Leonard Creations of California, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1979

243 N.L.R.B. 832 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leonard Creations of California, Inc. and Local 1010
United Industrial Workers of the United Furniture
Workers of America, AFL-CIO. Case 31 -CA 8683
July 31, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Upon a charge filed on January 25, 1979, by Local
1010 United Industrial Workers of the United Furni-
ture Workers of America, AFL CIO, herein called
the Union, and duly served on Leonard Creations of
California, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations Board,
by the Acting Regional Director for Region 31, issued
a complaint and notice of hearing on February 20,
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, 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 November 20,
1978, following a Board election in Case 31 RC-
4223, 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 November 27, 1978, and at
all times thereafter Respondent has refused and con-
tinues 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. The complaint also alleges that on or about
January 1, 1979, Respondent granted unilateral wage
increases to all unit employees without notice to or
bargaining with the Union. On March 5, 1979, Re-
spondent filed its answer to the complaint admitting
in part, and denying in part, the allegations in the
complaint. On May 10, 1979, Respondent filed an
amendment to its answer to the complaint, deleting
Official notice is taken of the record in the representation proceeding,
Case 31-RC-4223 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 Electrosystemrns, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir.
1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Inrertype 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 NLRB, as amended.
from its answer an affirmative defense to one allega-
tion of the complaint.2
On May 18, 1979, counsel for the General Counsel
filed directly with the Board a "Motion to Transfer
Case to and Continue Proceedings Before the Board
and for Summary Judgment." Subsequently, on May
23, 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 there-
after filed a response to the Notice To Show Cause
entitled "Respondent's Opposition to 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 the Notice To
Show Cause, Respondent essentially contests the va-
lidity of the Union's certification. Respondent's posi-
tion in this regard is based on its objections to the
election, which allege that one ballot declared void by
the Board agent conducting the election was, in fact,
one valid vote against the Union. Respondent claims
that if counted this ballot would have resulted in a tie
vote. Therefore, Respondent argues, it should have
been certified that a majority of valid ballots had not
been cast for the Union. In the "Motion to Transfer
Case to and Continue Proceedings Before the Board
and for Summary Judgment," the General Counsel
contends that there are no issues requiring a hearing,
and that Respondent is attempting here to relitigate
issues which were raised and determined in the un-
derlying representation proceeding. The General
Counsel claims that all issues have been fully liti-
gated, and that Respondent has alleged no special
circumstances requiring a reexamination of that case.
We agree with the General Counsel.
Review of the entire record, including that in Case
31-RC-4223, discloses that pursuant to a Stipulation
for Certification Upon Consent Election, an election
was conducted on September 8, 1978, which the
Union won by a vote of 62 to 61, with I void ballot.
2 On or about May I. 1979. the General Counsel filed a motion for partial
summary judgment with the Division of Administrative Law Judges. The
General Counsel sought summary judgment on all allegations of the com-
plaint except for the issues raised by Respondent's affirmative defense to the
complaint allegation that it had unilaterally granted a wage increase. Re-
spondent claimed that such increases were granted pursuant to or in connec-
tion with increases in the Federal minimum wage. However, as noted. Re-
spondent subsequently deleted this affirmative defense from its answer to the
complaint.
243 NLRB No. 130
832
LEONARD CREATIONS OF CALIFORNIA, INC.
Respondent thereafter filed timely objections to the
conduct of the election alleging that the void ballot
should have been counted as a valid vote against the
Union. Respondent described this ballot as contain-
ing a light oblique line in the "yes" box and a clear
heavily marked "X" in the "no" box. Such markings,
Respondent maintained, indicated the clear intent of
the voter to vote "no" and did not serve to identify
the voter.
After an investigation the Regional Director for
Region 31 issued his Report on Objections in which
he found them to be without merit and recommended
that they be overruled. Specifically, the Regional Di-
rector found that both squares of designation on the
ballot (yes and no), had been marked in such a man-
ner that the intent of the voter could not be ascer-
tained with the required degree of certainty.
Thereafter, Respondent filed exceptions to the Re-
port on Objections contending that the Regional Di-
rector erred in overruling its objections. On Novem-
ber 20, 1978, the Board issued a Decision and
Certification of Representative 3 in which, after re-
viewing the record in light of the exceptions and brief,
it adopted the findings and recommendations of the
Regional Director4 and certified the Union as the ex-
clusive bargaining representative of the employees in
the unit stipulated to be appropriate. It thus appears
that Respondent is raising issues which had been
raised and determined in the underlying representa-
tion case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence of 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.5
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.
Not reported in volumes of Board decisions.
'The Board noted that in finding the ballot herein void the Regional
Director replied, in part, on Duvall Transfer and Dehverv Services. 232
NLRB 843 (19771. That case. the Board noted. was overruled by Abrex
Beverage Corporatrion. 237 NLRB 1271 (1978). Chairman Fanning concurred
in the finding that the ballot was void on the ground that there was no
explanation for the marking of both choices on the ballot other than as
alternative selections, citing Abtex, supra.
SSee 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).
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record. the Board makes
the following:
FINDIN(iS OF FA(CT
1. THE BUSINESS OF RESPONDI N I
Respondent is a California corporation with an of-
fice and principal place of business located in El Se-
gundo, California, where it is engaged in the manu-
facture of giftware goods. Respondent annually sells
and ships goods or services valued 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. IIE LABOR ORGANIZATION INVO()LVED
Local 1010 United Industrial Workers of the
United Furniture Workers of America, AFL. CIO. is
a labor organization within the meaning of Section
2(5) of the Act.
