Kabinart Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 902 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kabinart Corporation and Laborers' Local Union
#386, Laborers' International Union of North
America, AFL-CIO. Case 26-CA-7271
September 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELI.O
AND TRUESDALE
Upon a charge filed on June 30, 1978. by Laborers'
Local Union =386, Laborers' International Union of
North America, AFL-CIO, herein called the Union,
and duly served on Kabinart Corporation, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 26, issued a complaint on July 18.
1978, 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 com-
plaint alleges in substance that on June 12, 1978, f)l-
lowing a Board election in Case 26 RC 5693, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate:' and that, commencing
on or about June 19, 1978, and at all times thereafter,
Respondent has refused and continues to date to re-
fuse to bargain collectively with the Union as the ex-
clusive bargaining representative, although the Union
has requested and is requesting it to do so. On July
26, 1978, Respondent filed its answer to the complaint
admitting in part and denying in part the allegations
in the complaint.
On August 14, 1978. counsel foir the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 25, 1978,
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 thereafter filed a
response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
lOfficial notice is taken of the record in the representatiln proceeding,
Case 26 RC 5693. 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
LTI Electrot. solemnv. InA., 166 N.RB 938 (1967). enid. 388 X1.2d 683 (('.A. 4,
1968), Golden .4ge Beverage C.. 167 NLRB 151 11967), enfd. 415 F 2d 26
(( A. 5, 1969), Intertpe (Co. s Penello, 269 .Supp 573 (I)('.Va, 1967).
oilcett (Corp.. 164 NLRB 378 (1967). enfd. 397 1 2d 91 (('A. 7. 1968); Sec.
9(d) ofi the NLRA, as amended.
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, Respondent admits
that on June 12, 1978, the Board certified the Union
as the exclusive bargaining representative in an ap-
propriate unit, but denies that the Union is the exclu-
sive bargaining representative of such employees, de-
nies that the Union has requested it to bargain, and
denies that its refusal to bargain with the Union vio-
lates Section 8(a)(5) and (1) of the Act. In its response
to the Notice To Show Cause, however, Respondent
admits that on June 22, 1978, the Union requested it
to bargain and that by letter dated June 28, 1978, it
declined to do so on the ground that the Board's cer-
tification of the Union was invalid. It thus clearly
appears that Respondent's defense is based on objec-
tions to union conduct which it argues invalidated the
election.
Pursuant to a Stipulation for Certification Upon
Consent Election the Regional Director for Region 26
conducted the election by secret ballot on March 7,
1978. A majority of those employees in the stipulated
unit who voted selected the Union as their represent-
ative for the purposes of' collective bargaining. The
tally of ballots revealed that out of approximately 86
eligible voters 78 valid ballots were cast; 49 for the
Union and 29 against, with 2 challenged ballots.
On March 14, 1978, Respondent filed timely objec-
tions to the conduct of the election alleging that cer-
tain union activities materially affected the results of
the election. The Regional Director conducted an in-
vestigation which included a full opportunity for the
parties to submit testimony and other evidence bear-
ing on the objections. On March 31, 1978, the Re-
gional Director issued his report with the recommen-
dation that the objections be overruled. Respondent
filed exceptions to the Regional Director's recommen-
dation. Finally, on June 12, 1978, the Board issued a
Decision and Certification of Representative which
adopted the Regional Director's report and recom-
mendations. The Board further certified the Union as
the exclusive collective-bargaining representative of
all employees in the appropriate unit. It thus appears
that Respondent is endeavoring to relitigate matters
considered and determined in the representation pro-
ceeding.
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 relitigate
238 NLRB No. 126
902
KABINART CORPORATION
issues which were or could have been litigated in a
prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not prop-
erly offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence,3 nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the deci-
sion made in the representation proceeding. We
therefore find that Respondent has not raised any is-
sue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the Mo-
tion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF' FACT
I. TIlti BUSINESS OF RESPONDEN1
Respondent, a Tennessee corporation, is engaged
in the manufacture and sale of wooden cabinet equip-
ment at its facility in Nashville, Tennessee, which is
the only facility involved in this proceeding. During
the past calendar year, which period is representative
of its operations during all times material hereto, Re-
spondent, in the course and conduct of its business
operations, purchased and caused to be transported
and delivered to its Nashville, Tennessee, facility di-
rectly from points located outside the State of Ten-
nessee goods and materials valued in excess of
$50,000 and sold and shipped from its Nashville, Ten-
nessee, facility products valued in excess of $50,000 to
points located outside of the State of Tennessee.
