Uniline Corp.

National Labor Relations Board - Board Decisions

Feb 22, 1973

201 N.L.R.B. 998 (N.L.R.B. 1973)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uniline Corporation and Retail Delivery Drivers,
Driver-Salesmen, Produce Workers and Helpers,
Local No. 588, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America. Case 20-CA-7725
February 22, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on August 23, 1972, by Retail
Delivery Drivers, Drivers-Salesmen, Produce Work-
ers and Helpers, Local No. 588, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on Uniline Corporation,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 20, issued a complaint,
notice of prehearing conference, and notice of
hearing on September 8, 1972, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 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 May 5, 1972,
following a Board election in Case 20-RC-10212 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about May 19, 1972, and at all times
thereafter, Respondent has refused, and continues 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.
On September 11, 1972, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint and requesting
that the complaint be dismissed in its entirety.
On October 30, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with appendixes attached there-
to and made a part thereof, directing the Board's
attention to the formal papers of the underlying
I Official notice is taken of the record in the representation proceeding,
Case 20-RC-10212, as the term "record" is defined in Secs 102.68 and
102.69(f) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV Electrosystemr, Inc, 166 NLRB 938, enfd 388 F.2d 683 (C A 4, 1968),
Golden Age Beverage Co., 167 NLRB 151; Intertype Co v. Penello, 269
representation proceeding, Case 20-RC-10212, and
other documents attached to the motion, and
submitting that there are no issues of fact or law
requiring a hearing and, therefore, requests the
Board to grant the Motion for Summary Judgment.
Subsequently, on November 9, 1972, 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 filed an Opposition to
Motion for Summary Judgment and Motion To
Dismiss Complaint, with attached exhibits.
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
In its Opposition to Motion for Summary Judg-
ment and Motion To Dismiss Complaint, with
attached exhibits,2 the Respondent raises substantial-
ly the same matters that it raised in the underlying
representation case, and in its answer to the
complaint. The thrust of the Respondent's conten-
tion is that the Union's certification was improperly
issued because it was denied due process and an
evidentiary hearing on substantial and material
issues of fact raised by its objections to the election.
Upon the entire record before us, including the
record in Case 20-RC-10212, we find no merit in the
Respondent's contention.
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director,
an election was conducted on October 14, 1971. The
tally of ballots served on the parties at the conclusion
of the election reflected that of approximately 39
eligible voters, 39 cast ballots, of which 20 were for,
and 15 against, the Union, and 4 were challenged.
The challenged ballots were insufficient in number to
affect the results of the election. The Respondent
filed timely objections to conduct affecting the
results of the election. Thereafter, the Regional
Director conducted an investigation of the objections
and, on February 1, 1972, issued his Report on
Objections in which he recommended that the
Respondent's objections be overruled in their entire-
ty and that the Union be certified. The Respondent
filed timely exceptions to the Regional Director's
report. On May 5, 1972, the Board issued its Decision
F.Supp. 573 (D.C Va, 1967); Follett Corp, 164 NLRB 378, enfd 397 F.2d
91 (C.A. 7 , 1968); Sec. 9(d) of the NLRA.
2 These exhibits , dated in November 1971, are the same as those that the
Respondent previously submitted to the Regional Director in support of its
objections to the election.
201 NLRB No. 147
UNILINE CORPORATION 999
and Certification of Representative in which it, after
having considered the Regional Director's Report
and the exceptions thereto, concluded that the
Respondent's exceptions raised no material or
substantial issue of fact or law which would warrant
reversal of the Regional Director's findings and
recommendations or would require the holding of a
hearing. Accordingly, the Union was certified.
Thus, the Respondent's answer to the complaint as
well as its Opposition to Motion for Summary
Judgment and Motion To Dismiss Complaint, which
argue that its objections and exceptions raised
substantial and material issues warranting a hearing,
merely reiterate the issues previously raised and
considered in the representation case . Moreover, it is
well established that parties do not have an absolute
right to a hearing on objections to an election. It is
only when the moving party presents a prima facie
showing of "substantial and material issues" which
would warrant setting aside the election that he is
entitled to an evidentiary hearing.3 It is clear that,
absent arbitrary action, this qualified right to a
hearing satisfies all statutory and constitutional
requirements.4
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 the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the 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 the Respondent has not
raised any issue which is properly litigable in this
unfair labor practice proceeding. We shall, accord-
ingly, grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
dent, in the course and conduct of its business
operations in the State of California, purchased and
received goods valued in excess of $50,000 directly
from suppliers located outside the State of Califor-
nia.
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
Retail Delivery Drivers, Driver-Salesmen , Produce
Workers and Helpers, Local No. 588, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men 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
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective -bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of
the Employer at its Union City, California
location , excluding office clerical employees,
guards and supervisors as defined in the Act.
2. The certification
On October 14, 1971, a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted, pursuant to a Stipulation for Certification
Upon Consent Election, under the supervision of the
Regional Director for Region 20, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on May
5, 1972, and the Union continues to be such exclusive
representative within the meaning of Section 9(a) of
the Act.
I. THE BUSINESS OF THE RESPONDENT
At all times material herein, Respondent, a
Delaware corporation, with its principal place of
business at Union City, California, has been engaged
in the production of price-marking equipment and
marking devices. During its past fiscal year, Respon-
9 Allied Foods, Inc, 189 NLRB No 79. and cases cited in In. 6
e Amalgamated Clothing Workers of America [Winfield Manufacturing
Company, Inc ] v N L R. B, 424 F.2d 818 , 828 (C A D C. 1970)
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 15, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
S See Pittsburgh Plate Glass Co v N.LR B., 313 U.S. 146, 162 ( 1941);
Rules and Regulations of the Board , Secs . 102.67(f) and 102.69(c)
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about May 19, 1972, and continuing
at all times thereafter to date , the Respondent has
refused, 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 the Respondent has,
since May 19, 1972, 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, Respon-
dent 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 activities of the 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 (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 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 in the appropri-
ate unit . See MarJac 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).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Uniline Corporation is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Retail Delivery Drivers, Driver-Salesmen,
Produce Workers and Helpers, Local No. 588,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees of
the Employer at its Union City, California location,
excluding 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 May 5, 1972, 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 May 19, 1972, 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 (a)(5) 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)(1) 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 Respondent,
Uniline Corporation , 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 Retail Delivery
Drivers, Driver-Salesmen , Produce Workers and
Helpers, Local No . 588, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , as the exclusive bargaining represent-
UNILINE CORPORATION 1001
ative of its employees in the following appropriate
unit:
All production and maintenance employees of
the Employer at its Union City, California
location, excluding 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 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Union City, California, location,
copies of the attached notice marked "Appendix. "s
Copies of said notice, on forms provided by the
Regional Director for Region 20, 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 20, 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
concerning rates of pay , wages, hours, and other
terms and conditions of employment with Retail
Delivery Drivers, Driver-Salesmen, Produce
Workers and Helpers , Local No . 588, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, 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 of the Employer at its Union City,
California location , excluding office clerical
employees , guards and supervisors as de-
fined in the Act.
UNILINE CORPORATION
(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 compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco , California
94102, Telephone 415-556-3197.
WE WILL NOT refuse to bargain collectively