American Wholesalers, Inc.

National Labor Relations Board - Board Decisions

Feb 17, 1976

222 N.L.R.B. 917 (N.L.R.B. 1976)

AMERICAN WHOLESALERS, INC. 917
American Wholesalers , Inc. and Textile Workers
Union of America , AFL-CIO. Case 5-CA-7423
February 17, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND WALTHER
Upon a charge filed on July 31, 1975, by Textile
Workers Union of America, AFL-CIO, herein called
the Union, and duly served on American Wholesal-
ers, Inc., herein called the Respondent, the Acting
General Counsel of the National Labor Relations
Board, herein the General Counsel, by the Regional
Director for Region 5, issued a complaint on August
28, 1975, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor 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. Cop-
ies 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 com-
plaint alleges in substance that on June 6, 1975, fol-
lowing a Board election in Case 5-RC-8312, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;) and that, commenc-
ing on or about July 7, 1975, and at all times thereaf-
ter, 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 5, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On October 2, 1975, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary, Judgment. Subsequently, on October 23, 1975,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment 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 Na-
Official notice is taken of the record in the representation proceeding,
Case S-RC-8312, as the term "record" is defined in Sees 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8 , as amended. See
LTV Electrosystenis, 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
(CA. 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.
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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent admits the
refusal to bargain, but attacks the propriety of the
Union's certifications on the basis of its objections to
unit scope and composition and to union conduct
affecting the results of the election. Respondent also
requests reconsideration by the Board of its decision
in the underlying representation case and, further,
contends that factual issues with respect to employee
turnover require a hearing herein.
Review of the record herein, including the record
in Case 5-RC-8312, reveals that, pursuant to the Re-
gional Director's Decision and Direction of Elec-
tion,2 an election was conducted on February 9,
1973, which the Union won. Respondent filed timely
objections to conduct affecting the results of the elec-
tion, alleging, in substance, threats, harassment, mis-
representations, and a promised waiver of initiation
fees. Thereafter, a hearing on the objections was di-
rected by the Acting Regional Director? Following
the hearing, the Hearing Officer issued a Report on
Objections with findings and recommendations in
which he recommended overruling the'objections in
their entirety. Respondent, thereafter, filed timely ex-
ceptions to the Hearing Officer's report and a brief in
support thereof. The Regional Director, in his Sec-
ond Supplemental Decision and Certification of
Representative, dated October 12, 1973, adopted the
Hearing Officer's recommendations, overruled
Respondent's objections in their entirety, and certi-
fied the Union. Respondent filed a ,request with the
Board for review of the Regional Director's Second
Supplemental Decision on the ground that, inter alia,
prejudicial error resulted from the Hearing Officer's
deferral of cross-examination of Respondent's wit-
nesses. The Board, by telegraphic order dated -De-
2 Following the Decision and Direction of Election , dated January 15,
1973, Respondent requested review thereofs contending the Regional Direc-
tor erred in finding a single-plant unit appropriate and in excluding order
clerks from those employee classifications eligible to vote The Board con-
sidered these contentions and, by telegraphic order of Febuary 6, 1973,
denied Respondent 's request as it raised no substantial issues warranting
review.
3 In his Supplemental Decision and Notice of Hearing , dated March 23,
1973, the Acting Regional Director directed a hearing on all of
Respondent's objections with the exception of the objection based on the
Union's promised waiver of initiation fees This objection was overruled in
its entirety . Respondent , thereafter, requested review of the Acting Regional
Director's Supplemental Decision and the Board, by telegraphic order of
April 11, 1973, on its own motion , amended the Supplemental Decision and
Notice of Hearing to provide for the receipt of all, relevant evidence with
respect to the initiation fee waiver objection.
222 NLRB No. 148
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cember 18, 1973, granted the request, and, on May 9,
1974, issuedits Decision on Review 4 in which it con-
cluded that the Hearing Officer's action constituted
prejudicial error, and remanded the case for a hear-
ing de novo on Respondent's election objections.
In accord with -the Board's Decision, a de novo
hearing was held on Respondent's objection. After
the hearing, the Hearing Officer issued his Report on
Objections and Recommendations in which he rec-
ommended overruling the objections in their entirety.
Respondent, thereafter, excepted to the report ba-
sically on the grounds, inter alia, (1) that the Hearing
Officer allowed the Union to refer to testimony from
the first hearing on objections in-, cross-examining
witnesses during the second-such hearing, (2) that the
Hearing Officer erroneously concluded that the elec-
tion was not fatally tainted by the Union's coercive
campaign conduct, and, (3) that the Hearing Officer
failed to order a new election on the ground of al-
leged substantial employee turnover. The Board con-
sidered Respondent's exceptions and brief in support
thereof and, on June 6, 1975, a Board panel of Mem-
bers Fanning and Jenkins, with Member Kennedy
dissenting, adopted the Hearing Officer's findings
and recommendations and certified the Union.5
It thus appears that Respondent seeks to relitigate
herein issues, relating to the unit, its election objec-
tions, and its report exceptions, which were raised
and decided in the representation case. It is well set-
tled that in the absence of newly discovered or previ-
ously 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.6
- All issues raised, by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances I exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
4 210 NLRB 499 (1974).
5 218 NLRB No. 50 (1975)
6 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)
7 In its answer and response to the Notice To Show Cause, Respondent
contends special circumstances warrant reconsideration of the underlying
representation case decision , citing the second Hearing Officer's allowance
of the Union's use of testimony from the first hearing on objections and his
conclusions as to election taint which are alleged to be erroneous and con-
trary to the weight of the evidence We deny the request for reconsideration
