Nestier, Division of Buckhorn, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1983

266 N.L.R.B. 968 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nestier, Division of Buckhorn, Inc. and Miscellane-
ous Warehousemen, Drivers & Helpers Local
986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of Amer-
ica. Case 21 -CA-21749
9 June 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a charge filed on 10 November 1982 by
Miscellaneous Warehousemen, Drivers & Helpers
Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
herein called the Union, and duly served on Nes-
tier, Division of Buckhorn, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 21, issued a complaint on 30 November
1982 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 (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and the complaint and notice
of hearing before an administrative law judge were
duty served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on 22 October
1982, following a Board election in Case 21-RC-
16971, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about 11 May
1982, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On 20 De-
cember 1982 Respondent filed its answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint.
On 27 January 1983 counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on 28 January
1983 the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case 21-RC-16971, 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 LI7I' Eectrosytrenms, 166 NL RB 938 (1967), enfd. 388 F.2d 683 (4th
Cir 1968); Golden Age] Beverage Co.. 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir 1969); Intertype Co. v. Penello, 269 F Supp. 573 (D.C.Va
1967); Follett Corp.. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir.
1968). Sec. 9(d) of the NLRA, as amended
thereafter filed a response to the Notice To Show
Cause.
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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint Respondent
admits the Union's requests for bargaining and its
refusal to bargain, but attacks the Union's certifica-
tion in the underlying representation proceeding.
Respondent contends in both the answer to the
complaint and response to the Notice To Show
Cause that the election was improperly conducted.
Respondent alleges that, because the Board failed
to provide a Spanish-speaking Board agent, the
union observer interpreted voting instructions to
employees, and thereby destroyed laboratory con-
ditions necessary for a fair election. Although Re-
spondent filed no exception to the Regional Direc-
tor's recommendation to overrule its objection al-
leging that an employee spoke in Spanish to other
employees waiting to vote, Respondent renews this
objection in its answer to the Notice To Show
Cause. It now asserts that employees waiting in
line to vote were told in Spanish to vote for the
Union or that an immigration check would ensue
and that they would lose their jobs because they
did not have green cards. Respondent states that as
a result of this information it examined the immi-
gration status of its employees and has determined
that the majority of them did not have valid green
cards and, therefore, were not eligible voters
within the meaning of the Act.
Review of the record herein, including the
record in Case 21-RC-16971, reveals that an elec-
tion was conducted on 30 April 1982 in the unit
agreed to be appropriate which resulted in a tally
of 22 votes for, and 4 votes against, the Petitioner,
with 5 challenged ballots. On 7 May 1982 Re-
spondent filed objections to conduct affecting the
results of the representation election alleging, inter
alia, that the election should be set aside because
the Board failed to provide a Spanish-speaking
agent, a Spanish-speaking union observer instructed
voters, and an employee spoke in Spanish to em-
ployees who were waiting to vote. On 6 August
1982 the Regional Director for Region 21 issued
his Report on Objections, recommending that all of
Respondent's objections be overruled. On 18
August 1982 Respondent filed with the Board ex-
ceptions to the Regional Director's Report on Ob-
jections reiterating its objection to the Board's fail-
266 NLRB No. 173
968
NESTIER, DIVISION OF BUCKHORN, INC.
ure to provide a Spanish-speaking Board agent and
to the Union's Spanish-speaking observer instruct-
ing the voters. On 22 October 1982 the Board
issued its Decision and Certification of Representa-
tive, certifying the Union as the exclusive bargain-
ing agent.
As noted in its answer to the complaint and its
opposition to the Motion for Summary Judgment,
Respondent does not deny the essential elements of
its refusal to bargain but attacks the Union's certifi-
cation in the underlying representation proceeding.
In so doing, Respondent renews an objection con-
cerning an employee's conversation with employ-
ees who were waiting to vote. While Respondent
did not except to the Regional Director's recom-
mendation to overrule this objection, Respondent
now asserts that it has discovered the content of
the employee's conversation-a threat to cause an
immigration check if the employees did not vote
for the Union. Respondent further asserts that in
light of this new evidence it conducted a check on
its employees' immigration status and discovered
that the majority of them did not have valid green
cards and thus were not eligible voters.
