Respon- dent, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 10, issued a complaint on February 20, 1973, 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 before an Adminis- trative 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 December 7, 1972, following a Board election in Case 10-RD-442, 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 December 22, 1972, and at all times there- after, Respondent has refused, and continues 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 March 2, 1973, and April 23, 1973, respectively, Re- spondent filed an answer and amended answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 1, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 7, 1973, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not 'Official notice is taken of the record in the representation proceeding, Case 10-RD-442, as the term "record" is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8 , as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA. 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969); Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA Ruling on the Motion for Summary Judgment In its answer and amended answer to the com- plaint, Respondent admits its refusal to bargain with the certified Union but disclaims a duty to bargain because of the invalidity of the certification resulting from improprieties in the conduct of the election brought about by the denial of the right to vote to certain employees included in the stipulated unit and by the counting of the ballot of a person who was not an employee of Respondent. We do not agree. The record in the underlying representation pro- ceeding indicates that in an election conducted on May 25, 1972, pursuant to a Stipulation for Certifica- tion Upon Consent Election, of approximately 90 eli- gible voters, 40 cast ballots for, and 39 against, the Union, and 11 ballots were challenged. No objections to the election were filed. After investigation, the Re- gional Director issued a Report on Challenged Ballots in which he recommended that challenges to the bal- lots of eight over-the-road truckdrivers and one other voter be sustained, that one challenge be overruled, and the resolution of one challenge be deferred pend- ing the outcome of an arbitration proceeding. Re- spondent filed timely exceptions to the Regional Director's report and a supporting brief in which it contended that over-the-road truckdrivers should have been included in the voting group despite the Regional Director's finding that they had historically been excluded from the bargaining unit and that dis- chargee Hindman, whose case was awaiting arbitra- tion, should not be deemed an eligible voter. On July 28, 1972, a board of arbitration ordered the reinstatement of the employee whose ballot had been challenged and not resolved. The Regional Director, on August 9, 1972, issued a Supplemental Report on Challenged Ballots in which he found that Hindman was an eligible voter and recommended that the two challenged ballots be counted and that a revised tally of ballots be issued. Thereafter, Respondent filed timely exceptions to the Regional Director's supple- mental report, together with a brief, contending that the Board should not defer in a representation case to an arbitration award when no unfair labor practice charges were pending and where the Regional Direc- tor had made no investigation of the arbitral award. 205 NLRB No. 56 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board, in a Decision and Order of November 22, 1972, incorporated the arbitrator's opinion and award in the record, adopted the findings and recom- mendations of the Regional Director in both his re- ports, and ordered that the two challenged ballots be opened and counted, that a revised tally of ballots be served on the parties, and that an appropriate certifi- cation be issued. Since the revised tally of ballots indicated that a majority of employees in the appro- priate unit had voted for the Union, the Regional Director, on December 7, 1972, issued a Certification of Representative. Since Respondent admits its refus- al to bargain, it appears that it is attempting here to relitigate issues previously determined in the underly- ing representation proceeding. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Florida corporation, maintains an office and place of business in Cartersville, Georgia, where it is engaged in the manufacture and sale of carpets. During the past calendar year, Respondent sold and shipped products valued in excess of $50,000 directly to customers located outside the State of Georgia. 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 effectu- ate the policies of the Act to assert jurisdiction herein. 2 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) II THE LABOR ORGANIZATION INVOLVED Local 636, Upholsterers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The Unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees including receiving and shipping employees and truckdrivers, but excluding all office clerical em- ployees, guards and/or watchmen, foremen, and all other supervisors as defined in the Act. 2. The certification On May 25, 1972, 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 10, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on December 7, 1972, 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 December 14, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about December 22, 1972, and continuing at all times thereafter to date, the 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 the Respondent has, since December 22, 1972, and at all times thereafter, refused 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 practic- es within the meaning of Section 8(a)(5) and (1) of the Act. AMERICAN CARPET MILLS C. The Unfair Labor Practice Strike Since the Respondent admits in its amended an- swer that its refusal to bargain caused and prolonged the strike which began on January 22, 1973, we also find that the strike was an unfair labor practice strike and we shall frame our remedial order accordingly. IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, 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 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 appropriate 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 select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. American Carpet Mills, Inc., a Division of Kel- ler Industries, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 636, Upholsterers' International Union of North 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 receiving and shipping employees and truck- 569 drivers, but excluding all office clerical employees, guards and/or watchmen, foremen, and all other su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 7, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 22, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent in the appropriate unit, Respondent has engaged 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)(1) 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 Rela- tions Board hereby orders that Respondent, Ameri- can Carpet Mills, Inc., a Division of Keller Industries, Inc., 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 condi- tions of employment with Local 636, Upholsterers' International Union of North America, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees including receiving and shipping employees and truckdrivers, but excluding all office clerical em- ployees, guards and/or watchmen, foremen, and all other 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 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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) Upon their unconditional application, offer strikers not heretofore reinstated immediate and full reinstatement to their former jobs or, if their fobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make whole for any loss of earnings strikers who have made themselves available for em- ployment on an unconditional basis, but who were refused reinstatement in the manner set forth in F. W Woolworth Company, 90 NLRB 289, with interest cal- culated as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility at Cartersville, Georgia, co- pies of the attached notice marked "Appendix." 3 Co- pies of said notice, on forms provided by the Regional Director for Region 10 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 notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. cerning rates of pay, wages, hours, and other terms and conditions of employment with Local 636, Upholsterers' International Union of North America, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed below. WE WILL NOT in any like or related manner in- terfere 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 representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, 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 receiving and shipping employees and truckdrivers, but excluding all office cleri- cal employees, guards and/or watchmen, fore- men, and all other supervisors as defined in the Act. WE WILL, upon their unconditional application, offer strikers not heretofore reinstated immediate and full reinstatement to their former jobs or, if theirjobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make whole for any loss of earnings strikers who have made themselves available for employment on an un- conditional basis, but who were refused rein- statement. AMERICAN CARPET MILLS, INC, A DIVISION OF KELLER INDUSTRIES, INC (Employer) 3 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 con- Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any question concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404- 526-5760.