Seno Table Co.

National Labor Relations Board - Board Decisions

Feb 25, 1981

254 N.L.R.B. 967 (N.L.R.B. 1981)

Z E N 0
Zeno County Ms-
trict
Catpnters and AFGCIO.
-CA- 5900
8(aX5)
granted.2
a n s ~ e r . ~
1980,
Rapondmt '~ vacation
Zeno
had
8(a)(5)
2(6)
appr~pr ia te ;~
proceedkg was 10 dmp aRer the complaint.
answa wm After Summary Judgment Re-
apondent's fled answer ao exp lmt im On 1980, for the General
his e x p h t i o n . Respondent's Coun- fikd
sel Lnw vacation taken summary judgment. subsequently, on september he Counscl com-
hint w hi^ southern OECC rather transferring
b f X i WM appropriate office proceeding to the Board and a Notice To Show
Boud r e j c c d arguments service waa
add- shown othtr ppn reprawntation Cause why the for
~ o u d further the vacation WOUM the should
untimely
a Thc h d ' s
t k complaint b received provided,
ampl.int r)ull dccmcd
ia
Thc that cause"
standud had used the s tmxkd 'b t rmrd inuy circumatanc*r"
asstsing remow
amplaint.
' The Bwd fact uwc" standard
uulyzing the lateness Respondent's anawer.
so, d s o
Board's was "abuse
discretion." rcsulted determ~nation Board
considered Rcspondent'a i u d u .
Cause.
Oficial taken repretentation p r d -
Casc " r a o r d ia Sas.
102.69(g) Rulcs Series 8. M
El~ctmystemr Inc., 166 (1967), F.2d
1%8); Bevrmge 151 (1%7).
1969); Inienypl Ca Penello,
FoNetr Corp., (1967), F.2d
1968); Sec. 9(d) NLRA.
967 TABLE COMPANY, INC.
Table Company, Inc. and Orange
Council of Carpenters, United Brotherhood
Joiners of America,

Case 2 1
1
February 25, 198 1
DECISION AND ORDER
On January 6, 1978, the Board issued a Decision
and Order in the above-entitled proceeding, grant-
ing the General Counsel's Motion for Summary
Judgment and therefore finding that Respondent
had refused to bargain with the Union in violation
of Section and (1) of the Act.' The Board
found that Respondent had failed to file a timely
answer and ruled therefore that summary judgment
be
Thereafter, on May 1, 1978, the Board filed an
application for summary entry of judgment in the
United States Court of Appeals for the Ninth Cir-
cuit. On May 8, 1978, Respondent filed an answer
to the Motion for Summary Judgment. On Septem-
ber 14, 1978, the United States Court of Appeals
for the Ninth Circuit denied the Board's applica-
tion for summary entry of judgment and stated that
the Board's application would be treated as a peti-
tion for enforcement. On October 3, 1979, the
court denied enforcement and remanded the matter
to the Board to consider whether "good cause" ex-
cused the late filing of Respondent's On
November 1, 1979, the Board filed a petition for
rehearing with the court.' On January 14,
the court entered an order denying the Board's pe-
tition." On April 28, 1980, the Board issued an
Order Vacating Decision and Remanding Proceed-
' 234 NLRB 89.
attorney was on when the complaint in this
served and he did not return until the
dm. the Motion for was filed.
attorney an and for the delay. In
attorney contended that the General
of his and should have that into considerntion.
Further, coatended that the General had served the
California than his northern California
which allegedly the more for service. The
these pointing out that made at the
on in the underlying case. The
stated that attorney's not excuse
filing.
610 F.M 567. regulations provide that, if no answer to
within the time the allegations of the
be admitted unless "good cause" to the contrary
shown.

