A & Z, Inc., d/b/a Albright and Zimmerman

National Labor Relations Board - Board Decisions

May 21, 1982

261 N.L.R.B. 1035 (N.L.R.B. 1982)

ALBRIGHT & ZIMMERMAN
A & Z, Inc., d/b/a Albright Zimmerman and Dis-
trict 65, United Automobile, Aerospace & Agri-
cultural Implement Workers of America. Case
31-CA-11815
May 21, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on January 12, 1982, by Dis-
trict 65, United Automobile, Aerospace & Agricul-
tural Implement Workers of America, herein called
the Union, and duly served on A & Z, Inc., d/b/a
Albright & Zimmerman, herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
31, issued a complaint on February 9, 1982, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional 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 December 4,
1981, following a Board election in Case 31-RC-
5017, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about December 21, 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 February 22, 1982,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On March 15, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 22,
1982, 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 31-RC-5017, as the term "record" is defined in Secs. 102.68
and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended.
See LTV Electrosystems Inc., 166 NLRB 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.
261 NLRB No. 150
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
denies that the Board's certification of the Union as
the exclusive representative of the aforesaid em-
ployees was valid, contending instead that the cer-
tification was "both unlawful and improper and,
therefore, null and void." Respondent also denies
that the Union has requested to bargain with Re-
spondent. 2 The General Counsel argues that there
are no factual issues present which would require a
hearing, since the issues underlying Respondent's
opposition were previously litigated and decided in
the companion representation proceeding.
Review of the record herein reveals that in Case
31-RC-5017 the petition was filed by the Union on
February 27, 1981. The parties entered into a Stip-
ulation for Certification Upon Consent Election
agreement. The election was held on May 28, 1981.
At the conclusion of the balloting, the tally re-
vealed that 31 votes had been cast for and 16 votes
had been cast against the Union. There were 10
challenged ballots. Respondent filed objections to
the conduct of the election. On July 30, 1981, the
Regional Director issued and served on the parties
a Report on Objections in which he recommended
that the objections be overruled and that a certifi-
cation of representative be issued. Respondent, on
August 12, 1981, filed exceptions to the Regional
Director's Report on Objections. On December 4,
1981, the Board adopted the conclusions and rec-
ommendations of the Regional Director and issued
a Decision and Certification of Representative (not
reported in volumes of Board Decisions).
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. 3
2 Notwithstanding Respondent's contention to the contrary, the record
reveals that by letter dated December 14. 1981, the Union did request to
meet and bargain with Respondent concerning wages, hours, and work-
ing conditions for the employees in the unit found appropriate. By return
letter dated December 21, 1981, Respondent's attorney implicitly ac-
knowledged receipt of the Union's December 14 letter and stated, "Our
client intends to test the [Board] certification in the appropriate legal
forum."
a See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c)
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 is a California corporation engaged
in the manufacture of furniture in Van Nuys, Cali-
fornia. In the course and conduct of its business op-
erations, Respondent annually sells and ships goods
and services 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.
11. THE I.ABOR ORGANIZATION INVOLVED
District 65, United Automobile, Aerospace &
Agricultural Implement Workers 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
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, maintenance, shipping, receiv-
ing and trucking employees; excluding all
office employees, sales employees, guards and
supervisors as defined in the Act.
2. The certification
On May 28, 1981, 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 31, 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 December 4, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 14, 1981,
and at all times thereafter, the Union has requested
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 21, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
December 21, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 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-
1036
ALBRIGHT & ZIMMERMAN
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. A & Z, Inc., d/b/a Albright & Zimmerman, is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. District 65, United Automobile, Aerospace &
Agricultural Implement Workers of America, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All production, maintenance, shipping, receiv-
ing, and trucking employees, excluding all office
employees, sales 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 4, 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 December 21, 1981,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, 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)(1) 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,
A & Z, Inc., d/b/a Albright & Zimmerman, Van
Nuys, 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 District 65, United
Automobile, Aerospace & Agricultural Implement
Workers of America, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All production, maintenance, shipping, receiv-
ing and trucking employees; excluding all
office employees, sales 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 Van Nuys, California, facility
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's representative, 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 Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
4 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 Lahbor Relations Board"
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED 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 District 65, United Automobile, Aero-
space & Agricultural Implement Workers of
America, as the exclusive representative of the
employees in the bargaining unit described
below.
WE WIIL 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 WitL., 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, maintenance, shipping, re-
ceiving and trucking employees; excluding
all office employees, sales employees, guards
and supervisors as defined in the Act.
A & Z, INC., 1)/B/A ALBRIGHT &
ZIMMERMAN
1038