Miramar Of California

National Labor Relations Board - Board Decisions

Dec 7, 1977

233 N.L.R.B. 1009 (N.L.R.B. 1977)

MIRAMAR OF CALIFORNIA
Miramar of California, Inc. and Hospital & Service
Employees Union, Local 399, Service Employees
International Union, AFL-CIO. Case 21-CA-
15905
December 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on July 29, 1977, by Hospital
& Service Employees Union, Local 399, Service
Employees International Union, AFL-CIO, herein
called the Union, and duly served on Miramar of
California, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 21,
issued a complaint and notice of hearing on August
4, 1977, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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 March 23,
1977, following a Board election in Case 21-RC-
14848 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; t and that,
commencing on or about June 22, 1977, 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. Subsequently, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint, and submitting
affirmative defenses. The Respondent admits all of
the factual allegations of the complaint, except those
paragraphs which relate to the underlying represen-
tation proceeding, Case 21-RC-14848.
I Official notice is taken of the record in the representation proceeding,
Case 21-RC-14848, as the term "record" is defined in Secs. 102.68 and
102.69() 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,
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.
* In its response to the Notice To Show Cause, Respondent states that it
"relies upon documents already before the Board" and specifically
incorporates in the instant proceeding those documents concerning its
request for review; its application for heanng; and its request for retaking of
affidavits. (Exhs. I, F, and G, respectively, of the prior representation
proceeding.)
233 NLRB No. 151
On September 12, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached, alleging,
in substance, that Respondent's answer raises no
factual issues warranting a hearing and requesting
the Board to grant the Motion for Summary
Judgment. Subsequently, on September 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 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
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
As reflected above, Respondent's answer admits all
of the factual allegations of the complaint, including
its refusal to recognize and bargain with the Union
which had been certified as the collective-bargaining
representative of the employees described in the
complaint. In its response to the Notice To Show
Cause, Respondent raises substantially the same
matters that it raised in the underlying representation
case and in the affirmative defenses in its answer to
the complaint.2 Respondent attacks the Regional
Director's and the Board's several rulings at the
various stages of the representation proceedings,
including the validity of the election and the resulting
certification, and it denies that the Union is the
collective-bargaining representative of the employees
in the bargaining unit.3 By this assertion, and more
specifically by its denials, in whole or in part, of the
allegations of the complaint, the affirmative defenses
alleged in its answer, including its assertion that the
Regional Director erred in relying on the Board's
decision in Handy Andy, Inc., 228 NLRB 447 (1977),4
and the arguments propounded in its response to the
Notice To Show Cause, Respondent is attempting to
relitigate the same issues which it raised and litigated
3 Respondent filed a request for review of the Regional Director's
Supplemental Decision and Certification of Representative in which the
Regional Director overruled Respondent's objections to the election held on
January 19, 1977. On May 18, 1977, the Board, by telegraphic order, denied
Respondent's request for review on the ground that it raised no substantial
issues warranting review. Subsequently, on June 22, 1977, Respondent, in its
refusal-to-bargain letter to the Union, stated that as the Board denied its
request for review, Case 21-RC-14848, it intended to contest the validity of
the Board's actions in Federal court.
4 A defense relating to allegations that the Union engaged in a practice
of racial discrimination is not appropriately raised at this stage of the
Board's proceedings. See Buchanan Lumber Birmingham Inc., Aliceville
Veneer Division, 232 NLRB No. 141 (1977); Bell & Howell Company, 230
NLRB 420 (1977); Handy Andy, Inc., supra.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the representation proceeding, Case 21-RC-
14848.
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.5
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. 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 RESPONDENT
At all times material herein, Respondent, a
California corporation, has been engaged in the
manufacture of Melmac dinnerware and operates a
facility located at 603 North Ford Boulevard, Los
Angeles, California. In the normal course and
conduct of its business operations, Respondent
annually sells and ships goods and products valued
in excess of $50,000 directly to customers located
outside the State of California.
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
Hospital & Service Employees Union, Local 399,
Service Employees International Union, AFL-CIO,
is a labor organization 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 production and maintenance employees,
including all employees in the pressing, packag-
ing, finishing, and maintenance departments, and
truckdrivers employed by Respondent at its
facility located at 603 North Ford Boulevard, Los
Angeles, California; excluding all other employ-
ees, office clerical employees, gardeners, guards,
and supervisors as defined in the Act.
2. The certification
On January 19, 1977, 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 21 designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 23, 1977, 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 May 19, 1977, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about June 22, 1977, 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
June 22, 1977, 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.
I 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).
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MIRAMAR OF CALIFORNIA
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
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(aX5) 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 of employees 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:
CONCLUSIONS OF LAW
1. Miramar of California, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Hospital & Service Employees Union, Local
399, Service Employees International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees,
including all employees in the pressing, packaging,
finishing, and maintenance departments, and truck-
drivers employed by Respondent at its facility
located at 603 North Ford Boulevard, Los Angeles,
California; excluding all other employees, office
clerical employees, gardeners, guards, and supervi-
sors as defined in the Act constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since March 23, 1977, 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 June 22, 1977, 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(aX5) 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)(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,
Miramar of California, Inc., Los Angeles, California,
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
conditions of employment with Hospital & Service
Employees Union, Local 399, Service Employees
International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees,
including all employees in the pressing, packag-
ing, finishing, and maintenance departments, and
truckdrivers employed by Respondent at its
facility located at 603 North Ford Boulevard, Los
Angeles, California; excluding all other employ-
ees, office clerical employees, gardeners, 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
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Los Angeles, California, facility,
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 21, 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-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 Hospi-
tal & Service Employees Union, Local 399,
Service Employees International Union, 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, including all employees in the pressing,
packaging, finishing, and maintenance de-
partments, and truckdrivers employed by
Respondent at its facility located at 603
North Ford Boulevard, Los Angeles, Cali-
fornia; excluding all other employees, office
clerical employees, gardeners, guards, and
supervisors as defined in the Act.
MIRAMAR OF
CALIFORNIA, INC.
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