Carlton McLendon Furniture Co., Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1972

200 N.L.R.B. 955 (N.L.R.B. 1972)

CARLTON MCLENDON FURNITURE 955
Carlton McLendon Furniture Co , Inc and United
Brotherhood of Carpenters and Joiners of America,
Southern Council of Industrial Workers, AFL-
CIO Case 15-CA-4582
December 18, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on July 21, 1972, by United
Brotherhood of Carpenters and Joiners of America,
Southern Council of Industrial Workers, AFL-CIO,
herein called the Union, and duly served on Carlton
McLendon Furniture Co, Inc, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 15, issued a complaint on August 15, 1972,
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
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
complaint alleges in substance that on June 20, 1972,
following a Board election in Case 15-RC-4753 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate, 2 and that, commenc-
ing on or about July 14, 1972, 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 August 23, 1972, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint
On September 11, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment Subsequently, on September 22,
1972, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted Respon-
dent thereafter filed a response to Notice To Show
Cause
Pursuant to the provisions of Section 3(b) of the
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Official notice is taken of the record in the representation proceeding
Case 15-RC-4753 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
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 in its response to
the Notice to Show Cause, Respondent denies that
the Union is the exclusive bargaining representative
of a majority of its employees and alleges that the
Board's denial of its right to a hearing is in violation
of due process We do not agree
The record in Case 15-RC-4753 indicates that in
an election conducted pursuant to a Regional
Director's Decision and Direction of Election, of
approximately 105 eligible voters, 41 voted for, and
38 against, the Union, and 13 ballots were chal-
lenged Respondent thereupon filed objections to
conduct affecting the results of the election and
requested a hearing on any credibility issues raised
by the objections The objections alleged, in sub-
stance, that (1) a supervisor assisted the Union in its
organizational efforts, (2) the Union distributed
handbills misrepresenting the results of an election at
another plant within 24 hours of the election herein,
(3) a union observer, in the presence of other
employees on the voting line, turned away several
eligible voters, and (4) the Union caused a crowd of
nonemployees to assemble at the plant entrance 1
hour before the election to voice their approval of the
Union
After an investigation the Regional Director, on
February 29, 1972, issued a Supplemental Decision
and Order Directing the Counting of Challenged
Ballots in which he overruled Respondent's objec-
tions in their entirety, overruled the challenge to one
ballot, sustained challenges to seven ballots, and
reserved decision with respect to five challenged
ballots The eligibility of two challenged voters
awaits the determination of the Board in pending
unfair labor practice cases and the eligibility of three
other voters awaits the expiration of the appeal
period or the General Counsel's action on appeal
from the Regional Director's dismissal of unfair
labor practice charges The Regional Director further
ruled that if the General Counsel did not act
favorably on the appeal before him, or if the other
two appeals are not perfected, the challenges to the
ballots of the three voters are sustained In the event
that the Board found to be eligible voters any of the
LTV Electrosystems Inc 166 NLRB 938 enfd 388 F 2d 683 (C A 4 1968)
Golden Age Beverage Co 167 NLRB 151 Intertype Co v Penello 269
F Supp 573 (D C Va. 1967), Follett Corp 164 NLRB 378, enfd 397 F 2d
91 (C A 7, 1968), Sec 9(d) of the NLRA
200 NLRB No 126
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
five challenged voters with respect to whom decision
has been reserved, the Regional Director stated that
consideration will be given to issuance of a Second
Supplemental Decision following the procedure used
in International Ladies' Garment Workers' Union, 137
NLRB 1681
Respondent, on March 9, 1972, filed with the
Board a Request for Review of the Regional
Director's Supplemental Decision and Order Direct-
ing Counting of Challenged Ballots alleging, inter
aha, that the refusal to grant a hearing was an abuse
of discretion and violated due process On May 8,
1972, the Board denied Respondent's Request for
Review as raising no substantial issues warranting
review
On May 24, 1972, the Regional Director, acting in
accordance with the case cited above, issued a
Second Supplemental Decision and Order Directing
Counting of Challenged Ballots in which he ordered
the counting of the ballots of three challenged voters
on whose behalf he had issued a complaint alleging
unlawful discharges in violation of Section 8(a)(3) of
the Act 3 On June 12, 1972, a counting of the three
challenged ballots revealed that all three had been
cast for the Union and a revised tally of ballots
indicated that a majority of the valid ballots, by a
vote of 44 to 39 had been cast for the Union The
Regional Director, accordingly, certified the Union
as the exclusive representative of the employees in an
appropriate unit on June 20, 1972 Thereafter, on
August 24, 1972, the Respondent filed with the
Board a Motion for Reconsideration of Denial of
Employer's Request for Review on the ground
allegedly new and clear-cut precedent requires a
hearing On September 5, 1972, the Board denied this
motion as lacking in merit
It thus appears that by its answer to the complaint
and its response to the Notice to Show Cause
Respondent is attempting to relitigate the issues
raised and determine in the previous representation
proceeding It is well established that parties do not
have an absolute right to a hearing on objections to
an election It is only when the moving party presents
a prima facie showing of "substantial and material
issues" which would warrant setting aside the
election that he is entitled to an evidentiary hearing 4
It is clear that absent arbitrary action, this qualified
right to a hearing satisfies all statutory and constitu-
tional requirements 5
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
3 The General Counsel had sustained an appeal for the dismissal of
