Porta-Kamp Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1971

189 N.L.R.B. 899 (N.L.R.B. 1971)

PORTA-KAMP MFG CO. 899
Porta-Kamp Manufacturing Company , Inc. and Car-
penters District Council of Houston & Vicinity,
AFL-CIO. Case 23-CA-3846
April 19, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge filed on January 8, 1971, by
Carpenters District Council of Houston & Vicinity,
AFL-CIO, herein called the Union, and duly served
on Porta-Kamp Manufacturing Company, Inc.,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 23, issued a complaint on
January 12, 1971, 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, complaint, and notice
of hearing before a Trial Examiner were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December 8,
1970, following a Board election in Case 23-RC-3371
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; i and that,
commencing on or about Decemer 18, 1970, and at all
times thereafter, Respondent has refused, and contin-
ues 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 January 22, 1971, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint and
also defending against this unfair labor practice
complaint on the ground that the complaint herein is
without merit or, in the alternative, is premature since
the Board has not acted on Respondent's Motion for
Reconsideration of the Decision and Order issued in
consolidated Cases 23-CA-3471 and 23-RC-3371, a
related proceeding.2
On February 1, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, requesting that the Board find
1 Official notice is taken of the record in the representation proceeding,
Case 23-RC-3371 as the term "record" is defined in Secs 102 68 and
102 69(f) of the Board's Rules and Regulations, Series 8, as amended See
LTV Electrovystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello,
269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397
F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
2 Porta-Kamp Manufacturing Company, Inc, 186 NLRB No 97
no merit in Respondent's defense of prematurity since
Section 102.48(d) of the Board's Rules and Regula-
tions provides that a motion for reconsideration does
not stay Board action unless so ordered, and no such
stay was ordered,3 and also requesting the Board to
find that the Respondent has violated Section 8(a)(1)
and (5) of the Act and to issue an appropriate
remedial order. Subsequently, on February 12, 1971,
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
reply to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 in its reply to the
General Counsel's Motion for Summary Judgment,
the Respondent denies that the Union is the exclusive
majority bargaining representative of the employees
in the unit found appropriate in Case 23-RC-3371
and therefore opposes the grant of the Motion for
Summary Judgment. We find no merit in the
Respondent's position.
The election in Case 23-RC-3371 was conducted on
January 7, 1970, pursuant to a Stipulation for
Certification Upon Consent Election. The tally of
ballots showed that of approximately 70 eligible
voters, 69 cast valid ballots of which 20 were cast for,
and 28 against, the Union. There were 21 challenged
ballots which were determinative of the results of the
election.4 Thereafter, on February 26, 1970, the
Acting Regional Director consolidated for hearing
before a Trial Examiner Cases 23-RC-3371 and
23-CA-3471 because the evidence bearing on the
determinative challenged ballots in the representation
proceeding was directly related to the issues in the
unfair labor practice proceeding. On May 26, 1970,
the Trial Examiner issued his Decision and Order
finding that the Respondent had discriminatorily
discharged 20 employees in violation of Section
8(a)(3) and (1) of the Act and that 15 of these 20
Members Brown and Jenkins in the majority, and Chairman Miller
dissentin g
3 On January 28, 1971, the Board panel , Chairman Miller dissenting,
issued, in Cases 23-CA-3471 and 23-RC-3371, an Order denying the
Respondent's Motion for Reconsideration by the Board en bane on the
ground that it contained no matters not previously considered
4 Timely objections to conduct affecting the results of the election were
filed by the Union, but were subsequently withdrawn
189 NLRB No. 137
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who cast challenged ballots were eligible to
vote as discriminatorily discharged employees. The
Respondent filed exceptions to the Trial Examiner's
Decision.
Subsequently, on November 19, 1970, the Board
panel, with Chairman Miller dissenting, issued its
Decision and Order. The Trial Examiner' s unfair
labor practice findings were adopted and the Region-
al Director was directed to open and count the
challenged ballots of the 15 employees found to have
been eligible to vote, to prepare and serve upon the
parties a revised tally of ballots, including the count of
said challenged ballots, and, based upon the revised
tally of ballots, to issue the appropriate certification of
representative or certification of the results of the
election . On November 27, 1970, the 15 challenged
ballots were opened and counted. The revised tally of
ballots was issued showing that of approximately 70
eligible voters, 69 cast ballots of which 35 were cast
for, and 28 against, the Union. The challenges to 6
ballots were sustained. Accordingly, on December 8,
1970, the Regional Director certified the Union as the
exclusive bargaining representative of the employees
in the appropriate unit . Thereafter, on January 28,
1971, the Board panel, with Chairman Miller di ssent-
ing, denied the Respondent's Motion for Reconsider-
ation by the Board en banc in Cases 23-CA-3471 and
23-RC-3371.
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.5
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the 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
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding.
