Ethan Ellen, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1977

231 N.L.R.B. 132 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ethan Allen, Inc. and United Furniture Workers of
America, AFL-CIO. Case 16-CA-7064
August 4, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Upon a charge filed on March 4, 1977, by United
Furniture Workers of America, AFL-CIO, herein
called the Union, and duly served on Ethan Allen,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 16, issued a
complaint on April 8, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative 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 November 11,
1976, following a Board election in Case 16-RC-
7137, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about November 29, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On April 12, 1977, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
Respondent averred that the Board's certification
was improper for the following reasons: (a) Respon-
dent was denied its right to cross-examine under oath
those persons upon whose self-serving and factually
inaccurate affidavits the Board relied on to dismiss
Respondent's objections to the election; and (b) a
high-ranking company official unlawfully supported
the Union in the election without the knowledge or
consent of Respondent, and such support destroyed
the laboratory conditions necessary for a fair, free,
and valid election.
On April 27, 1977, counsel for the General Counsel
filed directly with the Board a motion to transfer the
case to and continue the proceeding before the Board
' Official notice is taken of the record in the representation proceeding,
Case 16-RC-7137, 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 (C.A. 4,
231 NLRB No. 24
and for summary judgment. Subsequently, on May
16, 1977, 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 Judgement should not be granted. Respon-
dent thereafter filed a motion to remand, a motion
for oral argument and permission to file amicus
briefs, and a brief in opposition to the Motion for
Summary Judgment. The General Counsel filed an
opposition to these motions.
Pursuant to the provisions of Section 3(b) of the
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 response to the Notice To Show Cause,
Respondent contends that there exists substantial
and material issues of fact which have not been
resolved by a hearing and that due process requires
that Respondent be given a hearing on the issues
before being found guilty of an unfair labor practice.
Review of the record herein reveals that in Case
16-RC-7137, a Stipulation for Certification Upon
Consent Election was approved by the Regional
Director and the election was conducted on April 8,
1976. On May 4, 1976, Respondent filed objections
to conduct affecting the results of the election. The
tally of ballots showed that of approximately 65
eligible voters 33 cast ballots for the Union, 32 cast
ballots against the Union, and 2 ballots were
challenged. The Regional Director issued his Report
on Objections and Challenges on June 29, 1976,
recommending that the objections be overruled, that
the challenges be sustained, and that the Union be
certified, and on November 11, 1976, the Board
issued a Decision and Certification of Representa-
tive, certifying the Union as the collective-bargaining
representative of the employees in the appropriate
unit (not reported in bound volumes of Board
Decisions).
Following a request by the Union on or about
November 29, 1976, that the Respondent bargain
collectively in good faith with respect to rates of pay,
hours, and other terms and conditions of employ-
ment, the Respondent refused to recognize and
bargain in good faith with the Union as the exclusive
bargaining representative of its employees in the
certified unit. Respondent has refused to bargain
with the Union since November 29, 1976.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7. 1968); Sec.
9(d) of the NLRA, as amended.
132
ETHAN ALLEN, INC.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding,3 and the Respon-
dent 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. 4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under and
existing by virtue of the laws of the State of New
York, maintaining a place of business and produc-
tion facility at Atoka, Oklahoma, where it is engaged
in the manufacture and distribution of wood furni-
ture and custom upholstered furniture and the
distribution of related home decorating accessories.
During the past 12 months, which period is repre-
sentative of all times material herein, Respondent,
in the course and conduct of its business operations,
purchased, transferred, and delivered to its Atoka,
Oklahoma, facility goods and materials valued in
excess of $50,000 which were transported to said
facility directly from States of the United States
other than the State of Oklahoma. During the same
period of time, Respondent manufactured, sold, and
distributed from its Atoka, Oklahoma, facility wood
and upholstered furniture and related home decorat-
ing accessories valued in excess of $50,000, which
were shipped from said plant directly to points
outside the State of Oklahoma.
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
' See Pittshurgh 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).
:' In the representation proceeding, Respondent contended in its
objections that ( I } union representatives and agents made false, misleading,
and defamatory statements which altered the laboratory conditions for a
valid election, and that these statements were not made known to
it will effectuate the policies of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees,
including distribution employees employed by
Respondent at its Atoka Division Plant, Venita
Allen Parkway, Atoka, Oklahoma, excluding all
office clerical employees, timestudy employees,
professional and technical employees, over-the-
road truckdrivers, guards, watchmen, and super-
visors as defined in the Act.
2. The certification
On April 28, 1976, 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 16, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent.
The Union was certified as the collective-bargain-
ing representative of the employees in said unit on
November 11, 1976, 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 November 29, 1976, 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 November 29, 1976, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
Respondent until too late for an adequate response, and (2) the plant
supenntendent campaigned on behalf of the Union without authorization.
4 We deny Respondent's motion to remand and motion for oral
argument and permission to file amicus briefs as the record and briefs
adequately present the positions of the parties.
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that the Respondent has,
since November 29, 1976, 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
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
Ill, above, occurring in connection with its opera-
tions described in section 1, 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
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 commenc-
es 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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1972), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), 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. Ethan Allen, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Furniture Workers of America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees,
including distribution employees employed by Re-
spondent at its Atoka Division Plant, Venita Allen
Parkway, Atoka, Oklahoma, excluding all office
clerical employees, timestudy employees, profession-
al and technical employees, over-the-road truckdri-
vers, guards, watchmen, 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 November 11, 1976, 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 November 29, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
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 the Respondent,
Ethan Allen, Inc., Atoka, Oklahoma, 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 Furniture
Workers of America, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees,
including distribution employees employed by
Respondent at its Atoka Division Plant, Venita
Allen Parkway, Atoka, Oklahoma, excluding all
134
ETHAN ALLEN, INC.
office clerical employees, timestudy employees,
professional and technical employees, over-the-
road truckdrivers, guards, watchmen, and super-
visors 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 Atoka Division Plant, Atoka,
Oklahoma, copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms
provided by the Regional Director for Region 16,
after being duly signed by Respondent's representa-
tive, 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 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
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 OIDER 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
Furniture Workers of America, 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 uaderstanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees, including distribution employees em-
ployed by Respondent at its Atoka Division
Plant, Venita Allen Parkway, Atoka, Okla-
homa, excluding all office clerical employ-
ees, timestudy employes, professional and
technical employees, over-the-road truckdri-
vers, guards, watchmen, and supervisors as
defined in the Act.
ETHAN ALLEN, INC.
135