Len Martin Corp.

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Len Martin Corporation and Pacific Northwest Dis- trict Council, International Ladies' Garment Workers' Union, AFL-CIO. Case 36-CA-6758 19 December 1986 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS Upon a charge filed by Pacific Northwest Dis- trict Council,, International Ladies' Garment Work- ers' Union, AFL-CIO (ILGWU) 10 September 1984,1 the General Counsel of the National Labor Relations Board issued a complaint 27 September against the Company (the Respondent), alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Copies of the charge and the complaint were duly served on the parties. The complaint alleges that, since 1981, the ILGWU has been the designated representative of an appropriate unit of the Respondent's employees. The Respondent and the ILGWU entered into a contract effective from 19 October 1981 to 19 Oc- tober 1984. About 16 July, Warehouse, Mail Order, Retail Employees and Wholesale Liquor Salesper- sons Union, Local 853, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 853) requested the Re- spondent to recognize it as the exclusive represent- ative of the unit employees. About 19 July, Local 853 filed a timely representation petition under Section 9(c) of the Act in Case 32-RC-2024, seek- ing to represent the employees in the unit. About 19 July, the incumbent ILGWU requested the Re- spondent to bargain for a successor agreement. The Respondent and ILGWU met for that purpose about 28 August. This was the only negotiating meeting held between the Respondent and the ILGWU. The complaint alleges that the Respond- ent has failed and refused to bargain with the ILGWU since about 6 September. On 5 October the Respondent filed its answer to the complaint and on 15 October the Respondent filed its amend- ed answer, which superseded its answer, admitting in part and denying in part the allegations of the complaint. On 29 October the -General Counsel filed a Motion for Summary Judgment. On 7 November the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. ' All dates are in 1984 unless otherwise mdicated. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Respondent contends that the Board should deny the Motion for Summary Judgment and dis- miss the complaint in its entirety because RCA Del Caribe, Inc.,2 on which the allegations of the com- plaint are premised, was incorrectly decided. The General Counsel asserts that the Respondent seeks only to test the continuing validity of con- trolling precedent. The Respondent's affirmative defense is grounded on but a single contention, namely, that RCA Del Caribe, which unambiguous- ly declares unlawful the very conduct in which the Respondent in its amended answer admits it has en- gaged, is incorrect and should be reversed. The General Counsel argues that the Respondent's fac- tual admissions clearly demonstrate that its refusal to bargain constitutes a violation of Section 8(a)(5) and (1) of the Act under RCA Del Caribe., We agree with the General Counsel. In urging the Board to reconsider its holding in RCA Del Caribe, the Respondent asserts that the stability of collective-bargaining relationships is not promoted by requiring continued bargaining with an incumbent union when a valid representation petition has been filed. Furthermore, it adds, strict employer neutrality is the simplest and most effec- tive method for securing employee rights under Section 7. According to the Respondent, in situa- tions like this one, where an employer only desires to remain neutral in a bitter labor dispute between competing unions, the Board should not compel continued bargaining with the incumbent. This bar- gaining, argues the Respondent, in reality tends to jeopardize an employer's neutrality by allowing it the option of manipulating the bargaining process to favor either the incumbent or the outside, chal- lenging union. We reject the Respondent's argument and adhere to the Board's reasoning in RCA Del Caribe. Thus, we agree with the Board majority in that case that in the face of competing unions' demands the "preservation of the status quo through an employ- er's continued bargaining with an incumbent is the better way to approximate employer neutrality." RCA Del Caribe, supra at 965. We therefore find that the Respondent has raised no issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. 2 262 NLRB 963 (1982). 282 NLRB No. 75 LEN MARTIN CORP. 483 On the basis of the entire 'record, the 'Board makes the following FINDINGS OF FACT I. JURISDICTION The Company is a California corporation with an office and place of business in Haywood, Cali- fornia, which is engaged in providing warehousing and other presale services to retail clothing distrib- utors. During the 12 months preceding issuance of the complaint, the Respondent in the course and conduct of its business operations, sold goods or services valued in excess of $50,000 to customers or business enterprises within the State of Califor- nia, which customers or business enterprises them- selves meet one of the Board's, jurisdictional stand- ards, other than the indirect inflow or outflow standards. We find that the Company is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that both ILGWU and Local 853 are labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. The Unit and the ILGWU's Representative Status The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees, including ship- ping and receiving employees, plant cler- icals/order checkers and porters, employed by Respondent .at its Haywood, California facility; excluding office clerical employees, data proc- essing employees, mechanics, guards, and su- pervisors as, defined in the Act. The ILGWU has been the designated exclusive collective-bargaining representative of the employ- ees in the unit since about 16 October 1981.3 Such $ The petition filed by Local 853 in Case 32-RC-2024 was processed pursuant to Board authorization. An election was held on 14 December with the resulting tally: Local 853, 370 votes; ILGWU, 56 votes; and nei- ther, 11 votes. The ILGWU filed timely objections to the conduct of the election The Regional Director overruled the objections and certified Local 853 Subsequently, the ILGWU filed a request for review. The Board denied the request for review, thereby upholding the certification of Local 853. Therefore, the ILGWU, since about 18 March 1985, the date of the Board's denial of the ILGWU's request for review of the Re- gional Director's Supplemental Decision and Certification of Representa- tive, has not been the exclusive collective-bargaining representative of the unit employees. Member Johansen did not participate in the authorization to proceed with the election or the denial of the request for review but considers them the law of the,case. recognition is embodied in a collective-bargaining agreement, which is effective by its terms for the period 19 October 1981 to 19 October 1984. B. The Refusal to Bargain About 19 July, Local 853 filed a timely petition for representation of the Respondent's unit employ- ees. About 19 July the ILGWU, by letter, requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of employees in the unit, for the purpose of negoti- ating a successor collective-bargaining agreement and, about 28 August, the Respondent and the ILGWU met for that, purpose. Since about 6 or 7 September, the Respondent has, failed and refused to bargain with the ILGWU. We fmd the Respondent has, by this conduct, violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By failing and refusing to ',bargain with the ILGWU for a successor collective-bargaining agreement since about 6 or 7 September, the Com- pany has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. THE 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.4 ORDER The National Labor Relations Board orders that the Respondent, Len Martin Corporation, Hay- wood, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing from bargaining with an incum- bent union, which is the exclusive bargaining repre- sentative of its employees in the bargaining unit based on the filing of a representation petition by an outside, challenging union. (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. 4 As previously noted, the ILGWU is no longer the exclusive bargain- ing representative of the unit employees. Therefore, our remedy and Order shall not include an affirmative bargaining order. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its facility in Hayward, California, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 32, 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. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 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." 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 an incum- bent, union as the exclusive bargaining representa- tive of our employees in the bargaining unit based on the filing of a representation petition by an out- side challenging union. _ 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. LEN MARTIN CORPORATION