Ethan Ellen, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ethan Allen, Inc. and United Furniture Workers of America, AFL-CIO. Case 16-CA-7064 August 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER Upon a charge filed on March 4, 1977, by United Furniture Workers of America, AFL-CIO, herein called the Union, and duly served on Ethan Allen, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint on April 8, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 complaint alleges in substance that on November 11, 1976, following a Board election in Case 16-RC- 7137, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about November 29, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On April 12, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent averred that the Board's certification was improper for the following reasons: (a) Respon- dent was denied its right to cross-examine under oath those persons upon whose self-serving and factually inaccurate affidavits the Board relied on to dismiss Respondent's objections to the election; and (b) a high-ranking company official unlawfully supported the Union in the election without the knowledge or consent of Respondent, and such support destroyed the laboratory conditions necessary for a fair, free, and valid election. On April 27, 1977, counsel for the General Counsel filed directly with the Board a motion to transfer the case to and continue the proceeding before the Board ' Official notice is taken of the record in the representation proceeding, Case 16-RC-7137, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 231 NLRB No. 24 and for summary judgment. Subsequently, on May 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 Judgement should not be granted. Respon- dent thereafter filed a motion to remand, a motion for oral argument and permission to file amicus briefs, and a brief in opposition to the Motion for Summary Judgment. The General Counsel filed an opposition to these motions. 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 In its response to the Notice To Show Cause, Respondent contends that there exists substantial and material issues of fact which have not been resolved by a hearing and that due process requires that Respondent be given a hearing on the issues before being found guilty of an unfair labor practice. Review of the record herein reveals that in Case 16-RC-7137, a Stipulation for Certification Upon Consent Election was approved by the Regional Director and the election was conducted on April 8, 1976. On May 4, 1976, Respondent filed objections to conduct affecting the results of the election. The tally of ballots showed that of approximately 65 eligible voters 33 cast ballots for the Union, 32 cast ballots against the Union, and 2 ballots were challenged. The Regional Director issued his Report on Objections and Challenges on June 29, 1976, recommending that the objections be overruled, that the challenges be sustained, and that the Union be certified, and on November 11, 1976, the Board issued a Decision and Certification of Representa- tive, certifying the Union as the collective-bargaining representative of the employees in the appropriate unit (not reported in bound volumes of Board Decisions). Following a request by the Union on or about November 29, 1976, that the Respondent bargain collectively in good faith with respect to rates of pay, hours, and other terms and conditions of employ- ment, the Respondent refused to recognize and bargain in good faith with the Union as the exclusive bargaining representative of its employees in the certified unit. Respondent has refused to bargain with the Union since November 29, 1976. 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. 132 ETHAN ALLEN, INC. 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.2 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding,3 and the Respon- dent 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. 4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of New York, maintaining a place of business and produc- tion facility at Atoka, Oklahoma, where it is engaged in the manufacture and distribution of wood furni- ture and custom upholstered furniture and the distribution of related home decorating accessories. During the past 12 months, which period is repre- sentative of all times material herein, Respondent, in the course and conduct of its business operations, purchased, transferred, and delivered to its Atoka, Oklahoma, facility goods and materials valued in excess of $50,000 which were transported to said facility directly from States of the United States other than the State of Oklahoma. During the same period of time, Respondent manufactured, sold, and distributed from its Atoka, Oklahoma, facility wood and upholstered furniture and related home decorat- ing accessories valued in excess of $50,000, which were shipped from said plant directly to points outside the State of Oklahoma. 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 ' See Pittshurgh 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). :' In the representation proceeding, Respondent contended in its objections that ( I } union representatives and agents made false, misleading, and defamatory statements which altered the laboratory conditions for a valid election, and that these statements were not made known to it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED United Furniture Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, including distribution employees employed by Respondent at its Atoka Division Plant, Venita Allen Parkway, Atoka, Oklahoma, excluding all office clerical employees, timestudy employees, professional and technical employees, over-the- road truckdrivers, guards, watchmen, and super- visors as defined in the Act. 2. The certification On April 28, 1976, 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 16, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargain- ing representative of the employees in said unit on November 11, 1976, 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 November 29, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 29, 1976, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to Respondent until too late for an adequate response, and (2) the plant supenntendent campaigned on behalf of the Union without authorization. 4 We deny Respondent's motion to remand and motion for oral argument and permission to file amicus briefs as the record and briefs adequately present the positions of the parties. 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since November 29, 1976, 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, Respon- dent has engaged in and is engaging in unfair labor practices 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 Ill, above, occurring in connection with its opera- tions described in section 1, 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(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 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 in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1972), 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. Ethan Allen, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Furniture Workers of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including distribution employees employed by Re- spondent at its Atoka Division Plant, Venita Allen Parkway, Atoka, Oklahoma, excluding all office clerical employees, timestudy employees, profession- al and technical employees, over-the-road truckdri- vers, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 11, 1976, 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 November 29, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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, 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)(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 Relations Board hereby orders that the Respondent, Ethan Allen, Inc., Atoka, Oklahoma, 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 conditions of employment with United Furniture Workers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including distribution employees employed by Respondent at its Atoka Division Plant, Venita Allen Parkway, Atoka, Oklahoma, excluding all 134 ETHAN ALLEN, INC. office clerical employees, timestudy employees, professional and technical employees, over-the- road truckdrivers, guards, watchmen, and super- visors 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 Atoka Division Plant, Atoka, Oklahoma, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representa- tive, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 OIDER 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 United Furniture Workers of America, 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 uaderstanding in a signed agree- ment. The bargaining unit is: All production and maintenance employ- ees, including distribution employees em- ployed by Respondent at its Atoka Division Plant, Venita Allen Parkway, Atoka, Okla- homa, excluding all office clerical employ- ees, timestudy employes, professional and technical employees, over-the-road truckdri- vers, guards, watchmen, and supervisors as defined in the Act. ETHAN ALLEN, INC. 135