Loose Leaf Hardware, Inc.

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Loose Leaf Hardware, Inc. and International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Teamsters Local Union 667. Case 26-CA-8271 August 14, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on February 13, 1980, and an amended charge filed on February 26, 1980, by International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Teamsters Local Union 667, herein called the Union, and duly served on Loose Leaf Hardware, Inc., herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 26, issued a com- plaint on March 10, 1980, against Respondent, al- leging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, amended 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 March 5, 1979, following a Board election in Case 26-RC- 5990, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about December 13, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 19, 1980, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint, and asserting certain affirmative de- fenses. Respondent admitted that it meets the Board's jurisdictional standards and that the Union is a labor organization within the meaning of the Act. It denies that the Union was properly certified on November 5, 1979, as the collective-bargaining rep- ' Official notice is taken of the record in the representation proceed- ing. Case 26-RC-5990, 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 (4th Cir. 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 251 NLRB No. 19 resentative of the employees in the unit. It further denies that the Union is the exclusive bargaining representative of Respondent's employees in the described unit; or that it engaged in, or is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5), Sec- tion 8(d), and Section 2(6) and (7) of the Act. On April 24, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 28, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 answer to the complaint and its response to the Notice To Show Cause Respondent denies that the Union was properly certified as the representa- tive of its employees, and therefore denies that it has any duty to bargain with the Union. Specifical- ly, Respondent contends that the Regional Direc- tor acted in an arbitrary and capricious manner in that he failed to properly conduct an investigation of Respondent's objections to the representation election, and that the Regional Director and the Board overruled Respondent's objections to the election without affording Respondent the opportu- nity of a hearing, thus depriving Respondent of its constitutional right to due process of law. Review of the record herein reveals that in Case 26-RC-5990, the petition filed by the Union on April 24, 1979, and on May 7, 1979, the Regional Director approved a Stipulation for Certification Upon Consent Election. Following an election held on June 7, 1979, Respondent filed objections to the election, alleging, inter alia, that: (1) Petitioner's agents had threatened and harassed employees with physical violence if they crossed a picket line which might be established by Petitioner, and that the Union thereby caused employees who support- ed Petitioner to harass employees who opposed Pe- titioner thus creating an atmosphere of fear and co- ercion which denied the employees a free choice, (2) Petitioner, during the preelection campaign, made various misrepresentations of fact at a time when Respondent did not have an opportunity to respond; and (3) Petitioner provided alcoholic bev- LOO)SE LEAF HARDWARE, INC. 169 erages and other inducements to employees to in- fluence their votes. On July 13, 1979, the Regional Director issued his report on objections recommending that Re- spondent's objections be overruled in their entirety and that the Petitioner be issued a Certification of Representative. On August 1, 1979, Respondent filed its excep- tions to the report on objections, further alleging that the Regional Director's conduct of his investi- gation of Respondent's objections was so arbitrary as to deprive Respondent of its constitutional right to due process of law and that a hearing was neces- sary to resolve the substantial factual issues left un- resolved by the Regional Director's arbitrary ac- tions. On November 5, 1979, the Board issued a Decision and Certification of Representative in which it adopted the Regional Director's findings and recommendations2 and certified the Union as the exclusive bargaining representative of the em- ployees in the appropriate unit.3 It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceedings All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent, a corporation, is engaged in the business of manufacturing notebook hardware at its 2 246 NLRB No. 46 Member Penello dissented on the ground that In his opinion Respondent's Objections I and 2, insofar as theX allege threats of violent reprisals against employees should they attempt to cross any picket line established by the Petitioner raised issues warranting a hearing. 3 In its repsonse to the Notice To Show Cause. Respondent has re- quested that this case he referred to the Regional Director for a hearing In overruling Respondent's objections in Case 2 RC 5990, the Board necessarily found that there were no issues of fact or la sAarratnllg a hearing I See Ptrtburgh Pluat Glau (iC'o \ L.RR., 313 U S 146, I62 (1q4 1) Rules and Regulations of the Board, Sees 102 .7(f and 102 6 9(c) facility located at West Memphis, Arkansas. Re- spondent, on an annual basis, sells and ships from its West Memphis, Arkansas, facility products, goods, and materials valued in excess of $50,000 di- rectly to points outside the State of Arkansas. In addition, Respondent annually purchases and re- ceives at its West Memphis, Arkansas, facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Arkansas. We find, on the basis of the foregoing, that Re- spondent 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. II. THE LABOR ORGANIZATION INVOI.VED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Teamsters Local Union 667, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding all machine operators, packers, zip pressers, platers, machine adjusters, tool and die men, truckers and weighers, porters, and material handlers employed at the Employer's West Memphis, Arkansas, location; excluding all office clerical employees, guards, and su- pervisors as defined in the Act. 2. The certification On June 7, 1979, 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 26, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on November 5, 1979, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. LOOSE LEAF HARDWARE, INC 169 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about December 13, 1979, and at all times thereafter, the Union has requested 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 December 13, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 13, 1979, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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 the oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Loose Leaf Hardware, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Teamsters Local Union 667, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees in- cluding all machine operators, packers, zip press- ers, platers, machine adjusters, tool and die men, truckers and weighers, porters, and material han- dlers employed at the Employer's West Memphis, Arkansas, location; excluding all office clerical em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since November 5, 1979, 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 December 13, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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 Re- lations Board hereby orders that the Respondent, Loose Leaf Hardware, Inc., West Memphis, Ar- kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: LOOSE LEAF HARDWARE, INC. 171 (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Teamsters Local Union 667, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All production and maintenance employees in- cluding all machine operators, packers, zip pressers, platers, machine adjusters, tool and die men, truckers and weighers, porters, and material handlers employed at the Employer's West Memphis, Arkansas, location; excluding all office clerical employees, guards, and su- pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its West Memphis, Arkansas, location copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. ' 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." MEMBER PENELLO, dissenting: In my dissent in part in the underlying represen- tion proceeding, 246 NLRB No. 46 (1979), I con- cluded that the Employer's Objections 1 and 2, in- sofar as they alleged that the Petitioner threatened unit employees with violent reprisals should they attempt to cross any picket lines established by the Petitioner, raised issues warranting a hearing. Therefore, in my view, the certification of the Union was improper. Accordingly, I would deny the General Counsel's Motion for Summary Judg- ment, and I dissent from my colleagues' finding of a violation of Section 8(a)(5) herein. 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 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Local Union 667, 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 employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees including all machine operators, packers, zip pressers, platers, machine adjusters, tool and die men, truckers and weighers, porters, and material handlers employed at our Employ- er's West Memphis, Arkansas, location; ex- cluding all office clerical employees, guards, and supervisors as defined in the Act. LOOSE LEAF HARDWARE, INC. LOOSE LEAF HARDWARE, INC~~~~~~~~~~~~~~~~. 7