Best Products Co.

National Labor Relations Board - Board Decisions

Aug 17, 1984

271 N.L.R.B. 1058 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Best Products Company, Inc. and United Food and
Commercial Workers Local 428, AFL-CIO.
Case 32-CA-6425
17 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 26 April 1984,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 7 May 1984 against
the Company, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint alleges that on 28 March 1984,
following a Board election in Case 32-RC-1575,
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 12 April 1984 the Company
has refused to bargain with the Union. On 16 May
1984 the Company filed its answer admitting in
part and denying in part the allceations in the com-
plaint.
On 4 June 1984 the General Counsel filed a
Motion for Summary Judgment. On 7 June 1984
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 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
The Company's answer admits its refusal to bar-
gain, but attacks the validity of the certification on
the basis of its objections to the election in the rep-
resentation proceeding. In addition, the Respondent
urges that a hearing is necessary to determine
whether the employee turnover since the 3 June
1982 election presents special circumstances reliev-
I The Respondent has also filed a motion to designate the full tran-
script in the underlying representation case and the Excelsior list of eligi-
ble voters in the 3 June 1982 election as part of the record. As noted
above official notice is taken here of the "record" in the representation
proceeding in any event. Moreover, as set forth below, turnover subse-
quent to the election does not constitute "extraordinary circumstances"
warranting revocation of the Union's certification. Accordingly, even as-
suming that the Excelsior list would, as the Respondent alleges, establish
such turnover, it would not change the result herein. The Respondent's
motion is therefore denied.
ing the Respondent of its bargaining obligation.
The General Counsel argues that all material issues
have been previously decided. We agree with the
General Counsel.
The record, including the record in Case 32-
RC-1575, reveals that an election was held 3 June
1982 pursuant to a Stipulation for Certification
Upon Consent Election issued by the Regional Di-
rector for Region 32. The tally of ballots shows
that of approximately 60 eligible voters, 38 cast
ballots for and 26 ballots against representation by
the Union. There were seven challenged ballots,
which were not determinative of the results of the
election. The Respondent filed objections to the
election 7 and 16 June 1982. The Regional Direc-
tor investigated those objections and issued a
report 26 July 1982 overruling, in part, three of the
Respondent's objections and ordering a hearing on
Objection 2, dealing with the unequal number of
election observers, and those parts of Objections 1,
3, and 4 dealing with allegations of union misrepre-
sentation. On 29 September 1982 the Regional Di-
rector issued a supplemental report in light of the
intervening Board decision in Midland Life Insur-
ance Co., 263 NLRB 127 (1982). The report recom-
mended that Midland obviated the need for a hear-
ing on the alleged misrepresentations and limited
the scope of the hearing to Objection 2. On 11 Jan-
uary 1983 the Board adopted the Regional Direc-
tor's Supplemental Report and Recommendations
on Objections and ordered a hearing on Objection
2. On 7 September 1983 the hearing officer issued
his report recommending that Objection 2 be over-
ruled. On 26 September 1983 the Company filed
exceptions to the recommendation. On 28 March
1984 the Board, by a three-member panel, adopted
the hearing officer's recommendations and certified
the Union as the exclusive bargaining representa-
tive of the employees in the appropriate unit. (269
NLRB 578.)
By letter dated 6 April 1984 the Union requested
the Company to bargain. Since on or about 12
April 1984 the Company has failed to bargain with
the Union.
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(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
271 NLRB No. 168
1058
BEST PRODUCTS CO.
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.2 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.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a Virginia corporation, is en-
gaged in the retail sale of general merchandise, and
has an office and place of business in Campbell,
California. During the past 12 months it derived
gross revenues in excess of $500,000, and pur-
chased and received goods or services valued in
excess of $5000, originating outside the State of
California. We find that the Company is an em-
ployer 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 Sec-
tion 2(5) of the Act.
II1. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 3 June 1982 the
Union was certified 28 March 1984 as the collec-
tive-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time employees
employed by the Employer at its 550 W. Ham-
ilton Avenue, Campbell, California, facility;
excluding all confidential employees, 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 6 April 1984 the Union has requested the
Company to bargain, and since 12 April 1984 the
Company has refused. We find that this refusal
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
2 The Respondent contends that employee turnover since the certifica-
tion constitutes special circumstances swarranting a new hearing. It is w:ell
settled, however, that in these circumstances employee turnover subse-
quent to an election does not affect the validity of the certification.
Gunion Co., 227 NLRB 1875, 1876 (1977). enfd 596 F.2d 175 (6th Cir.
1979); Mr. B. IGA. Inc., 255 NLRB 1311 (1981). enfd. 677 F.2d 32 (8th
Cir. 1982).
CONCLUSIONS OF LAW
By refusing on and after 12 April 1984 to bargain
with the Union as the exclusive collective-bargain-
ing 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).
ORDER
The National Labor Relations Board orders that
the Respondent, Best Products Company, Inc.,
Campbell, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Food and
Commercial Workers Local 428, AFL-CIO, as the
exclusive bargaining representative of the employ-
ees 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 full-time and regular part-time employees
employed by the Employer at its 550 W. Ham-
ilton Avenue, Campbell, California, facility;
excluding all confidential employees, guards,
and supervisors as defined in the Act.
1059
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its facility in Campbell, California,
copies of the attached notice marked "Appendix."3
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.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 United
Food and Commercial Workers Local 428, AFL-
CIO, as the exclusive representative of the employ-
ees 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 full-time and regular part-time employees
employed by the Employer at its 550 W. Ham-
ilton Avenue, Campbell, California, facility;
excluding all confidential employees, guards,
and supervisors as defined in the Act.
BEST PRODUCTS COMPANY, INC.
1060