R. Dakin and Co.

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 572 (N.L.R.B. 1970)

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. Dakin and Company and Warehouse Union Local
No. 860 , International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Case 20-CA-5671
March 6, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a charge filed by Warehouse Union Local
No. 860, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 20, issued
a complaint, dated August 11, 1969, against R.
Dakin and Company, herein called the Respondent,
alleging that the Respondent had engaged in and
was engaging in unfair labor practices within the
meaning of Sections 8(a)(5) and (1), and 2(6) and
(7) of the National Labor Relations Act, as
amended, Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly
served upon the Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on June 24,
1969, the Union was duly certified by the Board as
the exclusive bargaining representative of the
Respondent's employees in the stipulated
appropriate unit, and that, since on or about July
10, 1969, the Respondent has refused and is refusing
to bargain with the Union as such exclusive
representative, although the Union has requested
and is requesting it so to do. On August 22, 1969,
the Respondent filed its Answer to the complaint, in
which it admitted in part and denied in part the
allegations contained therein, and requested that the
complaint be dismissed.
On October 9, 1969, the General Counsel filed
with the Board a Motion for Summary Judgment,
alleging that there are no issues of fact or law
requiring a hearing in this proceeding and praying
that the Board find that the Respondent has violated
Section 8(a)(5) and (1) of the Act and issue a
Decision and Order in conformity with the
allegations of the complaint.
On October 10, 1969, the Board issued an Order
Transferring Proceeding to the Board and Notice to
Show Cause in which it notified the Respondent to
show cause why the General Counsel's Motion for
Summary Judgment should not be granted. On
October 23, 1969, the Respondent filed an Answer
to Notice to Show Cause and Request for Oral
Argument.'
The Request for Oral Argument is denied as the record adequately
presents the issues and the positions of the parties
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its Answer to Notice to Show Cause, the
Respondent raises no issue of law or fact that was
not litigated in the representation proceeding. In the
absence of newly discovered or previously
unavailable evidence, issues which were or could
have been litigated in the related representation
proceeding may not be relitigated in an unfair labor
practice proceeding.' The Respondent does not
contend herein that it has such evidence. The
Respondent does argue that since there was no
hearing held on the objections to the election, it has
been denied due process. A hearing is however not
required unless substantial and material issues of
fact are raised by the objections.3 In making his
Report on Objections in the instant case, the
Regional Director concluded that, as to certain
objections, his investigation had raised substantial
and material issues of fact. However, the
investigation also disclosed that the conduct alleged
in these objections occurred prior to the filing of the
petition pursuant to which the election was held. As
the Board has held that conduct occurring prior to
the filing of the petition shall not be grounds for
setting aside an election ,4 the Regional Director
recommended in his Report on Objections issued
March 19, 1969, that the objections be overruled
without ordering a hearing. The Board in its
Decision and Certification of Representative,
adopted this recommendation.
The Respondent's principal contention is that the
Board erred in applying the rule of Ideal Electric,
supra, to the facts in this case. This contention is
however no more than a reiteration of the
arguments made by the Respondent and rejected by
the Board in the representation proceeding.
Accordingly, as we find that there are no matters
requiring a hearing before a Trial Examiner, the
General Counsel's Motion for Summary Judgment
is hereby granted.
On the basis of the record before it, including the
General Counsel's Motion for Summary Judgment
and the Respondent's Answer thereto, the Board
makes the following:
'See, Roadway Express, Inc, 170 NLRB No 161 , Pittsburgh Plate
Glass Company v NLRB , 313 U S 146, 158
'See, Air Control Window Products , Inc, 335 F 2d 245 (C A 5), Bata
Shoe Co , 377 F 2d 821 (C A 4)
'Ideal Electric and Manufacturing Co , 134 NLRB 1275
181 NLRB No. 87
R. DAKIN & CO. 573
FINDINGS OF FACT Respondent has since July 10, 1969, refused to
bargain collectively with the Union as such
1. THE BUSINESS OF RESPONDENT representative; and that, by such refusal, the
The Respondent is, and at all times material
herein has been, a corporation with an office and
warehouse in Brisbane, California, and is engaged in
the manufacture and wholesale sale of toys. During
the 12 months preceding the issuance of the
complaint herein, the Respondent sold and shipped
goods valued in excess of $50,000 directly to
purchasers outside the State of California, and
purchased and received goods valued in excess of the
same amount directly from suppliers outside the
state.
The Respondent admits, and we find, that it is,
and at all times material herein, has been, an
employer engaged in commerce within the 'meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Warehouse Union Local No. 860, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
At all times material herein, the following
employees have constituted and now constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of the Act:
All warehousemen, including shipping and
receiving clerks, employed at the Respondent's
Brisbane, California, location, excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act.
B. The Request to Bargain and the
Respondent's Refusal
A majority of the employees of the Respondent in
said unit having designated the Union as their
representative for the purposes of collective
bargaining with the Respondent, the Board duly
certified the Union as the exclusive representative of
the employees in said unit, and the Union continues
to be such representative. We find that the Union at
all times since June 24, 1969, has been and now is
the exclusive bargaining representative of all the
employees in the appropriate unit described above,
within the meaning of Section 9(a) of the Act; that
the Union requested and is requesting the
Respondent to bargain collectively with it as the
exclusive bargaining representative of all the
employees in the appropriate unit; that the
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 acts of Respondent set forth in Section III,
above, occurring in connection with its operations as
described in Section I, above, have a close, intimate,
and substantial relation 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
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 year of
certification as beginning on the date the
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; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. R. Dakin and Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Warehouse Union Local No. 860 International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All warehousemen, including shipping and
receiving clerks employed at the Respondent's
Brisbane , California, location, excluding all other
employees, office clerical employees, guards 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 June 24, 1969, the above-named labor
organization has been and is the exclusive
representative of all employees in the aforesaid
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing, on or about July 10, 1969, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
representative of all its employees 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 to
them in Section 7 of the Act, and has thereby
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
meaning of Section 2(6) and (7) of the Act.
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 20, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
In the event that the Board ' s 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 "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
R. Dakin and Company, Brisbane , 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
conditions of employment with Warehouse Union
Local No. 860, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America as the exclusive and duly certified
bargaining representative of its employees in the
following appropriate unit:
All warehousemen, including shipping and
receiving clerks, employed at the Respondent's
Brisbane, California, excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by 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
understanding is reached, embody such
understanding in a signed agreement.
(b) Post in its Brisbane warehouse copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director
for Region 20 shall, after being duly signed by
Respondent's representative, be posted by
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 with
Warehouse Union Local No. 860, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargaining
representative of the employees in the 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 representative of
all employees in the bargaining unit described below
with respect to 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 warehousemen, including shipping and receiving
clerks, employed at the Employer' s Brisbane,
California, location, excluding all other employees,
office clerical employees, guards and supervisors as
defined in the Act.
R. DAKIN AND COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
13050 Federal Building, 450 Golden Gate Avenue, San
Francisco, California 94102, Telephone 415-556-3197.