Kaufman Carper Co., Inc.

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kaufman Carpet Co., Inc . and Local Union No. 560, International Brotherhood of Teamsters , Chuaf- feurs, Warehousemen and Helpers of America. Case 22-CA-14145 14 May 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON Upon a charge filed by the Union 20 November 1985, the General Counsel of the National Labor Relations Board issued a complaint dated 10 De- cember 1985 against Kaufman Carpet Co., Inc., the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 7 November 1985, following a Board election in Case 22-RC-9497, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since on or about 12 November 1985, including 4 December 1985, the Company has refused and continues to date to refuse to bar- gain with the Union. On 23 December 1983 the Company filed its answer admitting in part and de- nying in part the allegations in the complaint. On 6 January 1986 the General Counsel filed a Motion for Summary Judgment. On 10 January 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In its answer to the complaint, the Company denies the allegation that it has refused to recog- nize and bargain with the Union, but in the same paragraph avers that its counsel informed an agent of the Board that the Company believed that the certification of the Union was improper and that it therefore refused to recognize the Union as the ex- clusive representative of the Company's drivers. Therefore, the Company admits in substance that it has failed and refused to recognize and bargain with the Union as the exclusive collective-bargain- ing representative of that unit. The Company con- tests the Union's certification on the basis that the unit of truckdrivers found appropriate in the under- lying representation proceeding is inappropriate be- cause the drivers are supervisors within the mean- ing of the Act. The Company argues that the truckdrivers exercise supervisory authority over their helpers. In directing an expedited election, the Regional Director found that the drivers' helpers were not employees of the Company. In its re- sponse to the Notice to Show Cause, the Company contends that it and the individual drivers are joint employers of the drivers' helpers, and therefore the helpers are employees of the Company. In the al- ternative, the Company maintains that even if the helpers are not the Company's employees the driv- ers are still statutory supervisors because their exer- cise of supervisory authority is in the Company's interest. The Company contends that genuine and material issues of fact exist which warrant a hear- ing. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(1) and 102.69(c) of the Board's Rules and Regulations.All issues raised by the Company were or could have been litigated in the prior representation proceeding. The Company does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We there- fore find that the Company has not raised any issue that is properly litigable in this unfair labor prac- tice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a New Jersey corporation, with an office and place of business in Lodi, New Jersey, is engaged in the retail sale and distribution of carpets and related products. During the 12 months preceding issuance of the complaint the Company derived gross revenue in excess of $500,000 and purchased and received at its Lodi, New Jersey facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of New Jersey. We find that the 279 NLRB No. 128 KAUFMAN CARPET CO 929 Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 10 September 1985 the Union was certified on 7 November 1985 as the collective-bargaining representative of the employ- ees in the following appropriate unit: All truck drivers employed by the Respondent at its Lodi, New Jersey facility; excluding all warehouse employees, office clerical employ- ees, professional employees, guards and super- visors as defined in the Act, and all other em- ployees. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since on or about 12 November 1985 the Union has requested the Company to bargain, and since on or about 12 November 1985, including 4 De- cember 1985, the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and ( 1) of the Act. CONCLUSIONS OF LAW By refusing on and after 12 November 1985, in- cluding 4 December 1985, to bargain with the Union as the exclusive collective -bargaining repre- sentative of employees in the appropriate unit, the Company has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Kaufman Carpet Co., Lodi, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local Union No. 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All truck drivers employed by the Respondent at its Lodi, New Jersey facility; excluding all warehouse employees, office clerical employ- ees, professional employees, guards and super- visors as defined in the Act, and all other em- ployees. (b) Post at its facility in Lodi, New Jersey, copies of the attached notice marked "Appendix."1 Copies of the notice, on forms provided by the Re- gional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained -for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the. Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. i If 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 Nation- al 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 " 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local Union No. 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All truck drivers employed by the Employer at its Lodi, New Jersey facility; excluding all warehouse employees, office clerical employ- ees, professional employees, guards and super- visors as defined in the Act, and all other em- ployees. KAUFMAN CARPET CO.