Calco-Hawaiian Plastic Fabricators, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1979

241 N.L.R.B. 1060 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Calco-Hawaiian Plastic Fabricators, Inc. and Com-
munications Workers of America, Local 9415,
AFL-CIO. Case 20-CA-14124
April 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AN) PENELLO
Upon a charge filed on September 29, 1978, by
Communications Workers of America, Local 9415,
AFL-CIO, herein called the Union, and duly served
on Calco-Hawaiian Plastic Fabricators, Inc., a/k/a
Calco-Imports-Exports, Inc., d/b/a Calco-Hawaiian
Mfg., herein called Respondent,' the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 20, issued a complaint on
October 13, 1978, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National 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 August 24, 1978,
following a Board election in Case 20-RC- 14558, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate2 and that, commencing
on or about September 15, 1978, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On October 25, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On November 20, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
i Respondent denies that its correct name is Calco-Hawaiian Plastic Fab-
ricators. Inc., and refers to itself as Calco-lmports-Exports, Inc., d/b/a
Calco-Hawaiian Mfg. It is noted that Respondent signed the Stipulation for
Certification Upon Consent Election as Calco-Hawaiian Fabricators. Inc.,
and has not objected to such name until its answer to the complaint. Because
Respondent does not contend that it is not the Employer who signed the
stipulation, this Decision and Order shall reflect Respondent's name as
stated in its answer.
2 Official notice is taken of the record in the representation proceeding,
Case 20- RC-14558. 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
I.TV Electrrslssems. Inc.. 166 NLRB 938 1967). enfd. 388 F.2d 683 (4th C(ir.
1968): Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969): InterOtpe Co v. Penello, 269 F.Supp. 573 D.C.Va., 1967)1
Follett Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968): Sec
9(d) of, the NLRA, as amended.
Summary Judgment. Subsequently, on December 15,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause and
Cross-Motion for Summary Judgment.3 On January
15, 1979, the General Counsel filed opposition to
('ross-Motion for Summary Judgment.
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 to No-
tice To Show Cause, Respondent admits the request
and the refusal to bargain. It, however, asserts as an
"affirmative defense" that the Union's certification
was improper on the basis of Respondent's objections
to the election in the underlying representation pro-
ceeding. Respondent further contends that the failure
of the Board to grant a hearing on its objections de-
prived it of due process and that it is entitled to a
hearing on these issues.
Review of the record herein, including the record in
Case 20-RC-14558. reveals that an election con-
ducted pursuant to a Stipulation for Certification
Upon Consent Election on March 30, 1978, resulted
in a vote of nine to five in favor of the Union. There
were five challenged ballots, which were sufficient in
number to affect the results of the election. There-
after, Respondent filed timely objections to the con-
duct of the election alleging, in substance, that ( I ) the
Union threatened, coerced, and intimidated employ-
ees; (2) the Union made promises of benefits to the
employees; (3) the Union in its campaign literature
made material misrepresentation of fact to employees
involving the National Labor Relations Board and its
processes.
After an investigation, the Acting Regional Direc-
tor issued a Report on Objections and Challenged
Ballots on May 5, 1978, in which he recommended
I Respondent in its cross-motion urges the Board to rescind its prior action
in adopting the Acting Regional Director's Report on Objections and Chal-
lenged Ballots of May 15, 1978. which underlies the issues involved in the
instant case. The Board by its Decision. Direction, and Order in Case 20-
RC 14558 dated August 8, 1978, specifically adopted the findings and rec-
ommendations contained in the Acting Regional Director's report. The
Board considered Respondent's exceptions and rejected them. Nothing has
cx:curred since that time which warrants reconsideration of the same issues.
and Respondent's contention that the Board's recent decision in General Knit
of California, Inc., 239 NLRB 619 (1978), requires such reconsideration lacks
merit.