court indicated
the Board had not used this "good
but of in
the for the untimeliness of Respondent's answer to the
argued that it had in used the "good
in of
In doing the court indicated that. by whatever standard was
applied, the refusal to accept Respondent's answer an
of This order in a that the
should have answer on
254 NLRB No. 1 15
ing To Regional Director "for further appropriate
action in light of Respondent's previously filed
answer to the complaint." Thereafter, on Septem-
ber 1 1, 1980, the General Counsel filed a Motion
for Summary Judgment, based on the complaint
and answer, which we now consider.
The record reveals that upon a charge filed on
July 29, 1977, by Orange County District Council
of Carpenters, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, herein called
the Union, and duly served on Table Compa-
ny, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 21, issued a com-
plaint on August 4, 1977, against Respondent, al-
leging that Respondent engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section and (1) and
Section and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 June 24,
1977, following a Board election in Case 21-RC-
14574, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found
and that, commencing on or about July 22, 1977,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so.On August 31, 1977,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
Counsel directly with the Board a Motion for
29, 1980, the Board issued an order the
Sum-
mary Judgment not be granted. Respondent
thereafter-filed a response to the Notice TO Show
Upon the entire record in this proceeding, the
Board makes the following:
notice is of the record in the
ing, 21-RC-14574, as the term defined in 102.68
and of the Board's and Regulations. amended.
See LTV NLRB 938 enfd. 388 683
(4th Cir. Golden Age Ca, 167 NLRB enfd. 415
F.M 26 (5th Cir. v. 269 F. Supp. 573 (D.C.
Va. 1967); 164 NLRB 378 enfd. 397 91 (7th
Cir. of the as mended.
conclusion-
8(a)(5)
discov-
Plote Glaw Ca v. N.LR.R, U.S. 162
Sccs. 102.67(0 102.69(c).
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent
admits the complaint's jurisdictional allegations and
the appropriateness of the unit, but denies that the
charge was filed and served on it; denies that in a
secret-ballot election conducted on April 30, 1976,
a majority of its employees in an appropriate unit
designated the Union as their representative for
purposes of collective bargaining; denies that on
June 24, 1977, the Board certified the Union as bar-
gaining representative in that unit; denies that on
July 12, 1977, the Union requested Respondent to
bargain and that on July 22, 1977, Respondent re-
fused and since that date has continued to refuse to
bargain with the Union; and denies the
ary averments of the complaint. In its opposition to
the Motion for Summary Judgment, Respondent
asserts that the Regional Director erred in finding
that Respondent's Objections 2 and 3, which al-
leged threats by union agents that employees
would lose their jobs and would be deported if
they did not vote for the Union, were not grounds
for setting aside the election. The opposition fur-
ther argues that the Hearing Officer's refusal to
take evidence on these objections denied Respon-
dent due process of law. Respondent further asserts
that the Board erred in adopting the Hearing Offi-
cer's recommendations to overrule Respondent's
Objections 1 and 5 alleging that union agents
threatened, intimidated, and physically attacked eli-
gible voters. The General Counsel contends that
Respondent is improperly seeking to relitigate
issues which were raised and decided in the under-
lying representation case. We agree.
Review of the record herein, including the
record in Case 21-RC-14574, reveals that on April
30, 1976, an election was held in which the tally
was 253 votes for the Union and 88 votes against
the Union, with 18 nondeterminative challenged
ballots. Respondent filed six objections to the elec-
tion. On July 26, 1976, the Regional Director
issued his Report on Objections in which he rec-
ommended that Objections 2, 3, 4, and 6 be over-
ruled, and that Objections 1 and 5 be sustained and
the election set aside.
Thereafter, Respondent filed exceptions to the
Regional Director's recommendation that Objec-
tions 2 and 3 be overruled in which it argued that
the objections demonstrated that an atmosphere of
fear existed that justified setting aside the election.
Respondent also argued that the Regional Director
considered these objections separately and instead
should have analyzed them as cumulative to Objec-
tions 1 and 5 which he had sustained. The Union
also filed exceptions to the Regional Director's rec-
ommendation that Objections 1 and 5 be sustained.
The Regional Director had found that, regardless
of the lack of showing of union agency on the part
of individuals who allegedly had threatened, co-
erced, and caused bodily injury to employees, the
conduct was so aggravated as to create an atmo-
sphere of fear and violence warranting the setting
aside of the election. On November 3, 1976, the
Board issued its Decision and Order Directing
Hearing in which it affirmed the Regional Direc-
tor's overruling of Objections 2 and 3, but found
