Miramar Of California

MIRAMAR OF CALIFORNIA Miramar of California, Inc. and Hospital & Service Employees Union, Local 399, Service Employees International Union, AFL-CIO. Case 21-CA- 15905 December 7, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on July 29, 1977, by Hospital & Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on Miramar of California, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on August 4, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 23, 1977, following a Board election in Case 21-RC- 14848 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; t and that, commencing on or about June 22, 1977, and at all times thereafter, Respondent has refused, and con- tinues 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. Subsequently, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and submitting affirmative defenses. The Respondent admits all of the factual allegations of the complaint, except those paragraphs which relate to the underlying represen- tation proceeding, Case 21-RC-14848. I Official notice is taken of the record in the representation proceeding, Case 21-RC-14848, as the term "record" is defined in Secs. 102.68 and 102.69() of the Board's Rules and Regulations. Series 8, as amended. See LTV Electrosystems, 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): Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7. 1968); Sec. 9(d) of the NLRA, as amended. * In its response to the Notice To Show Cause, Respondent states that it "relies upon documents already before the Board" and specifically incorporates in the instant proceeding those documents concerning its request for review; its application for heanng; and its request for retaking of affidavits. (Exhs. I, F, and G, respectively, of the prior representation proceeding.) 233 NLRB No. 151 On September 12, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached, alleging, in substance, that Respondent's answer raises no factual issues warranting a hearing and requesting the Board to grant the Motion for Summary Judgment. Subsequently, on September 16, 1977, 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 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 National Labor Relations Board has delegated its authority 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 As reflected above, Respondent's answer admits all of the factual allegations of the complaint, including its refusal to recognize and bargain with the Union which had been certified as the collective-bargaining representative of the employees described in the complaint. In its response to the Notice To Show Cause, Respondent raises substantially the same matters that it raised in the underlying representation case and in the affirmative defenses in its answer to the complaint.2 Respondent attacks the Regional Director's and the Board's several rulings at the various stages of the representation proceedings, including the validity of the election and the resulting certification, and it denies that the Union is the collective-bargaining representative of the employees in the bargaining unit.3 By this assertion, and more specifically by its denials, in whole or in part, of the allegations of the complaint, the affirmative defenses alleged in its answer, including its assertion that the Regional Director erred in relying on the Board's decision in Handy Andy, Inc., 228 NLRB 447 (1977),4 and the arguments propounded in its response to the Notice To Show Cause, Respondent is attempting to relitigate the same issues which it raised and litigated 3 Respondent filed a request for review of the Regional Director's Supplemental Decision and Certification of Representative in which the Regional Director overruled Respondent's objections to the election held on January 19, 1977. On May 18, 1977, the Board, by telegraphic order, denied Respondent's request for review on the ground that it raised no substantial issues warranting review. Subsequently, on June 22, 1977, Respondent, in its refusal-to-bargain letter to the Union, stated that as the Board denied its request for review, Case 21-RC-14848, it intended to contest the validity of the Board's actions in Federal court. 4 A defense relating to allegations that the Union engaged in a practice of racial discrimination is not appropriately raised at this stage of the Board's proceedings. See Buchanan Lumber Birmingham Inc., Aliceville Veneer Division, 232 NLRB No. 141 (1977); Bell & Howell Company, 230 NLRB 420 (1977); Handy Andy, Inc., supra. 1009 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the representation proceeding, Case 21-RC- 14848. It is well settled that in the absence of newly discovered 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.5 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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 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 I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a California corporation, has been engaged in the manufacture of Melmac dinnerware and operates a facility located at 603 North Ford Boulevard, Los Angeles, California. In the normal course and conduct of its business operations, Respondent annually sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of California. We find, on the basis of the foregoing, that Respondent 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 Hospital & Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, including all employees in the pressing, packag- ing, finishing, and maintenance departments, and truckdrivers employed by Respondent at its facility located at 603 North Ford Boulevard, Los Angeles, California; excluding all other employ- ees, office clerical employees, gardeners, guards, and supervisors as defined in the Act. 2. The certification On January 19, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 21 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 in said unit on March 23, 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 May 19, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about June 22, 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 June 22, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. I 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). I010 MIRAMAR OF CALIFORNIA 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 opera- tions described in section I, above, have a close, intimate, 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 com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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 appropriate unit will be accorded the services of their selected 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 of employees 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 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: CONCLUSIONS OF LAW 1. Miramar of California, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital & Service Employees Union, Local 399, Service Employees International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including all employees in the pressing, packaging, finishing, and maintenance departments, and truck- drivers employed by Respondent at its facility located at 603 North Ford Boulevard, Los Angeles, California; excluding all other employees, office clerical employees, gardeners, guards, and supervi- sors 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 March 23, 1977, the above-named labor 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 June 22, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 meaning of Section 8(a)(l) 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 Relations Board hereby orders that the Respondent, Miramar of California, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Hospital & Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including all employees in the pressing, packag- ing, finishing, and maintenance departments, and truckdrivers employed by Respondent at its facility located at 603 North Ford Boulevard, Los Angeles, California; excluding all other employ- ees, office clerical employees, gardeners, 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 1011 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Los Angeles, California, facility, copies of the attached notice marked "Appendix." 6 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 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 Respon- dent to insure that said notices are not altered, defaced, 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. 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." 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Hospi- tal & Service Employees Union, Local 399, Service Employees International Union, AFL- CIO, as the exclusive representative of the employees in the bargaining 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 representa- tive 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 agree- ment. The bargaining unit is: All production and maintenance employ- ees, including all employees in the pressing, packaging, finishing, and maintenance de- partments, and truckdrivers employed by Respondent at its facility located at 603 North Ford Boulevard, Los Angeles, Cali- fornia; excluding all other employees, office clerical employees, gardeners, guards, and supervisors as defined in the Act. MIRAMAR OF CALIFORNIA, INC. 1012