In its reply to the Notice To Show Cause, the
Respondent also argues that special circumstances
require the denial of the General Counsel's Motion
for Summary Judgment and the stay of the instant
proceedings at this time. The alleged special circum-
stances are that the Board's Decision and Order in
consolidated Cases 23-CA-3471 and 23-RC-3371 is
now on appeal by the Respondent in the U. S. Court
of Appeals for the Fifth Circuit, on the issue of the
Respondent's discriminatory layoff of the 20 employ-
ees whose challenged ballots were determinative of
the election and that, in the Respondent's opinion,
there is a strong likelihood that the court will reverse
the Board's finding of discriminatory discharges. In
the event of such a reversal, it would undermine the
Board's determination that the Union is the exclusive
bargaining representative of the employees, thereby
rendering moot a Board decision granting the Motion
for Summary Judgment based upon the Union's
exclusive representative status. The Board is of the
opinion that its Decision and Order and denial of the
Respondent's Motion for Reconsideration by the
Board en banc are both correct and are adequately
supported by the record so that the likelihood is that
the court will enforce the Board's Order, thereby
justifying the grant of the Motion for Summary
Judgment at this time. Further, it does not agree that
the circumstances alleged herein, such as the penden-
cy of the Respondent's petition for review, are so
special as to warrant a denial of a Motion for
Summary Judgment and a stay of the instant
proceeding. To the contrary, the pendency in court of
a petition to review the determination by the Board of
the status of discharged employees whose challenged
ballots were determinative of the representation
election is no defense to a refusal to bargain with the
Union as the exclusive bargaining representative
certified by the Board, "for it is well established that
the pendency of collateral litigation does not suspend
the duty to bargain under Section 8(a)(5)."6 In the Old
King Cole case where the circumstances were almost
identical to those herein, the Sixth Circuit enforced a
Board bargaining Order where an employer refused to
bargain with the certified union because of the
pendency of its petition to review the status of
discharged employees who were found by the Board
and subsequently by the court to have been wrongful-
ly discharged and who had cast determinative
challenged ballots in the representation election. The
court stated at p. 532:
[t]hat good faith is not available as a defense to a
charge of refusal to bargain where the refusal is
based upon an erroneous view of the law . .. .
This last is, in the circumstances of this case,
merely another way of stating that the filing of a
petition for review of an order of the Labor Board
does not operate as a stay of the Board's order,
which is consistent with Section 10(g) of the
National Labor Relations Act . . . .7 This is
5 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 (1941), fn 14, Board and court decisions, including Old King Cole, Inc v
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) N L R B, 260 F 2d 530
6 Keller Aluminum Chairs Southern, Inc, 173 NLRB No 139, citing in 7 Section 10(g) provides "The commencement of proceedings under
PORTA-KAMP MFG. CO 901
basically the situation herein. We shall, according-
ly, grant the Motion for Summary Judgment.8
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a Texas corporation with its principal office
located at 3601 West 12th Street, Houston, Texas,
where it is engaged in the business of manufacturing
and distributing portable camps and portable build-
ings.
During the preceeding 12 months, which period is
representative of all times material herein, Respon-
dent in the course and conduct of its business
described above purchased goods and materials
valued in excess of $50,000 from firms located in States
other than the State of Texas, which said goods and
materials were shipped directly to its Houston, Texas,
facility.
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.
II. THE LABOR ORGANIZATION INVOLVED
Carpenters District Council of Houston & Vicinity,
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 consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees at the
Employer's Houston, Texas, facilities , including
warehousemen , janitors and drivers , excluding all
office clerical employees , guards, watchmen and
supervisors as defined in the Act.
2. The certification
On Jar uary 7, 1970, a majority of the employees of
subsection (e) or (f) of this section shall not, unless specifically ordered by
the court , operate as a stay of the Board's order"
8 Consistent with his dissent in the underlying representation case,
supra, and for the reasons stated therein , Chairman Miller would have
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 23, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on December 8, 1970, 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 December 16, 1970, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 18, 1970, 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 employ-
ees in said unit.
Accordingly, we find that the Respondent has, since
December 18, 1970, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropnate 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 ON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
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 com-
merce 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
certified the results of the election As , in Chairman Miller's view, the
Union has not been validly certified as majority representative, he would
find nothing unlawful in Respondent 's refusal to bargain and would
dismiss the complaint
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate unit.
See Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379
U.S. 817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Porta-Kamp Manufacturing Company, Inc., is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Carpenters District Council of Houston &
Vicinity, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees at
the Employer's Houston, Texas, facilities, including
warehousemen, janitors and drivers, excluding all
office clerical employees, guards, watchmen 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 8, 1970, 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 December 18, 1970, 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, 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 labor 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
Relations Board hereby orders tha Respondent,
Porta-Kamp Manufacturing Company, Inc., 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 conditions
of employment, with Carpenters District Council of
Houston & Vicinity, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees at
the Employer's Houston, Texas, facilities, includ-
ing warehousemen, janitors and drivers, excluding
all office clerical employees, guards, watchmen
and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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, bat gain 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Houston, Texas, facilities copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director
for Region 23, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
9 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 be changed to 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 Carpen-
PORTA-KAMP MFG. CO.
ters District Council of Houston & Vicinity,
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 representative 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 under-
standing in a signed agreement. The bargaining
unit is:
All production and maintenance employees
at the Employer's Houston, Texas, facilities,
including warehousemen, janitors and driv-
ers, excluding all office clerical employees,
903
guards, watchmen and supervisors as defined
in the Act.
PORTA-KAMP
MANUFACTURING
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Dallas-Brazos Building, Fourth Floor, 1125
Brazos Street, Houston, Texas 77002, Telephone
713-226-4296.