II. IH 1 UNI-AIR I ABOR PRA(CII( ES
A. Tll Represenltation 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 employees, including shipping
and receiving employees employed by Respon-
dent at its facility located at 737 Hawaii Street,
El Segundo. California: excluding all other em-
ployees, salesmen, janitors, office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
2. The certification
On September 8, 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 31. designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective-bargaining representative of the employees in
said unit on November 20, 1978, and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Reli.sal
Commencing on or about November 27, 1978, and
at all times thereafter the Union has requested Re-
spondent to provide certain relevant and necessary
information for the purposes of collective bargaining 6
and 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 November 27, 1978, and continuing at all times
thereafter to date Respondent has refused and contin-
ues to refuse to provide the requested information
and to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit. Commencing on or about
January 1, 1979, Respondent unilaterally granted
wage increases to all unit employees without notice to
or bargaining with the Union.
Accordingly, we find that Respondent has, since
November 27, 1978, and at all times thereafter re-
fused to provide relevant and necessary information
for the purposes of collective bargaining and to bar-
gain collectively with the Union as the exclusive rep-
resentative of the employees in the appropriate unit,
and that by such refusal and by the aforesaid unilat-
eral conduct Respondent has engaged in and is en-
gaging 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
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.
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
6The Union seeks information relating to the following subjects: names,
seniority dates, rates of pay, job descriptions and classifications,. salary range,
past and future wage increases; current benefits; company policy with re-
spect to layoffs, discipline, discharge, and grievances; plant safety rules; and
working hours and breaktime.
order that it cease and desist therefrom and, upon
request, provide the Union with the requested rel-
evant and necessary information for the purposes of
collective bargaining and bargain collectively with
the Union as the exclusive representative of all em-
ployees in the appropriate unit and, if an understand-
ing 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 for the period provided by law, we
shall construe the initial period of certification as be-
ginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Compan, Inc., 136 NLRB 785
(1962); Commerce Company d/b/u 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
I. Leonard Creations of California, Inc., is an em-
ployer engaged in commerce within the meaning of
the Section 2(6) and (7) of the Act.
2. Local 1010 United Industrial Workers of the
United Furniture Workers of America, AFLCIO,. is
a labor organization within the meaning of Section
2(5) of the Act.
3. All production employees, including shipping
and receiving employees employed by Respondent at
its facility located at 737 Hawaii Street, El Segundo,
California; excluding all other employees, salesmen,
janitors, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since November 20, 1978, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about November 27, 1978,
and at all times thereafter to bargain collectively with
the above-named labor organization as the exclusive
bargaining 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.
834
I.FO)NARI) ('REAIONS OF ('AlIFO()RNIA, IN('.
6. By refusing on or about November 27. 1978.
and at all times thereafter to provide the above-
named organization with certain relevant and neces-
sary information requested by it for the purposes of
collective bargaining Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
7. By unilaterally granting on or about January I,
1979, wage increases to all unit employees without
notice to or bargaining with the Union Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act.
8. By the aforesaid refusal to bargain and to pro-
vide relevant and necessary information and by the
aforesaid unilateral action 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)( 1)
of the Act.
9. 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,
Leonard Creations of California, Inc., El Segundo,
California, 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 con-
ditions of employment with Local 1010 United Indus-
trial Workers of the United Furniture Workers of
America, AFL-CIO, as the exclusive bargaining rep-
resentative of its employees in the following appropri-
ate unit:
All production employees, including shipping
and receiving employees employed by Respon-
dent at its facility located at 737 Hawaii Street,
El Segundo, California: excluding all other em-
ployees, salesmen, janitors, office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
(b) Refusing to provide the above-named labor or-
ganization with the relevant and necessary informa-
tion requested by it for the purposes of collective bar-
gaining.
(c) Unilaterally granting wage increases to unit
employees without notification to or bargaining with
the Union without prejudice, however, to and wage
increases heretofore granted.
(d) 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) Upon request, provide the above-named labor
organization with the relevant and necessary informa-
tion requested by it for the purposes of collective bar-
gaining.
(c) Post at its El Segundo, California, facilitN cop-
ies of the attached notice marked "Appendix."' Cop-
ies of said notice, on forms provided by the Regional
Director for Region 31, 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 b any
other material.
(d) Notify the Regional Director for Region 31. 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 h a Judgment of a nted States
court of appeals, the words in the notice reading "Posted hb Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
ot the United States (Court of Appeals Enforcing an Order of the National
Labx)r Relations Board."
APPENDIX
NOTI(CE To EMPI.OYEES
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 Local
1010 United Industrial Workers of the United
Furniture Workers of America, AFL CIO, as
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT refuse to provide information
requested by the Union which is relevant to and
necessary for the purposes of collective bargain-
ing.
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WF WIl.. NO-I unilaterally grant any wage in-
crease to unit employees without bargaining in
good faith with our employees' collective-bar-
gaining representative, but this will not affect
any wage increase we have already placed into
effect.
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 represen-
tative 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 employees, including shipping
and receiving employees employed by us at
our facility located at 737 Hawaii Street, El
Segundo, California; excluding all other em-
ployees, salesmen, janitors, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
WE WILL., upon request, provide the above-
named labor organization with the relevant and
necessary information requested by it for the
purposes of collective bargaining.
LEONARD CRAII()NS ()1 CAIFORNIA, IN(C.
836