Moreover, during that same period of time, Respon-
dent's gross volume of sales exceeded $500,000.
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.
ISee Pittsburgh Plate Glast Co v. L. RB, 313 U.S 146. 162 (1941):
Rules and Regulations of the Board. Sees 102 67(f) and 102.69(c).
' In its response to the Notice To Show Cause, Respondent claims that it
"has learned of additional evidence" since the filing of its objections in the
representation matter and that it intends to introduce such evidence in the
unfair labor practice proceeding here. The Rules and Regulations of the
Board, Sec. 102.65(e), however. state that: "A motion to reopen the record
shall state briefly the additional evidence sought to be adduced. why it was
not presented previously, and what result it would require, if adduced and
credited." Respondent has failed to comply with any of these requirements.
We find, therefore. that Respondent has failed to establish properly the exis-
tence of an) newly discovered or previously unavailable evidence.
11. TIH I.ABOR ORGANIZATION INVOI.VFED
Laborers' Local Union x386, Laborers' Interna-
tional Union of North America, AFL CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
11i. THlE UNFAIR I ABOR PRAf'II(CES
A. Tile 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 production and maintenance employees, em-
ploved at the Employer's Nashville, Tennessee,
location; excluding all office clerical employees,
plant clericals. truckdrivers. guards and supervi-
sors as defined in the Act.
2. The certification
On March 7, 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 26 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 June 12, 1978, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request 7T Bargain and Respondenr's Re/fisal
Commencing on or about June 22, 1978, 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
June 28, 1978, and continuing at all times thereafter
to date, Respondent has refused and continues to re-
fuse 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
June 28, 1978, 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 en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF IHE UNFAIR LABOR PRA( II(IES
UPON (OMMFRCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, 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.
. ITHE REMEI)Y
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/b/a/ Lamar Hotel,
140 NLRB 226, 229 (1962), 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:
CoN('.LUSIONS OF LAW
1. Kabinart Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Laborers' Local Union #386, Laborers' Inter-
national Union of North America, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees em-
ployed at the Employer's Nashville, Tennessee, loca-
tion; excluding all office clerical employees, plant
clericals, truckdrivers, guards, and supervisors as de-
fined 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 12, 1978, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 June 28. 1978, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)( I) 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 the Respondent, Kabi-
nart Corporation, Nashville, Tennessee, 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 Laborers' Local Union
#386, Laborers' International Union of North
America, AFL-CIO. as the exclusive bargaining rep-
resentative of its employees in the following appropri-
ate unit:
All production and maintenance employees, em-
ployed by the Employer's Nashville, Tennessee,
location: excluding all office clerical employees,
plant clericals, truckdrivers. guards and supervi-
sors 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its plant in Nashville. Tennessee, copies
904
KABINART CORPORATION
of the attached notice marked "Appendix." 4 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.
4 In the esent that this Order is enlorced hb) a judgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National abor Relations Board" shall read "Posted Pursuant to a Judgment
or' Ihe l nited States Court of Appeals Enforcing an Order of the National
Iahbor Rela;tions Boardl"
APPENDIX
No n(E To EsiMPL OYFiiS
Posii') BY ORDER OF TIlE
NATIONAI. LABOR REI AIIONS BOARD
,An Agency of the United States Government
W wn.i SNOTi refuse to bargain collectively
concerning rates of pay, wages. hours, and other
terms and conditions of employment with Labor-
ers' Local Union =t386, Laborers' International
Union of North America, AFL-CIO. as the ex-
clusive representative of the employees in the
bargaining unit described below.
WE wll.l. 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 of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees
employed at the Employer's Nashville, Ten-
nessee, location; excluding all office clerical
employees, plant clericals, truckdrivers.
guards, and supervisors as defined in the Act.
KABINARI CORPORATION
905