Hudson Oxygen Therapy Sales Company

National Labor Relations Board - Board Decisions

Sep 4, 1981

257 N.L.R.B. 1193 (N.L.R.B. 1981)

HUDSON OXYGEN THERAPY SALES COMPANY
Hudson Oxygen Therapy Sales Company and Sales
Drivers and Dairy Employees, Local Union 166,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 21-CA-20208
September 4, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on April 23, 1981, by Sales
Drivers and Dairy Employees, Local Union 166,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on
Hudson Oxygen Therapy Sales Company, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 21, issued a complaint on May 5,
1981, 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 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 March 18,
1981, following a Board election in Case 21-RC-
16488,1 the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about April 10, 1981,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On May 11, 1981, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On May 26, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on May 28, 1981,
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
Judgment should not be granted. Respondent
'Official notice is taken of the record in the representation proceeding,
Case 21-RC-16488. as the term "record" is defined in Secs 10)2 8 and
102 h(g) of the Board's Rules and Regulations. Series , as s mended See
LIT Electrosystems. Inc. 1hh NLRH 938 1967). enfd .188 F2d 83 (4th
Cir. 1968) Goldent ge Beverage Co.. 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969): Intertype C. APtnello, 269 F Supp 573
(DCVa 1967): Follerr Corp.. 164 Nl.R 378 (1967), enfd 397 F2d I91
(7th Cir 1968): Sec. 9(d) of the NIRA. 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 and its response to
the Notice To Show Cause, Respondent admits its
refusal to bargain but challenges the Union's certifi-
cation on the basis that the Board erred in overrul-
ing its objections to the election conducted in the
underlying representation matter and certifying the
Union as the exclusive bargaining representative of
Respondent's employees. Respondent also argues
that the Board erred in failing to grant Respondent
a hearing on the objections. In the Motion for
Summary Judgment, counsel for the General Coun-
sel alleges that Respondent seeks to relitigate issues
previously considered in the underlying representa-
tion case and, also, that no factual issues in the case
warrant a hearing.
Our review of the record herein, including the
record in Case 21-RC-16488, discloses, inter alia,
that, pursuant to a Stipulation for Certification
Upon Consent Election, an election was conducted
among the employees in the stipulated unit on Oc-
tober 3, 1980, and that the tally of ballots furnished
the parties after the election showed 361 votes cast
for, and 173 against, the Union. There were five
challenged ballots, an insufficient number to affect
the results. Respondent filed timely objections
which alleged that in the course of the campaign
union representatives had threatened employees
and security guards with bodily harm, that the
Board agent had created an impression of partiality
by allowing electioneering by union representatives
at the polls, and that the Union had promised wage
increases conditioned on a union vote to some non-
English speaking employees. On December 23,
1980, the Acting Regional Director of Region 21
issued his Report on Objections in which he rec-
ommended that the objections be overruled and
that the Board issue a Certification of Representa-
tive. On January 2, 1981, Respondent filed excep-
tions to the Regional Director's Report on Objec-
tions reiterating its arguments concerning election
behavior and renewing its request for a hearing. On
March 18, 1981, following consideration of the
entire record in the case, the Board issued a Deci-
sion and Certification of Representative adopting
the Regional Director's findings and recommenda-
tions and disavowing only the Regional Director's
257 NLRB No. 154
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion that alleged threats were "not threaten-
ing," finding them merely insufficient to warrant
setting aside the election.
On March 30, 1981, the Union, by letter, request-
ed that Respondent recognize and bargain collec-
tively with it. On April 10, 1981, Respondent, by
letter, refused to recognize and bargain with the
Union.
Respondent in its answer to the Notice To Show
Cause admits that it refused to recognize and bar-
gain with the Union and restates its arguments con-
cerning the campaign raised in its objections to the
election and in its exceptions to the Regional Di-
rector's Report on Objections. It contends, again,
that a hearing should be conducted. Section 102.69
of the Board's Rules and Regulations states clearly
that a party does not have an absolute right to a
hearing on objections to an election. 2 It is only on
a showing of substantial and material issues of fact
concerning conduct sufficient to warrant setting
aside an election that a party is entitled to a hear-
ing. Respondent failed to make such a showing in
the underlying representation proceeding and, by
restating those same arguments in the unfair labor
practice proceeding, it fails again. Thus, Respond-
ent's claim that it is entitled to a hearing is without
merit.
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.
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. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
Respondent, a California corporation, is engaged
in the manufacture of oxygen therapy equipment
and operates a facility located at 27711 Diaz Street,
2 See Modesti Brothers. Inc., 255 NLRB 828 (1981).
' 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 102.6 9(c).
Temecula, California. In the normal course and
conduct of its business operations, Respondent sells
and ships goods and 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 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
Sales Drivers and Dairy Employees, Local
Union 166, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and 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 in-
cluding shipping and receiving employees, du-
plicators, inspectors, truckdrivers, leadmen and
non-exempt plant clerical employees employed
by the Employer at its facility located at 27711
Diaz Street, Temecula, California; excluding
salesmen, office clerical employees, guards,
professional employees and supervisors as de-
fined in the Act.
2. The certification
On October 3, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional 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 March 18, 1981, 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 March 30, 1981, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
1194
HUDSON OXYGEN THERAPY SALES COMPANY
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 10, 1981, and continu-
ing at all times thereafter to date, 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 Respondent has, since
April 10, 1981, 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 Hudson Oxygen Therapy Sales
Company, set forth in section III, above, occurring
in connection with its operations described in sec-
tion 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 commerce.
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 Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 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. Hudson Oxygen Therapy Sales Company is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Sales Drivers and Dairy Employees, Local
Union 166, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees in-
cluding shipping and receiving employees, duplica-
tors, inspectors, truckdrivers, leadmen and non-
exempt plant clerical employees employed by the
Employer at its facility located at 27711 Diaz
Street, Temecula, California; excluding salesmen,
office clerical employees, guards, professional em-
ployees and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since March 18, 1981, 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 April 10, 1981, 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.
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,
Hudson Oxygen Therapy Sales Company, Teme-
cula, 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
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment with Sales Drivers and
Dairy Employees, Local Union 166, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees in-
cluding shipping and receiving employees, du-
plicators, inspectors, truckdrivers, leadmen and
non-exempt plant clerical employees employed
by the Employer at its facility located at 27711
Diaz Street, Temecula, California; excluding
salesmen, office clerical employees, guards,
professional employees and supervisors as de-
fined 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 27711 Diaz Street, Temecula, Cali-
fornia, facility copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 21,
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 21,
in writing, within 20 days from the date of this
' 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."
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSIED BY ORDER OF THE
NATIONAl. LABOR REI.ATIONS 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 Sales Drivers and Dairy Employees,
Local Union 166, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative 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
including shipping and receiving employees,
duplicators, inspectors, truckdrivers, lead-
men and non-exempt plant clerical employ-
ees employed by us at our facility located at
27711 Diaz Street, Temecula, California; ex-
cluding salesmen, office clerical employees,
guards, professional employees and supervi-
sors as defined in the Act.
HUDSON OXYGEN THERAPY SALES
COMPANY
1196