Webb Furniture Enterprises, Inc.

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Webb Furniture Enterprises, Inc. and United Furni- ture Workers of America, AFL-CIO Cases 5- CA-13612 and 5-CA-14095 24 September 1984 ORDER REMANDING BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 26 March 1984 Administrative Law Judge Bruce C Nasdor issued a decision [See 275 NLRB No 180 (July 31, 1985) ] The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief The Respondent also filed cross-exceptions and a supporting brief, and the General Counsel filed an answering brief to the cross-exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the record and the at- tached decision in light of the exceptions and briefs and has decided to remand the proceeding to the judge for further consideration regarding a certain 8(a)(1) allegation and certain 8(a)(3) and (1) allega- tions of the amended consolidated complaint, de- scribed below, and the issuance of a supplemental decision We defer consideration of the remaining complaint allegations pending the judge's supple- mental decision The Alleged 8(a)(1) Violation The complaint alleges, and employee Deliah Howard testified, that in September 1981 Supervi- sor Clifford Edwards approached her while she was wearing a union T-shirt and told her people who had those T-shirts on would dread it Ed- wards denied the remark The judge failed to find whether Edwards made the statement and, if he did, whether it violated Section 8(a)(1) of the Act The Alleged 8(a)(3) and (1) Violations The complaint alleges, inter aim, the Respondent violated Section 8(a)(3) and (1) by discriminatorily selecting 17 employees for layoff 5 February 1982 1 The judge recommended dismissing the allegations In so doing, the judge recited various facts about the selection of each individual for layoff, and cap- sulized the opposing arguments of the parties con- cerning each alleged discnminatee He failed, how- ' The 17 employees include Guy Arnold, Gary Higgins Roger Shin ault Robert Sizemore, Dennis Funk, John Hale Jr Harry Banks Jr, James Bolt, Norman Gibson, Paul Hall, Jimmy Brewer Billy Ray Sexton, Flossie Stoneman, Mary White, David Johnson, Bettie Goad, and Susan Shaw ever, to make specific factual findings, often includ- ing credibility resolutions, about the reasons for choosing each employee for layoff, or carefully to analyze each alleged unlawful layoff under the Board's Supreme Court-approved "Wright Line" test 2 In particular, the judge did not make findings regarding the precise criteria the Respondent used to select employees for layoff, and to determine whether they were nondiscriminatonly applied in each case Instead, the judge merely asserted "ex- cessive absenteeism" was a "valid basis" for layoff selections, and yet conceded that some employees retained had worse attendance records than those laid off The judge concluded vaguely, and without specific reference to individuals, that in such case the Respondent had a valid reason for not using absenteeism as the deciding factor 3 Section 102 45(a) of the Board's Rules and Regu- lations provides that after a hearing the judge shall prepare a decision containing "findings of fact, conclusions, and the reason or basis therefor, upon all material issues of fact, law, or discretion pre- sented on the record " In similar terms, Section 557(c) of the Administrative Procedure Act re- quires, inter aim., that such a decision state "find- ings and conclusions, and the reasons or basis thereof, on all material issues of fact, law, or dis- cretion presented in the record" Accordingly, and for the reasons stated above, we will remand the case to the judge to issue a supplemental decision resolving the complaint alle- gations in question in conformity with our Rules and Regulations and the Administrative Procedure Act It is ordered the proceeding be remanded to Ad- ministrative Law Judge Bruce C Nasdor to issue a supplemental decision containing findings of fact, credibility resolutions, and conclusions of law re- garding the complaint allegations that Supervisor Edwards violated Section 8(a)(1) by threatening employee Howard in September 1981, and that the Respondent violated Section 8(a)(3) and (1) by se- lecting 17 employees for layoff 5 February 1982 The supplemental decision shall be served on the parties, after which the provisions of Section 102 46 of the Board's Rules and Regulations shall be applicable 2 Wright Line, 251 NLRB 1083 (1981), enfd 662 F 2d 899 (1st Or 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transporta tion Management Corp, 462 U S 393 (1983) 2 Elsewhere in his decision, however, the judge recounted testimony by Company President Duane E Ward Jr that the layoff criteria in volves considering first an employee s job performance and thereafter versatility, physical condition and attendance In the event that employ ees are essentially equal in all other categories, according to Ward se nionty is considered 272 NLRB No 56 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is neither an abuse of discretion nor a denial of due process 3 By letters dated 11 May and 14 July the Union requested the Company to recognize and bargain with it By letter dated 20 July the Company ac- knowledged receipt of the Union's bargaining demand and stated that since it intended to contest the validity of the election the Company must "de- cline your request for a meeting to commence ne- gotiations for a contract to cover the Yankee Whaler Inn employees" 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 US 146, 162 (1941), Secs 102 67(f) 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 pro- ceeding The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding Accordingly we grant the Motion for Summary Judgment 4 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1 JURISDICTION The Company, a California corporation, is en- gaged in the operation of a restaurant and cocktail lounge at its facility in San Pedro, California, where it annually derives gross revenues in excess of $500,000 and annually purchases and receives goods and products valued in excess of $50,000 di- rectly from suppliers located outside the State of California We find that the Company is an em- ployer engaged in commerce within the meaning of 3 We find that the Employer's exceptions and supporting documents fail to raise substantial and material Issues warranting a hearing even when construed most favorably to the Company Thus we find It unnec- essary to consider any information relied upon by the Regional Director but not submitted to the Board Member Hunter agrees with the immedi ately foregoing statement, but does not join in the rationale of the text on this point 4 Member Hunter notes that he was not a member of the panel that decided the underlying representation proceeding in this case In granting summary judgment, Member Hunter with regard to the alleged Milchem objection (170 NLRB 362 (1968)), relies on the Board s finding in the un denying representation proceeding that no prolonged proscribed conver sations occurred in fact Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act 11 ALLEGED UNFAIR LABOR PRACTICES A The Cert.fication Following the election held 24 February, the Union was certified 4 May as the collective-bar- gaining representative of the employees in the fol- lowing appropriate unit All full-time and regular part-time employees employed by Specialty Restaurants Corpora- tion, d/b/a Yankee Whaler Company, d/b/a Yankee Whaler Inn at its restaurant and cock- tail lounge located at Berth 75, San Pedro, California, excluding guards and supervisors as defined in the Act The Union continues to be the exclusive represent- ative under Section 9(a) of the Act B Refusal to Bargain Since 11 May the Union has requested the Com- pany to bargain, and since, 20 July 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 20 July to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting 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)