A. Brandt Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 636 (N.L.R.B. 1973)

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Brandt Company, Inc. and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No . 47. Case 16-
CA-5011
June 29, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
Upon a charge filed on December 14, 1972, by
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 47, herein called the Union, and duly
served on A. Brandt Company, Inc., herein called the
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 16, issued a complaint on January 19, 1973,
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 (1) and Section 2(6) and (7) of the Nation-
al 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 com-
plaint alleges in substance that on September 29,
1972, following a Board election in Case 16-RC-5850
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate; I and that,
commencing on or about January 9, 1973, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On January 25, 1973, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On February 5, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 13,
1973, the Respondent filed a Response in Opposition
to Motion for Summary Judgment. On February 14,
1973, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
i Official notice is taken of the record in the representation proceeding.
Case 16-RC-5850 , as the term "record" is defined in Secs 102 68 and 102
.69(f) of the Board's Rules and Regulations , Series 8, as amended See LTV
Electrosystems, Inc, 166 NLRB 938 enfd. 388 F.2d 683 (C.A. 4, 1968), Golden
Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969); Intertype
Co. v. Penello, 269 F.Supp 573 (D C Va, 1967), Follett Corp, NLRB 378,
enfd 397 F 2d 91 (C.A 7, 1968); Sec 9(d) of the NLRA
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent did not
file a response to 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 response oppos-
ing Motion for Summary Judgment, the Respondent
contends that the Board erred in certifying the Union
in Case 16-RC-5850. It argues that it not only had
raised a reasonable question concerning fraud on the
Board's processes prior to the election, but, that it also
had been deprived of due process in not being able to
litigate at a hearing the representation case issues. The
General Counsel contends that the Respondent is at-
tempting to relitigate issues which had been litigated
and determined in the representation case. We agree
with the General Counsel.
Our review of the record in Case 16-RC-5850 re-
flects that, after he issued his Decision and Direction
of Election of January 31, 1972, the Regional Director
was requested by the Respondent to investigate al-
leged collusion and fraud between the Union and the
representation case petitioner. As set forth in his Sup-
plemental Decision and Order of March 2, 1972, the
Regional Director's administrative investigation
showed, inter alia, that the petitioner had requested
withdrawal from the ballot while the Union sought to
become a cross-petitioner. Accordingly, satisfied that
there was no collusion or fraud between the Union
and the petitioner and that the Union's showing of
interest was substantial and timely, the Regional Di-
rector granted the petitioner's withdrawal request, ac-
cepted the Union as a cross-petitioner, directed that
the election be conducted, and denied the
Respondent's motions to dismiss the petition. The
Respondent's request for review of the Regional
Director's Supplemental Decision and Order was de-
nied by the Board on March 13, 1972, as raising no
substantial issues warranting review.
In the election held on March 14, 1972, the Union
secured a majority of the valid votes counted plus
challenged ballots. The Respondent thereafter timely
filed three objections to conduct affecting the results
of the election. On April 21, 1972, the Regional Direc-
tor issued a Second Supplemental Decision and Order
in which, after bypassing Objections 1 and 2, he set
aside the election and, on the basis of Objection 3,2
2 This objection alleged that the Union intertered with the election by
204 NLRB No. 78
A. BRANDT COMPANY, INC. 637
directed the holding of a second election. On May 19,
1972, the Board granted the Union's request for re-
view of the Regional Director's ruling sustaining Ob-
jection 3, but deferred review thereon until after the
disposition of Objections 1 and 2 which, upon the
Respondent's request for review, were remanded to
the Regional Director for his investigation and ruling
thereon.
On June 15, 1972, the Regional Director issued his
Third Supplemental Decision in which he overruled
Objections 1 and 2.3 Thereafter, the Respondent filed
with the Board a timely request for review thereof on
the ground that the Regional Director had departed
from precedent.
On September 29, 1972, the Board issued its Deci-
sion on Review and Certification of Representative
(199 NLRB No. 55) in which it concluded that the
Respondent's request for review of the Regional
Director's overruling Objections 1 and 2 raised no
substantial issues warranting review and that the dis-
puted propaganda alleged in Objection 3 did not im-
pair the voters' free choice in the election.
Accordingly, the Board overruled the objections and
certified the Union.4
It thus appears that the Respondent's contentions
and arguments in support thereof are the same as
those advanced by it in the underlying representation
case and have been previously considered and de-
termined by the Board.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the 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
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that the Respondent has not raised any issue
reproducing and publishing the Regional Director's Supplemental Decision
and Order with untruthful notations thereon , thereby creating the impression
that the Board favored and supported the Union.
