Zeno Table Co.

National Labor Relations Board - Board Decisions

Jan 6, 1978

234 N.L.R.B. 89 (N.L.R.B. 1978)

ZENO TABLE CO., INC.
Zeno Table Company, Inc. and Orange County Dis-
trict Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, AFLCIO.
Case 21 -CA- 15900
January 6, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
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 Zeno Table Company, Inc., herein called Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Re-
gion 21, issued a complaint and notice of hearing on
August 4, 1977, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 no-
tice of hearing before an Administrative Law Judge
were duly served on the parties to this proceeding.
On August 29, 1977,counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment based upon Respondent's failure to
file an answer as required by Section 102.20 of the
Board's Rules and Regulations, Series 8, as amended.
Thereafter, on August 31, 1977, Respondent filed
with the Regional Director an answer to the com-
plaint admitting in part, and denying in part, the
allegations of the complaint. On September 13, 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 the Notice To Show Cause, entitled "Mo-
tion In Opposition To General Counsel's Motion for
Summary Judgment," and counsel for the General
Counsel filed a memorandum in support of the mo-
tion and in response to Respondent's opposition.
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:
I Official notice is taken of the record in the representation proceeding,
Case 21-RC-14574, 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 Electrosysremns, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4,
234 NLRB No. 2
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any allega-
tions in the complaint not specifically denied or
explained in an answer filed, unless the respon-
dent shall state in the answer that he is without
knowledge, shall be deemed to be admitted to be
true and shall be so found by the Board, unless
good cause to the contrary is shown.
The complaint and notice of hearing served on Re-
spondent herein specifically states that unless an an-
swer to the complaint is filed within 10 days of ser-
vice thereof "all of the allegations in said complaint
shall be deemed to be admitted to be true and may
be so found by the Board."
Respondent does not dispute that it was duly
served with the complaint and notice of hearing. In
explanation of its failure to file a timely answer, how-
ever, Respondent asserts that its counsel, Fred R.
Long, was on vacation during that time period al-
lowed for the filing of an answer and did not receive
a copy of the complaint and notice of hearing. The
Regional Director did attempt to serve these docu-
ments on Long, who represented Respondent in the
underlying representation proceeding,l but Respon-
dent asserts that service on its attorney was not prop-
erly made, contending that the documents were
mailed to Long's Southern California office rather
than to his Northern California office and that, in
any event, the person upon whom service was made
was not in fact Long's agent.
Section 102.11 1(b) of the Board's Rules and Regu-
lations, Series 8, as amended, requires that a party's
attorney be served when the attorney "has entered a
written appearance in the proceeding on behalf of
the party." Since Respondent itself received service
and Long did not enter a written appearance on be-
half of Respondent in this proceeding, it is clear that
the requirements of the Board's Rules and Regula-
tions have been satisfied. In any event, even assum-
ing arguendo that Long in fact has at all times in this
proceeding been Respondent's representative, it is
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 N LRA, as amended.
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undisputed that the manner and the location of the
Regional Director's service upon Long conforms
with the service of documents upon him in the under-
lying representation proceeding. In addition, counsel
for the General Counsel has submitted a letter bear-
ing the letterhead of Long's Southern California of-
fice, the validity of which is not disputed, in which
Long, on behalf of Respondent, denied the Union's
request to bargain. Furthermore, the fact that Re-
spondent's representative was on vacation during the
time period allowed for filing an answer does not
excuse Respondent's failure to file an answer or re-
quest an extension of time within which to do so.
Aaron Convalescent Home, 194 NLRB 750 (1971),
enfd. 479 F.2d 736 (C.A. 6, 1973).
As Respondent has not filed an answer within 10
days from the service of the complaint, and as no
good cause to the contrary has been shown, in accor-
dance with Section 102.20 of the Board's Rules and
Regulations, Series 8, as amended, the allegations of
the complaint herein are deemed to be admitted to
be true.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. xTHE BUSINESS OF THE 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 Ana, California. In the normal course 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 Ca-
lifornia.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the me-
aning of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Orange County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation 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 and maintenance employees,
truckdrivers, 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
employees who possess and exercise 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 election
conducted under the supervision of the Regional Di-
rector 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 June 24, 1977, 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
Refusal
Commencing on or about July 12, 1977, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about July 22, 1977, 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 representative for collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since July 22, 1977, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
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ZENO TABLE CO., INC.
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, inti-
mate, 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 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
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding 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 agent for the period provided by
law, we shall construe the initial period of certifica-
tion 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, 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
i. Zeno Table Company, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Orange County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
truckdrivers, shipping and receiving employees em-
ployed by Respondent at its facility located at 2001
East Dyer Road, Santa Ana, California; excluding
all office clerical employees, professional employees,
guards, supervisors, and those lead employees who
possess and exercise supervisory authority as defined
in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since June 24, 1977, the above-named labor
organization has been and is now the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) 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 bar-
gaining representative of all the employees of Re-
spondent 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 mean-
ing 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 Rela-
tions Board hereby orders that the Respondent, Zeno
Table Company, Inc., Santa Ana, California, its offi-
cers, 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 Orange County District
Council of Carpenters, United Brotherhood of Car-
penters and Joiners of America, AFL-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
2001 East Dyer Road, Santa Ana, California; ex-
cluding all office clerical employees, professional
employees, guards, supervisors, and those lead
employees who possess and exercise supervisory
authority 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
91
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 facility at 2001 East Dyer Road,
Santa Ana, California, copies of the attached notice
marked "Appendix." 2 Copies of said notice, on
forms provided by the Regional Director for Region
21 after being duly signed by Respondent's represen-
tative, 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 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 herewith.
2 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 Orange
County District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of Ameri-
ca, 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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employ-
ees, truckdrivers, shipping and receiving em-
ployees employed by Respondent at its facil-
ity located at 2001 East Dyer Road, Santa
Ana, California; excluding all office clerical
employees, professional employees, guards,
supervisors, and those lead employees who
possess and exercise supervisory authority as
defined in the Act.
ZENO TABLE COMPANY,
INC.
92