Butler-Johnson Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Butler-Johnson Corporation and Freight, Construc- tion, General Drivers, Warehousemen and Helpers Union, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 20-CA-12526 August 23, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on February 25, 1977, by Freight, Construction, General Drivers, Warehouse- men and Helpers Union, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Butler-Johnson Compa- ny, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and notice of hearing on March 11, 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 (I) 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 December 22, 1976, following a Board election in Case 20-RC- 13278 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 February 17, 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 requesting it to do so. On March 24, 1977, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 24, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 3, 1977, the Board issued an order transferring the proceeding to the ' Official notice is taken of the record in the representation proceeding, Case 20-RC-13278, as the term "record" is refined 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, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (CA. 5. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 231 NLRB No. 84 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 entitled "Respondent's Answer to Notice To Show Cause." Attached to the response was Respondent's request for oral argument which was opposed by the General Counsel. 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,2 the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, and affirmative defenses raised therein, and in its response to the Notice To Show Cause, Respondent contests the validity of the certification on the basis of its objections to the election and contends that the denial of a hearing on the substantial and material issues of fact raised by the objections constitutes a denial of due process. The General Counsel contends that Respondent's answer admits each and every factual allegation of the complaint and that Respon- dent is merely attempting to relitigate matters which were or could have been disposed of in the underlying representation case. We agree with the General Counsel. Our review of the record, including that of the underlying representation case (20-RC-13278), re- veals that, pursuant to a Decision and Direction of Second Election by the Board,3 an election was held on July 23, 1976, in which the Union prevailed by a vote of 12 to 8, with 3 challenged ballots. Respondent filed timely objections, alleging, in substance, as follows: (I) Union material misrepresentations of fact concerning (a) Respondent, its management, and activities, (b) initiation fees, (c) collective bargaining, and (d) risks to employees if the Union lost the election; (2) union conduct including (a) promises of benefits, (b) threats, (c) creating a preelection "atmosphere of fear," and (d) requiring employees to pay initiation fees as a condition to filing a representation petition; (3) Board agent misconduct demonstrated, inter alia, by (a) the manner of his participation in the challenge proce- dure, (b) his intimidating Respondent's observer, and (c) his repeated request for payroll information on 2 Respondent's request for oral argument is hereby denied as the General Counsel's motion and Respondent's answer to the Notice To Show Cause adequately present the positions of the parties. 3 The first election held on January 23, 1976, pursuant to a Stipulation for Certification Upon Consent Election, was ordered set aside by the Board on June 18, 1976, which adopted the Regional Director's recommendation to that effect based on Respondent's objections to the conduct of the election. 542 BUTLER-JOHNSON CORP. employees whom the Union indicated it would challenge; and (4) Board agent misconduct by (a) failing to seal the ballot box properly, (b) inserting the incorrect name of the Union in the stipulation, and (c) utilizing see-through paper ballots. After investigation, the Regional Director, on November 2, 1976, issued a Supplemental Decision in which she concluded that Respondent's objections did not raise substantial or material issues with respect to the election and recommended that they be overruled and that an appropriate certification issue. Respondent filed with the Board detailed exceptions with supporting brief and affidavits, requesting, in substance, that the election be set aside and a new election be conducted or, in the alterna- tive, that an evidentiary hearing be held to resolve the substantial and material factual issues raised by its objections. On December 22, 1976, the Board issued a Supplemental Decision and Certification of Representative (1) finding that Respondent's excep- tions raised no material issue of law or fact warranting reversal of the Regional Director or requiring the holding of a hearing, (2) adopting the Regional Director's findings and recommendations, and (3) certifying the Union. It thus appears that Respondent is attempting to litigate matters which were or could have been heard and determined in the representation proceeding. Specifically, with respect to the hearing contention, it is well established that parties do not have an absolute right to a hearing. It is only when the moving party presents a primafacie showing of "substantial and material factual issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing 4 and here the Board specifically found that Respondent's excep- tions raised no issues warranting a hearing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements.5 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. 6 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 N.L.R.B. v. Modine Manufacturing Co., 500 F.2d 914 (C.A. 8. 1974), enfg. 203 NLRB 527 (1973); Handy Hardware Wholesale. Inc., 222 NLRB 373 (1976): Janler Plastic Mold Corporation, 191 NLRB 162 (1971): Crest Leather Manufacturing Corporation, 167 NLRB 1085 (1967), and cases cited therein. 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 THE RESPONDENT Respondent, a corporation organized under the laws of the State of California, operates a facility located in San Jose, California, where it is engaged in the nonretail distribution of building materials. During the preceding calendar year, a representative period, Respondent, in the course and conduct of its business operations, purchased and received goods, materials, and supplies valued in excess of $50,000 directly from suppliers located outside the State of California. During the same period, Respondent sold and shipped 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. 11. THE LABOR ORGANIZATION INVOLVED Freight, Construction, General Drivers, Ware- housemen and Helpers Union, Local 287, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and 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 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 employees of the Employer employed at its 1480 Nicora Avenue, San Jose, California, loca- 5 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.] v. N. LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970). 6 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). 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion; excluding salesmen, office clerical employ- ees, guards and supervisors as defined in the Act. 2. The certification On July 23, 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 20, 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 December 22, 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 January 18, 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 February 17, 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 February 17, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) 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 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(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 (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. Butler-Johnson Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Freight, Construction, General Drivers, Ware- housemen and Helpers Union, Local 287, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Employer employed at its 1480 Nicora Avenue, San Jose, California, location; excluding salesmen, office clerical employees, guards 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 December 22, 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 February 17, 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(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. 544 BUTLER-JOHNSON CORP. 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, Butler-Johnson Corporation, San Jose, California, 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 Freight, Construc- tion, General Drivers, Warehousemen and Helpers Union, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All employees of the Employer employed at its 1480 Nicora Avenue, San Jose, California, loca- tion; excluding salesmen, office clerical employ- ees, 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 located in San Jose, California, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 20, 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 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 Freight, Construction, General Drivers, Ware- housemen and Helpers Union, Local 287, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 employees of the Employer employed at its 1480 Nicora Avenue, San Jose, Califor- nia, location; excluding salesmen, office clerical employees, guards and supervisors as defined in the Act. BUTLER-JOHNSON CORPORATION 545