I Objection I generally dealt with the Regional Director's acceptance of
the Union as a cross -petitioner despite allegations of fraud and collusion
whereby the original petitioner assisted the Union in securing its showing of
interest . Objection 2 dealt with the Union 's injection of racial appeals during
the election campaign.
Although joining his colleagues in overruling Objections I and 3 , Chair-
man Miller dissented from denial of review of Objection 2 and, therefore,
dissented from the certification of the Union.
5 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).
which is properly litigable in this unfair labor practice
proceeding.6 We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation with its
principal office in Fort Worth, Texas, is engaged in
the business of manufacturing furniture and wood
products. During the past 12 months, a representative
period, the Respondent, in the course and conduct of
its business operations, purchased goods and materi-
als from points outside the State of Texas valued in
excess of $50,000, which it caused to be shipped di-
rectly to its operations in Texas. During the same
period, Respondent sold goods produced in Texas to
purchasers outside of Texas valued in excess of
$50,000.
We find, on the basis of the foregoing, that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America, Local
Union No. 47, is a labor organization within the
meaning of Section 2(5) of the Act.
III UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees,
including inventory clerks and local truckdrivers
employed by the Respondent at its Fort Worth
6 In its response in opposition to Motion for Summary Judgment, the
Respondent alleges that the policy , practice, and procedure of the Board in
representation cases fail to provide interested parties the opportunity to
litigate issues at a hearing so as to obtain due process Accordingly, it urges
the Board to reexamine and change its policy with respect to litigation of
issues in representation cases so that it would be able to litigate at an evidenti-
ary hearing the representation issues raised by it herein. We find no ment
in the Respondent 's position Our litigation policies, practices , and proce-
dures in representation cases have long been established and judicially ap-
proved , N L R B v. Golden Age Beverage Co, 415 F.2d 26,32 (C.A 5, 1969)
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant exclusive of office clerical employees, over-
the-road drivers, firemen, watchmen, sales em-
ployees, draftsmen, and all supervisors as defined
in the Act.
2. The certification
On March 14 , 1972, a majority of the employees of
Respondent in said unit in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 16 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent . The Union was certified as the
collective -bargaining representative of the employees
in said unit on September 29, 1972, 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 October 2, 1972, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about January 9, 1973, and continuing at all
times thereafter to date, the Respondent has refused,
and continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since January 9, 1973, 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, Respondent
has engaged in and is engaging in unfair labor practic-
es 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 operations
described in Section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379
U.S. 817 (1964); Burnett Construction Company, 149
NLRB 1419, 1421, 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. A. Brandt Company, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No. 47, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding inventory clerks and local truckdrivers em-
ployed by the Respondent at its Fort Worth plant, but
excluding office clerical employees, over-the-road
drivers, firemen, watchmen, sales employees drafts-
men, and all supervisors as defined in the Act consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since September 29, 1972, the above-named la-
bor organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about January 9, 1973, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
A. BRANDT COMPANY, INC.
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 mean-
ing of Section 8(a)(1) of the Act.
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 Rela-
tions Board hereby orders that Respondent, A.
Brandt Company, Inc., 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 condi-
tions of employment with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union No. 47, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees,
including inventory clerks and local truckdrivers
employed by the Respondent at its Fort Worth
plant, but excluding office clerical employees,
over-the-road drivers, firemen, watchmen, sales
employees, draftsmen, and all supervisors as de-
fined 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 Fort Worth, Texas, plant copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 16, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 16 in
639
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN MILLER, dissenting:
I dissented from the certification of the Union in
the Board's Decision on Review and Certification of
Representative because I disagreed with the refusal to
review Objection 2, involving the injection of racial
appeals during the election campaign. I therefore
would deny the General Counsel's Motion for Sum-
mary Judgment.
7In 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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 47, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner in-
terfere 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 representative 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 agreement. The
bargaining unit is:
All production and maintenance employees,
including inventory clerks and local truckdriv-
ers employed by the Employer at its Fort
Worth plant, but excluding office clerical em-
ployees, over-the-road drivers, firemen, watch-
men, sales employers, draftsmen, and all su-
pervisors as defined in the Act.
A. BRANDT COMPANY, INC.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Employer) This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
Dated By defaced , or covered by any other material.
(Representative) (Title) Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 8-
This is an official notice and must not be defaced A-24, 819 Taylor Street, Fort Worth, Texas 76102,
by anyone. Telephone 817-332-2921.