that Objections 1 and 5 raised issues which were
best resolved by a hearing. The Board therefore re-
manded the proceeding to the Regional Director
for the purpose of having a hearing officer conduct
a hearing on Objections 1 and 5 and thereafter issu-
ing a report on those objections. Thereafter, a
hearing was held, and, on April 19, 1977, the Hear-
ing Officer issued his report recommending that
Objections 1 and 5 be overruled as he found that
the credited evidence did not establish the exis-
tence of a general atmosphere of fear and reprisal
which made impossible a fair selection of a bar-
gaining representative. The Hearing Officer also
recommended that a certification of representative
be issued. Respondent filed exceptions to this
report. On June 24, 1977, the Board adopted the
Hearing Officer's findings and recommendations
and issued a Certification of Representative.
In its opposition to the Motion for Summary
Judgment, Respondent again asserts that the Re-
gional Director was in error in overruling Respon-
dent's Objections 2 and 3 and in failing to view the
incidents described therein as cumulative to the in-
cidents in Objections 1 and 5. Respondent asserts *
that the Hearing Officer was in error in excluding
evidence involving Objections 2 and 3 at the hear-
ing. Respondent also again asserts that the Board
erred in adopting the Hearing Officer's recommen-
dations to overrule Respondent's Objections 1 and
5. It therefore appears that in this proceeding Re-
spondent is attempting to relitigate issues fully liti-
gated and finally determined in the representation
proceeding. It is well settled that in the absence of
newly discovered or previously unavailable evi-
dence or special circumstances a respondent in a
proceeding alleging a violation of Section is
not entitled to relitigate issues which were or could
have been litigated in a prior representation pro-
ceeding.
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly
See Pittsburgh 313 146, (1941);
Rules and Regulations of the Board. and
ZEN0
ered
J~dgrnen t .~
Ana,
Reswndent
2(6)
11.
Carpenters,
2(5)
denies
served denia
war Cau
Representative
d m denies 1977,
bargain refused bargain
certifd extent
t h e
notifc dated
mril dated 1, Respondent's receipt
@) tally
Director's
dnte
letter the
rscipt
12.
Summnry refused the
the
111.
h e e d i n g
9(b)
office
supervisors,
9(a)
3
8(a)(5) (1)
TABLE COMPANY. INC.
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
On the basis of the entire record, the Board
makes the following:
I. THE BUSINESS OF RESPONDENT
Zeno Table Company, Inc., at all times material
herein, has been a corporation engaged in the busi-
ness of manufacturing furniture with its principal
place of business located at 2001 East Dyer Road,
Santa California. In the normal course of its
business operations. annually sells and
ships and valued in-excess of
$50,000 directly to customers located outside the
State of California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
THE LABOR ORGANIZATION INVOLVED
Orange County District Council of
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within
the meaning of Section of the Act.
As noted above. Respondent that the charge was filed and
on it, and that on April 30. 1976. a secret-ballot election
held in 21-RC-14574, which resulted in the issuance of a Certi-
fication of to the Union on June 24, 1977. Respondent
the allegations that on July 12, the Union requested it to
and, on July 22, 1977, it to with the Union in the
unit. T o the that, in these denials, Respondent is denying
the fact of events, the record includes (a) a copy of the charge, a
of filing of the charge July 29. 1977, and a signed registered
receipt August 1977, indicating of the
charge; the of ballots signed by Respondent and the Regional
Report on Objections served on Respondent, which lists the
election as April 30, 1976; (c) the Board's Decision a d Certification
of Representative served on Respondent, which is dated June 24, 1977;
and (d) a from Respondent to Union dated July 22. 1977, in
which Respondent acknowledged of the Union's request to bar-
gain of July 1977, but refused to bargain in order to test the certifica-
tion, and Respondent's admission, in par. 5 of its opposition to the
Motion for Judgment, that it to bargain with Union
as of July 22, 1977. Respondent has not denied the authenticity and accu-
racy of these documents; accordingly, we find relevant complaint al-
legations to be established as true.
THE UNFAIR LABOR PRACTICES
A. The Representation
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section of the
Act:
All production and maintenance employees,
truckdrivers, shipping and receiving employees
employed by Respondent at its facility located
at 2001 East Dyer Road, Santa Ana, Califor-
nia; excluding all clerical employees,
professional employees, guards,
and those lead employees who possess and ex-
ercise supervisory authority as defined in the
Act.
2. The certification
On April 30, 1976, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 21, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on June 24, 1977, and the Union continues to be
such exclusive representative within the meaning of
Section of the Act.
B. The Request To Bargain and Respondent

