Coronet Industries, Inc.

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coronet-Western, a Division of Coronet Industries, Inc. and Van Storage Drivers, Packers, Warehouse- men & Helpers Local 389, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 21-CA-12488 July 23, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on March 4, 1974, by Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Coronet- Western, a Division of Coronet Industries, Inc., here- in called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 21, issued a complaint on March 22, 1974, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac tices affecting commerce within the meaning of Sec- tion 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 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 November 20, 1973, following a Board election in Case 21-RC- 12872 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 February 4, 1974, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, al- though the Union has requested,and is requesting it to do so. On March 26, 1974, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. On April 15, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 26, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Official notice is taken of the record in the representation proceeding, Case 21-RC-12872 as the term "record" is defined in Secs 102 68 and 102.69(1) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F 2d 683 (C.A 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 Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response 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: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, the Respondent contends that its objections to the election in the underlying repre- sentation case were erroneously overruled and, ac- cordingly, a new election should be directed. Review of the record herein, including the record in Case 21-RC-12872, reveals an election conducted pursuant to a stipulation for Certification Upon Con- sent Election on March 29, 1973, which resulted in a 97 to 79 vote in favor of the Union, with I challenged ballot. Respondent filed timely objections to conduct affecting the results of the election, alleging in sub- stance that the Union had distributed copies of the National Labor Relations Board's Notice which re- flected the recommended Order of an Administrative Law Judge in a proceeding involving alleged unfair labor practices by Respondent, which was then being considered by the Board upon Respondent's excep- tions. Respondent contended that as a result of this conduct, the Union had misrepresented a material fact because the notice represented only a recom- mended Order of the Administrative Law Judge, thus was not a final order of the Board. In addition, Re- spondent argued that the Union, by distributing the notice, had abused Board processes by giving the im- pression that in some way the Board favored the Union in the upcoming election. Following investigation, the Regional Director is- sued his Report on Objections on May 9, 1973, find- ing that the notice was an accurate reproduction of the Administrative Law Judge's recommended notice and that the notice was a public document resulting from a public trial, thus was available to employees to ascertain its conditional nature. With regard to the objection concerning the abuse of Board processes, the Regional Director determined that, on balance, the conduct was not prejudicial in view of the notice being an accurate reproduction of the original. Ac- cordingly, the Regional Director recommended that the Respondent's objections be overruled and the Union be certified. The Respondent filed timely exceptions with the Board, basically reasserting its position and assigning 212 NLRB No. 70 CORONET-WESTERN 525 error to the Regional Director for failing to find that the notice circulated was not an accurate reproduc- tion of the original. After full consideration, the Board issued a Decision and Certification on Novem- ber 20, 1973, adopting the findings, conclusions, and recommendations of the Regional Director and certi- fying the Union. - It thus appears that the Respondent is attempting to relitigate issues raised and fully litigated in the underlying representation case. 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. Respondent relies on two recent decisions, Dubie- Clark Co., Incorporated, 209 NLRB 217 (1974), and Natter Manufacturing Corporation,, 210 NLRB 118 (1974), in support of its contentions. We find this reliance misplaced, as those cases dealt with affirma- tive misrepresentations by respondents regarding the adjudicatory effect of settlements, rather than the dis- tribution of an accurate reproduction of an Adminis- trative Law Judge's notice, a public document, with no partisan message attached. Respondent not having raised any properly litiga- ble issue in this proceeding, we accordingly grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT ships goods valued in excess of $50,000 directly to customers located outside the State of California. 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. II. THE LABOR ORGANIZATION INVOLVED Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III THE 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, shipping and receiving employees, warehouse- men and truck drivers employed by Respondent at its facility at 6913 East Acco Street, Los Ange- les, California; excluding all other employees, of- fice clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On March 29, 1973, 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 21 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 November 20, 1973, and the Union continues to be such exclusive, representative within the meaning of Section 9(a) of the Act. Respondent, a Georgia corporation, is engaged in the manufacture of carpets at a facility in Los Ange- les, California, at which it annually purchases goods valued in excess of $50,000 directly from points locat- ed outside the State of California. It also sells and 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) The Request To Bargain and Respondent's Refusal Commencing on or about January 19, 1974, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on or about February 4, 1974, 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 February 4, 1974, 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 (I) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES 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 dis- putes 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 (1962); Commerce Company d/b/a/ Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964, cert. denied 379 U.S. 817 (1964); Burnett Con- struction 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: CONCLUSIONS OF LAW 1. Coronet-Western, a Division of Coronet Indus- tries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, shipping and receiving employees, warehousemen and truck drivers employed by Respondent at its fa- cility at 6913 East Acco Street, Los Angeles, Califor- nia; excluding all other employees, office clerical employees, professional employees, guards and super- visors as defined in the Act constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 20, 1973, the above-named la- bor 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 February 4, 1974, 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing 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, Coronet- Western, a Division of Coronet Industries, Inc:, Los Angeles, California, its officers, agents, successors, and assigns, shall: . CORONET-WESTERN 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 Van Storage Drivers, Pack- ers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, shipping and receiving employees, warehouse- men and truck drivers employed by Respondent at its facility at 6913 East Acco Street, Los Ange- les, California; excluding all other employees, of- fice clerical employees, 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 facility at 6913 East Acco Street, Los Angeles, California, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 21 after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 527 WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, as the exclusive representative of the employees in the bargaining unit described 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 representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, shipping and receiving employees, warehouse- men and truck drivers employed by Respon- dent at its facility at 6913 East Acco Street, Los Angeles, California; excluding all other em- ployees, office clerical employees, professional employees, guards and supervisors as defined in the Act. CORONET-WESTERN, A DIVI- SION OF CORONET INDUS- TRIES, INC (Employer) 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 questions concerning this notice or compli- 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cance with its provisions may be directed to the South Broadway, Los Angeles, California 90014, Board's Office, Eastern Columbia Building, 849 Telephone 213-688-5200.