unfair labor practice charges against one challenged voter whose vote was
therefore counted with the other two challenged voters who also were
subject to unfair labor practice charges
4 Allied Foods Inc 189 NLRB No 79 and cases cited in in 6, Clarytona
Manor Inc 192 NLRB No 114, and cases cited in fn 3
special circumstances 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 6
All issues raised by the Respondent in this
proceeding 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 which is properly litigable in this unfair
labor practice proceeding We shall, accordingly,
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 THE RESPONDENT
Respondent is an Alabama corporation with its
principal office and place of business in Montgomery,
Alabama, where it is engaged in the manufacture,
sale, and distribution of furniture During the past 12
months, Respondent sold and shipped directly to
customers located outside the State of Alabama
furniture valued in excess of $50,000
We find, on the basis of the foregoing, that
Respondent 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 INVOLVED
United Brotherhood of Carpenters and Joiners of
America, Southern Council of Industrial Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
1 The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
5 Amalgamated Clothing Workers of America v N L R B 424 F 2d 818
828 (C A D C 1970) N L R B v Golden Age Beverage Company 415 F 2d
26 32 (CA 5 1969)
6 See Pittsburgh Plate Glass Co v N L R B 313 U S 146 162 (1941)
Rules and Regulations of the Board Sees 102 67(f) and 102 69(c)
CARLTON MCLENDON FURNITURE
ing purposes within the meaning of Section 9(b) of
the Act
All production and maintenance employees
employed by Respondent at its Montgomery,
Alabama, facility, including shipping and receiv-
ing employees, combination local truckdrivers,
and the inventory clerk, excluding office clerical
employees, professional and technical employees,
guards and supervisors as defined in the Act
2 The certification
On January 13, 1972, 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 15 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 20, 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 July 10, 1972, and at all
times thereafter, the Union has requested the
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 July 14, 1972, 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 representa-
tive for collective bargaining of all employees in said
unit
Accordingly, we find that the Respondent has,
since July 14, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent 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 its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce
V THE REMEDY
957
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
appropriate unit will be accorded the services of their
selected 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
recognized bargaining representative in the appropri-
ate unit See Mar-Jac Poultry Company, Inc, 136
NLRB 785, Commerce Company d/b/a Lamar Hotel,
140 NLRB 226 , 229, enfd 328 F 2d 600 (C A 5),
cert denied 379 U S 817 , Burnett Construction
Company, 149 NLRB 1419 , 1421, enfd 350 F 2d 57
(C A 10)
The Board , upon the basis of the foregoing facts
and the entire record , makes the following
CONCLUSIONS OF LAW
1 Carlton McLendon Furniture Co, Inc, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 United Brotherhood of Carpenters and Joiners
of America, Southern Council of Industrial Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act
3 All production and maintenance employees
employed by Respondent at its Montgomery, Ala-
bama, facility, including shipping and receiving
employees, combination local truckdrivers, and the
inventory clerk, excluding office clerical employees,
professional and technical 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 June 20, 1972, 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 July 14, 1972, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 By the aforesaid refusal to bargain, Respon- dent to insure that said notices are not altered,
dent has interfered with, restrained, and coerced, and defaced, or covered by any other material
is interfering with, restraining, and coercing, employ- (c) Notify the Regional Director for Region 15 in
ees in the exercise of the rights guaranteed to them in writing, within 20 days from the date of this Order,
Section 7 of the Act, and thereby has engaged in and what steps have been taken to comply herewith
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 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
Relations Board hereby orders that Respondent,
Carlton McLendon Furniture Co, 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
conditions of employment with United Brotherhood
of Carpenters and Joiners of America, Southern
Council of Industrial Workers, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit
All production and maintenance employees
employed by Respondent at its Montgomery,
Alabama, facility, including shipping and receiv-
ing employees, combination local truckdrivers,
and the inventory clerk, excluding office clerical
employees, professional and technical employees,
guards and supervisors as defined 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 facility in Montgomery, Alabama,
copies of the attached notice marked "Appendix "7
Copies of said notice, on forms provided by the
Regional Director for Region 15, 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 Respon-
7 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 United
Brotherhood of Carpenters and Joiners of Ameri-
ca, Southern Council of Industrial Workers,
AFL-CIO, 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 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
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 agree-
ment The bargaining unit is
All production and maintenance employ-
ees employed by Respondent at its Mont-
gomery, Alabama, facility, including ship-
ping and receiving employees, combination
local truckdrivers, and the inventory clerk,
excluding office clerical employees, profes-
sional and technical employees, guards and
supervisors as defined in the Act
CARLTON MCLENDON
FURNITURE Co, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
CARLTON MCLENDON FURNITURE 959
Any questions concerning this notice or compli- Suite 2700, New Orleans, Louisiana 70113, Tele-
ance with its provisions may be directed to the phone 504-527-6354
Board's Office, Plaza Tower, 1001 Howard Avenue,