Refusal

Commencing on or about July 12, 1977, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the abovedescribed unit. Com-
mencing on or about July 22, 1977, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
July 22, 1977, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section and
of the Act.
111,
8(a)(5)
understanding
Inc.,
(1962),
F.2d 600 1964), cert.
Burnett Construction
(1964), F.2d (10th
2(6)
2(5)
ern-
9(b)
9(a)
8(a)(5)
8(a)(I)
2(6)
lqc )
I c . ,
AFL-
2001
posses6
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR

PRACTICES UPON COMMERCE

The activities of Respondent set forth in section
above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 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 in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 enfd. 328
(5th Cir. denied 379 U.S. 817;
Company, 149 NLRB 14 19,
1421 enfd. 350 57 Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
1. Zeno Table Company, Inc., is an employer en-
gaged in commerce within the meaning of Section
and (7) of the Act.
2. Orange County District Council of Carpen-
ters, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, is a labor organization
within the meaning of Section of the Act.
3. All production and maintenance employees,
truckdrivers, and shipping and receiving employees
employed by Respondent at its facility located at
2001 East Dyer Road, Santa Ana, California, ex-
cluding all office clerical employees, professional
employees, guards, supervisors, and those lead
ployees who possess and exercise supervisory au-
thority as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section of the Act.
4. Since June 24, 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
of the Act.
5. By refusing on or about July 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 prac-
tices within the meaning of Section 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,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section and (7) of the Act.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Zeno Table Company, Santa Ana, 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 Orange County
District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America,
CIO, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees,
truckdrivers, shipping and receiving employees
employed by Respondent at its facility located
at East Dyer Road, Santa Ana, Califor-
nia; excluding all office clerical employees,
professional employees, guards, supervisors,
and those lead employees who and ex-
ercise supervisory authority as defined in the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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:
ZEN0
houn,
(b) 2001 Road,
Santa
"Appendi~."~
Respondemt
* event tlut this is mbrced Judgment
Statea Appdr, word8 "Posted
Lsbor rcsd Pursu-
m t Judgment Unital Scales Court Appds
Labor
POSTED ORDER OF
NATIONAL
houn,
employas
guaranteed
as
employees
production maintenance
truckdrivers,
2001 East
em~lovees
TABLE COMPANY. INC.
(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, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
Post at its facility at East Dyer
Ana, California, copies of the attached notice
marked 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 im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous 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 21,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
In the Order by a of a United
Court of the in the notice reading by
Order of the National Relations Board" shall "Posted
to a of the of Enforcing an
Order of the National Relations Board."
APPENDIX
NOTICE To EMPLOYEES
BY
ABOR RELATIONS BOARD
THE
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, and
other terms and conditions of employment
with Orange County District Council of Car-
penters, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, as the ex-
clusive representative of the in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, the exclusive represen-
tative of all 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 agreement. The bargaining unit is:
All and employees,
shipping and receiving employ-
ees employed by the Employer at its facility
located at Dyer Road, Santa Ana,
California; excluding all office clerical em-
ployees, professional employees, guards, su-
pervisors, and those lead who