Butler-Johnson Corp.

National Labor Relations Board - Board Decisions

Aug 23, 1977

231 N.L.R.B. 542 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butler-Johnson Corporation and Freight, Construc-
tion, General Drivers, Warehousemen and Helpers
Union, Local 287, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 20-CA-12526
August 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on February 25, 1977, by
Freight, Construction, General Drivers, Warehouse-
men and Helpers Union, Local 287, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on Butler-Johnson Compa-
ny, herein called Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 20, issued a complaint
and notice of hearing on March 11, 1977, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (I) 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 Administrative 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 December 22,
1976, following a Board election in Case 20-RC-
13278 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about February 17, 1977, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On March 24, 1977, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On April 24, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 3, 1977, the Board
issued an order transferring the proceeding to the
' Official notice is taken of the record in the representation proceeding,
Case 20-RC-13278, as the term "record" is refined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, 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);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
231 NLRB No. 84
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
Notice To Show Cause entitled "Respondent's
Answer to Notice To Show Cause." Attached to the
response was Respondent's request for oral argument
which was opposed by the General Counsel.
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,2 the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, and affirmative
defenses raised therein, and in its response to the
Notice To Show Cause, Respondent contests the
validity of the certification on the basis of its
objections to the election and contends that the
denial of a hearing on the substantial and material
issues of fact raised by the objections constitutes a
denial of due process. The General Counsel contends
that Respondent's answer admits each and every
factual allegation of the complaint and that Respon-
dent is merely attempting to relitigate matters which
were or could have been disposed of in the
underlying representation case. We agree with the
General Counsel.
Our review of the record, including that of the
underlying representation case (20-RC-13278), re-
veals that, pursuant to a Decision and Direction of
Second Election by the Board,3 an election was held
on July 23, 1976, in which the Union prevailed by a
vote of 12 to 8, with 3 challenged ballots. Respondent
filed timely objections, alleging, in substance, as
follows: (I) Union material misrepresentations of
fact concerning (a) Respondent, its management,
and activities, (b) initiation fees, (c) collective
bargaining, and (d) risks to employees if the Union
lost the election; (2) union conduct including (a)
promises of benefits, (b) threats, (c) creating a
preelection "atmosphere of fear," and (d) requiring
employees to pay initiation fees as a condition to
filing a representation petition; (3) Board agent
misconduct demonstrated, inter alia, by (a) the
manner of his participation in the challenge proce-
dure, (b) his intimidating Respondent's observer, and
(c) his repeated request for payroll information on
2 Respondent's request for oral argument is hereby denied as the General
Counsel's motion and Respondent's answer to the Notice To Show Cause
adequately present the positions of the parties.
3 The first election held on January 23, 1976, pursuant to a Stipulation
for Certification Upon Consent Election, was ordered set aside by the Board
on June 18, 1976, which adopted the Regional Director's recommendation
to that effect based on Respondent's objections to the conduct of the
election.
542
BUTLER-JOHNSON CORP.
employees whom the Union indicated it would
challenge; and (4) Board agent misconduct by (a)
failing to seal the ballot box properly, (b) inserting
the incorrect name of the Union in the stipulation,
and (c) utilizing see-through paper ballots.
After investigation, the Regional Director, on
November 2, 1976, issued a Supplemental Decision
in which she concluded that Respondent's objections
did not raise substantial or material issues with
respect to the election and recommended that they
be overruled and that an appropriate certification
issue. Respondent filed with the Board detailed
exceptions with supporting brief and affidavits,
requesting, in substance, that the election be set aside
and a new election be conducted or, in the alterna-
tive, that an evidentiary hearing be held to resolve
the substantial and material factual issues raised by
its objections. On December 22, 1976, the Board
issued a Supplemental Decision and Certification of
Representative (1) finding that Respondent's excep-
tions raised no material issue of law or fact
warranting reversal of the Regional Director or
requiring the holding of a hearing, (2) adopting the
Regional Director's findings and recommendations,
and (3) certifying the Union. It thus appears that
Respondent is attempting to litigate matters which
were or could have been heard and determined in the
representation proceeding. Specifically, with respect
to the hearing contention, it is well established that
parties do not have an absolute right to a hearing. It
is only when the moving party presents a primafacie
showing of "substantial and material factual issues"
which would warrant setting aside the election that
he is entitled to an evidentiary hearing 4 and here the
Board specifically found that Respondent's excep-
tions raised no issues warranting a hearing. It is clear
that, absent arbitrary action, this qualified right to a
hearing satisfies all statutory and constitutional
requirements.5
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. 6
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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
N.L.R.B. v. Modine Manufacturing Co., 500 F.2d 914 (C.A. 8. 1974),
enfg. 203 NLRB 527 (1973); Handy Hardware Wholesale. Inc., 222 NLRB
373 (1976): Janler Plastic Mold Corporation, 191 NLRB 162 (1971): Crest
Leather Manufacturing Corporation, 167 NLRB 1085 (1967), and cases cited
therein.
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. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation organized under the
laws of the State of California, operates a facility
located in San Jose, California, where it is engaged in
the nonretail distribution of building materials.
During the preceding calendar year, a representative
period, Respondent, in the course and conduct of its
business operations, purchased and received goods,
materials, and supplies valued in excess of $50,000
directly from suppliers located outside the State of
California. During the same period, Respondent sold
and shipped products valued in excess of $50,000
directly to customers located outside the State of
California.
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.
11. THE LABOR ORGANIZATION INVOLVED
Freight, Construction, General Drivers, Ware-
housemen and Helpers Union, Local 287, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen 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
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 employees of the Employer employed at its
1480 Nicora Avenue, San Jose, California, loca-
5 Amalgamated Clothing Workers of America [Winfield Manufacturing
Company, Inc.] v. N. LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970).
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).
543
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion; excluding salesmen, office clerical employ-
ees, guards and supervisors as defined in the Act.
2. The certification
On July 23, 1976, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 20, 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 December 22, 1976, 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 January 18, 1977, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about February 17, 1977, and continuing at all
times thereafter to date, 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 Respondent has, since
February 17, 1977, 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 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 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
1. Butler-Johnson Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Freight, Construction, General Drivers, Ware-
housemen and Helpers Union, Local 287, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All employees of the Employer employed at its
1480 Nicora Avenue, San Jose, California, location;
excluding salesmen, 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 December 22, 1976, 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 February 17, 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 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.
544
BUTLER-JOHNSON CORP.
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 the Respondent,
Butler-Johnson Corporation, San Jose, 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 Freight, Construc-
tion, General Drivers, Warehousemen and Helpers
Union, Local 287, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All employees of the Employer employed at its
1480 Nicora Avenue, San Jose, California, loca-
tion; excluding salesmen, office clerical employ-
ees, 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 facility located in San Jose,
California, copies of the attached notice marked
"Appendix." 7 Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by Respondent's representa-
tive, 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 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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
Freight, Construction, General Drivers, Ware-
housemen and Helpers Union, Local 287, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen 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 employees of the Employer employed at
its 1480 Nicora Avenue, San Jose, Califor-
nia, location; excluding salesmen, office
clerical employees, guards and supervisors
as defined in the Act.
BUTLER-JOHNSON
CORPORATION
545