Hickory Spring Mfg., Co.

National Labor Relations Board - Board Decisions

Feb 20, 1980

247 N.L.R.B. 1208 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hickory Springs Manufacturing Company and Gener-
al Drivers, Warehousemen, Dockmen and Helpers,
Local Union No. 373, affiliated with International
Brotherhood of Teamsters. Case 26-CA-8033
February 20, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on September 10, 1979, and a
first amended charge filed on September 17, 1979, by
General Drivers, Warehousemen, Dockmen and Help-
ers, Local Union No. 373, affiliated with International
Brotherhood of Teamsters, herein called the Union,
and duly served on Hickory Springs Manufacturing
Company, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 26, issued a
complaint on September 21, 1979, 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, amended
charge, and 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 December 6,
1978, following a Board election in Case 26-RC-5653,
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' and that
commencing on or about August 13, 1979, 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 3, 1979, Respondent filed its answer to the
complaint admitting in part and denying in part the
allegations in the complaint.
On October 22, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 2,
1979, 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. Respondent thereaf-
ter filed a response to the Notice To Show Cause.
' Official notice is taken of the record in the representation proceeding, Case
26-RC-5653, as the term "record" is defined in Sees. 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 (4th Cir.
247 NLRB No. 165
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 answer to the complaint and response to the
Notice To Show Cause, Respondent asserts that the
Union's certification was improperly issued in Case
26-RC-5653 because the Union engaged in conduct
which destroyed the laboratory conditions necessary
for the holding of a fair and valid election. In this
regard Respondent contends that the Board abused its
discretion by refusing to set aside the January 6, 1978,
election held therein on the basis of Respondent's
objections or by refusing to order a hearing for the
purpose of resolving the issues relating to the conduct
of that election as raised by Respondent's Objections
1, 2, 3, and 4. Respondent admits in its answer that it
has refused and continues to refuse to bargain with the
Union but alleges that it has no legal obligation to do
so.
The General Counsel contends that Respondent's
answer raises no issues other than those fully consid-
ered and decided by the Board in the underlying
representation proceeding, that Respondent is seeking
to relitigate such issues, and that Respondent makes
no claim that it has any newly discovered or previous-
ly unavailable evidence to present in support of its
defenses. In addition, the General Counsel argues that
there are no issues raised by Respondent's answer
which require a hearing.
Our review of the record herein, including the
record in Case 26-RC-5653, discloses that the Union
filed a petition for an election on November 10, 1977.
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on January 6, 1978, among the employees
in the following appropriate unit:
All over-the-road truck drivers employed at
Respondent's present Fort Smith, Arkansas, loca-
tion, excluding all production and maintenance
employees, office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
The tally of ballots served upon the parties at the
conclusion of the election showed that 11 votes were
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello. 269 F.Supp. 573 (D.C.Va. 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
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HICKORY SPRINGS MANUFACTURING COMPANY
cast for and 9 against the Union, with 1 challenged
ballot.
On January 13, 1978, Respondent filed timely
objections to conduct affecting the results of the
election. After an investigation of the objections the
Regional Director for Region 26 issued a Report on
Objections on February 28, 1978, in which he recom-
mended a hearing be held for the purpose of resolving
the issues raised in Respondent's Objection 2, and that
all of the other objections be overruled.
On March 13, 1978, Respondent timely filed
exceptions to the Regional Director's Report on
Objections together with a brief in support thereof. On
March 16, 1978, the Union filed exceptions to the
Regional Director's Report on Objections insofar as
he recommended a hearing on Respondent's Objection
2.
The Board, on December 6, 1978, issued a Decision
and Certification of Representative in Case 26-RC-
5653, in which it certified the Union as the exclusive
bargaining representative of the employees in the
aforementioned appropriate unit.2
Subsequently, by letter dated August 6, 1979, the
Union requested Respondent to meet with it for
purposes of collective bargaining. Respondent replied
by letter dated August 13, 1979, that it refused to
bargain with the Union. Respondent has refused at all
times since August 13, 1979, to bargain with the
Union.
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.'
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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
Respondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record the Board makes
the following:
'239 NLRB 641.
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)
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is and has been at all times material
herein a North Carolina corporation engaged in the
operation of a factory at Fort Smith, Arkansas, where
it manufactures furniture components. Annually, Re-
spondent purchases and receives goods valued in
excess of $50,000 directly from sources located outside
the State of Arkansas. Also, Respondent annually sells
and ships from its Fort Smith, Arkansas, facility
products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Arkan-
sas.
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. THE LABOR ORGANIZATION INVOLVED
General Drivers, Warehousemen, Dockmen and
Helpers, Local Union No. 373, affiliated with Interna-
tional Brotherhood of Teamsters, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. 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 over-the-road truck drivers employed at
Respondent's present Fort Smith, Arkansas, loca-
tion, excluding all production and maintenance
employees, office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
2. The certification
On January 6, 1978, 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 26, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative of the employees
in said unit on December 6, 1978, 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 August 6, 1979, and at all
times thereafter the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
August 13, 1979, and continuing at all times thereafter
to date Respondent has refused and continues to
refuse to recognize and bargain with the Union as the
exclusive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
August 13, 1979, 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 Respondent 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 Ill,
above, occurring in connection with its operations
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 commerce.
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 appro-
priate 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785
(1962); Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817; 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. Hickory Springs Manufacturing Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Drivers, Warehousemen, Dockmen and
Helpers, Local Union No. 373, affiliated with Interna-
tional Brotherhood of Teamsters, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All over-the-road truckdrivers employed at Re-
spondent's present Fort Smith, Arkansas, location
excluding all production and maintenance employees,
office clerical employees, guards and supervisors as
defined in the Act, and all other employees constitute
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since December 6, 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 August 13, 1979, 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.
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
Section 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
Relations Board hereby orders that the Respondent,
Hickory Springs Manufacturing Company, Fort
Smith, Arkansas, its officers, agents, successors, and
assigns shall:
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HICKORY SPRINGS MANUFACTURING COMPANY
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with General Drivers, Warehousemen,
Dockmen and Helpers, Local Union No. 373, affili-
ated with International Brotherhood of Teamsters, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All over-the-road truck drivers employed at
Respondent's present Fort Smith, Arkansas, loca-
tion, excluding all production and maintenance
employees, office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
(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 Fort Smith, Arkansas, location copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional
Director for Region 26, 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 26, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER PENELLO, dissenting:
For the reasons fully explicated in my dissenting
opinion in the underlying representation proceeding' I
would deny the General Counsel's Motion for Sum-
mary Judgment.
' 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 Hoard" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing all Order of the National
Labor Relations Board."
239 NLRB 641
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 Gener-
al Drivers, Warehousemen, Dockmen and Help-
ers, Local Union No. 373, affiliated with Interna-
tional Brotherhood of Teamsters, 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 over-the-road truck drivers employed by us
at our present Fort Smith, Arkansas, location,
excluding all production and maintenance em-
ployees, office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
HICKORY SPRINGS MANUFACTURING
COMPANY
1211