It appears that, with the exception of the allega-
tions made in connection with the renewed objec-
tion, Respondent is attempting in this proceeding
to relitigate issues fully litigated and determined in
the representation proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
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 discov-
ered 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. In
this regard, we find nothing to indicate that the al-
leged content of the employee's conversation with
prospective voters or the immigration status of the
voters was not previously available or constituted
newly discovered evidence. 3 We therefore find
See Pittlsburgh Plate Glass v. NLRB, 313 US 146, 162 (1941); Rules
and Regulations of the Board, Secs 102,67(f) and 102.69(c)
3 Moreover. assuming arguendo that Respondent had established in the
representation proceeding that the majority of voters were illegal aliens,
the certification of the Union would not have been affected, as immigra-
tion status is not a consideration in determining the eligibility of employ-
ees to vote in a Board-conducted election See Amnav' Bakery & .oodle
Co.. 227 NI.RB 214 (1976), and cases cited therein at fn. 3
that Respondent has not raised any issue which is
properly litigable in this unfair labor practice pro-
ceeding. Accordingly, we grant the Motion for
Summary Judgment. 4
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the man-
ufacture of shelving products with a facility locat-
ed at 1901 El Segundo Boulevard in Compton,
California. In the course and conduct of its busi-
ness operations at this location, Respondent annual-
ly purchases and receives goods and products
valued in excess of $50,000 directly from suppliers
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 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
Miscellaneous Warehousemen, Drivers & Help-
ers Local 986, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men and truckdrivers employed by Nestier,
Division of Buckhorn, Inc., at its facility locat-
ed at 1901 El Segundo Boulevard, Compton,
California; excluding all other employees,
guards and supervisors as defined in the Act.
2. The certification
On 30 April 1982 a majority of the employees of
Respondent in said unit, in a secret-ballot election
4 Member Hunter notes he was not on the panel in the underlying rep-
resentation proceeding hut he accepts the result reached there for institu-
tional reasons. Accordingly. he joins in granting the Motion for Summary
Judgment.
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted under the supervision of the Regional
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 22 October 1982 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 11 May 1982, 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 above-described unit. Com-
mencing on or about 11 May 1982, 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
11 May 1982, 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 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 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 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 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 Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817; Burnett Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Nestier, Division of Buckhorn, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Miscellaneous Warehousemen, Drivers &
Helpers Local 986, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
shipping and receiving employees, warehousemen
and truckdrivers employed by Nestier, Division of
Buckhorn, Inc., at its facility located at 1901 El Se-
gundo Boulevard, Compton, California; excluding
all other employees, guards and supervisors as de-
fined 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 22 October 1982 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 11 May 1982, 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 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent 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 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
970
NESTIER, DIVISION OF BUCKHORN, INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Nestier, Division of Buckhorn, Inc., Compton,
California, its officers, agents, successors, and as-
signs, 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 Miscellaneous War-
ehousemen, Drivers & Helpers Local 986, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men and truckdrivers employed by Nestier,
Division of Buckhorn, Inc., at its facility locat-
ed at 1901 El Segundo Boulevard, Compton,
California; excluding all other employees,
guards and supervisors 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:
(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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facility at 1901 El Segundo Boule-
vard, Compton, California, copies of the attached
notice marked "Appendix." 5 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 Respondent im-
mediately upon receipt thereof, and be maintained
5 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
by it for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure 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.
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 Miscellaneous Warehousemen, Drivers &
Helpers Local 986, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, as the exclusive represent-
ative of the employees 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 guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees,
shipping and receiving employees, ware-
housemen and truckdrivers employed by
Nestier, Division of Buckhorn, Inc., at its fa-
cility located at 1901 El Segundo Boulevard,
Compton, California; excluding all other em-
ployees, guards and supervisors as defined in
the Act.
NESTIER, DIVISION OF BUCKHORN,
INC.
971