as the special circumstances alleged relate to issues which were raised, con-
sidered, and resolved in the representation case and which Respondent, in
effect, seeks to relitigate herein.
any issue which is properly litigable in this unfair
labor practice proceeding.8 We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Maryland corporation, is engaged
in the manufacture and wholesale distribution of
mattresses, the cutting, binding, and wholesale distri-
bution of carpeting, and the wholesale distribution of
appliances at its Landover, Maryland, location. Dur-
ing the preceding 12 months, a representative period,
Respondent sold and shipped, in interstate com-
merce, products valued in excess of $50,000 to points
located outside the State of Maryland. - -
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
meaning 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
Textile Workers Union of America, 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 the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
s With respect to Respondent's contention that a hearing is required to
investigate its allegations of substantial employee turnover which renders
the election-results unrepresentative of present employee sentiment , we find
this contention to be without merit . Initially, we note that Respondent had
raised this issue previously in its exceptions to the second Hearing Officer's
Report on Objections and Recommendations . Further, it is well settled that,
as the Union was selected by a majority of the unit employees,
Respondent's obligation to bargain extends for 1 year from the date of the
Union's certification, and employee turnover does not constitute "unusual
circumstances" -within the Supreme Court 's decision in Ray Brooks v
N L R.B., 348 U S. 96 (1954). Georgetown Dress Corporation, 217 NLRB No.
8 (1975); Nichols-Homeshield Inc, 214 NLRB No. 85 (1974). Where, as
here , Respondent's factual allegations are not cognizable as a defense to a
refusal-to-bargain charge, there are necessarily no substantial and material
issues of fact to be determined , and a hearing is not required in such circum-
stances . See Janler Plastic Mold Corporation, 191 NLRB 162 (1971), Crest
Leather Manufacturing Corporation, 167 NLRB 1085 (1967).
AMERICAN WHOLESALERS, INC.
All production and maintenance employees,
including truckdrivers, schedulers, production
payroll -clerks,-production ticket sorter, log tag
clerk, and cafeteria employees employed by Re-
spondent at its Landover, Maryland, location,
excluding office clerical employees, order clerks,
payroll clerks, professional employees, guards,
and supervisors as defined in the Act.
2. The certification
On February 9, 1973, 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 5, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 6, 1975, 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 June 11, 1975, 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 7, 1975, 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 collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since July 7, 1975, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activites 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
919
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 commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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); Bur-
nett 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. American Wholesalers, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6), and (7) of the Act.
2. Textile Workers Union of America , AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees, in-
cluding truckdrivers, schedulers, production payroll
clerks, production ticket sorter, log tag clerk , and caf-
eteria employees employed by Respondent at its
Landover, Maryland, location , excluding office cleri-
cal employees, order clerks, payroll clerks , profes-
sional employees , guards, and supervisors 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 6 , 1975, the above-named labor or-
ganization has -been and now is the certified and -ex-
clusive 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 7, 1975, 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 en-
920 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
gaged 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 thereby has engaged in and
is engaging in unfair 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 Re-
lations Board hereby orders that Respondent, Ameri-
can Wholesalers, Inc., Landover, Maryland, 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 Textile Workers Union
of America, AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All production and maintenance employees,
including truckdrivers, schedulers, production
payroll clerks, production ticket sorter, log tag
clerk, and cafeteria employees employed by Re-
spondent at its Landover, Maryland, location,
excluding office clerical employees, order clerks,
payroll clerks, professional 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 Landover, Maryland, facility copies
of the attached notice marked "Appendix." 9 Copies
of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consectuive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able 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 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER WALTHER, dissenting:
I disagree with my colleagues' decision to grant the
General Counsel's Motion for Summary Judgment.
For many of the reasons stated by Member Kennedy
in his dissenting opinion in the underlying represen-
tation proceeding,' I do not feel that the parties were
afforded the de novo review which the Board had pre-
viously directed." By permitting the Petitioner in the
second hearing to cross-examine the Employer's wit-
nesses on the basis of testimony given in the prior
hearing, the Hearing Officer effectively perpetuated
the procedural defects which the Board found in the
first hearing.
For the foregoing reasons, I conclude that the le-
gitimacy of the election has not been established, and
the denial of a hearing by the granting of summary
judgment only further compounds the error. Accord-
ingly, I would deny the General Counsel's Motion
for Summary Judgment.
9In 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 "
1e American Wholesalers, Inc., 218 NLRB No. 50 (1975).11 American Wholesalers, Inc, 210 NLRB 499 (1974).
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 Tex-
tile Workers Union of America, 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 represen-
tative of all employees in the bargaining unit de-
AMERICAN WHOLESALERS, INC. 921
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of em-
ployment, 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 truckdrivers, schedulers, pro-
duction payroll clerks, production ticket sort-
er, log tag clerk, and cafeteria employees em-
ployed by Respondent at its Landover, Mary-
land, location, excluding office clerical
employees, order clerks, payroll clerks, profes-
sional employees, guards, and supervisors as
defined in the Act.
AMERICAN WHOLESALERS, INC.