241 NLRB No. 171
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CAl'CO-HAWAIIAN PLASTI(' FABRICATORS
that Respondent's objections be overruled in their en-
tirety4 and made recommendations regarding the
challenged ballots. Thereafter. Respondent filed ex-
ceptions to the Acting Regional Director's report. On
August 8, 1978, the Board, having considered the
Acting Regional Director's report. Respondent's ex-
ceptions thereto, and the entire record, adopted the
Acting Regional Director's findings and recommen-
dations. The Board directed the Regional Director to
open the ballots of Theresa Barriga, Marie Ofelia
Renderos, Alberto Sevillano, and Anna Varagas and,
if one of the ballots were cast for the Petitioner, the
Petitioner was to be certified. All four ballots were for
the Petitioner, and the Regional Director certified the
Union as exclusive bargaining agent of employees in
the unit stipulated to be appropriate. It thus appears
that Respondent is attempting in this proceeding to
relitigate issues fully litigated and finally determined
in the representation proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances, a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceedings
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the General Counsel's Motion
for Summary Judgment and deny Respondent's
Cross-Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. 111E BUSINESS OF RSPONDENI
Respondent, a California corporation with its prin-
cipal office located in South San Francisco, Califor-
nia, is engaged in the manufacture and wholesale sale
of water bed mattresses and liners at its facility in
South San Francisco, California. During the past cal-
endar year Respondent sold and shipped goods val-
' Respondent withdrew ObJection I and presented no evidence concerning
Objection 2.
«See Pittsburgh Plate Glas Co s. V .R R 313 US. 146, 162 (1941):
Rules and Regulations of the Board. Secs 102.67(f) and 10 2.691c).
ued in excess of $50,000 directly to customers located
outside the State of California.
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
effectuate the policies of the Act to assert jurisdiction
herein.
II. THiE ABOR OR(GANIZATION INVO()IV)
Communications Workers of America, Local 9415,
AFL-CIO. is a labor organization within the mean-
ing of Section 2(5) of the Act.
Ill. HE UNFAIR LABOR PRA('II(ES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees,
shipping, receiving and warehouse employees
and truckdrivers of the Employer employed at its
facility located at 148 Beacon Street. South San
Francisco, California: excluding office clerical
employees, professional employees, managerial
employees, guards and supervisors as defined in
the Act.
2. The certification
On March 30. 1978, 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 20, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on August 24, 1978, and the Union contin-
ues 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 August 28, 1978, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about September 15, 1978. and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
1061
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
September 15, 1978, 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 prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
IV. THE EIFECT 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 ap-
propriate 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 se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/bla Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); 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. Calco-Imports-Exports, Inc., d/b/a Calco-Ha-
waiian Mfg., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Communications Workers of America, Local
9415, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees;
shipping, receiving, and warehouse employees; and
truckdrivers of the Employer employed at its facility
located at 148 Beacon Street, South San Francisco,
California, excluding office clerical employees, profes-
sional employees, managerial employees, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since August 24, 1978, the above-named labor
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 September 15, 1978,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(l) 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, Calco-
Imports-Exports, Inc., d/b/a Calco-Hawaiian Mfg.,
South San Francisco, California, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Communications Work-
ers of America, Local 9415, AFL-CIO, as the exclu-
sive bargaining representative of its employees in the
following appropriate unite:
All production and maintenance employees,
shipping, receiving and warehouse employees
and truckdrivers of the Employer employed at its
facility located at 148 Beacon Street, South San
Francisco, California; excluding office clerical
employees, professional employees, managerial
employees, guards and supervisors as defined in
the Act.
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CALCO-HAWAIIAN PLASTIC FABRICATORS
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its 148 Beacon Street, South San Fran-
cisco, California, facility copies of the attached notice
marked "Appendix." 6 Copies of said notice, on forms
provided by the Regional Director for Region 20, af-
ter being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 20 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Com-
munications Workers of America, Local 9415,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT in any like or related manner
interfere 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 representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, hours, and other terms and conditions or
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees,
shipping, receiving and warehouse employees
and truckdrivers of the Employer employed at
its facility located at 148 Beacon Street, South
San Francisco, California; excluding office
clerical employees, professional employees,
managerial employees, guards and supervisors
as defined in the Act.
CALCO-IMPORTS-ExPORTS, INC., D/B/A
CALCO-HAwAIIAN MFG.
1063