Banner Bedding, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1975

218 N.L.R.B. 361 (N.L.R.B. 1975)

BANNER BEDDING, INC. 361
Banner Bedding, Inc. and United Furniture Workers
of America, Local 1010, AFL-CIO. Case 31-CA-
4962
June 10, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on December 20, 1974, by
United Furniture Workers of America, Local 1010,
AFL-CIO, herein called the Union, and duly served
on Banner Bedding, Inc., herein called the Respon-
dent, the General Counsel of the National Labor
Relations, Board, by the' Regional Director for
Region 31, issued a complaint and notice of hearing
on January 28, 1975, 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 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 November 18,
1974, following a Board election in Case 31-RC-
2788, the Union was duly certified as the, exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about November 26, 1974, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On February 5, 1975,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On March 10, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached, submit-
ting, in effect, that the Respondent , in its answer, is
attempting to relitigate issues which have been
disposed of by the Board in the underlying represen-
tation proceeding and that there are no matters
requiring a hearing . On March 13, 1975, the
Respondent filed an Argument Against Motion for
1 Official notice is taken of the record in the representation proceeding,
Case 31-RC-2788, 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
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
(C.A. 5, 1969); Intertype Co. v Penello, 269 F.Supp. 573 (D.C. Va., 1957);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (CA. 7, 1968); Sec.
9(d) of the NLRA.
2 214 NLRB No. 139, Member Kennedy dissenting.
218 NLRB No. 57
Summary Judgment. -Subsequently, on March 14,
1975, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause entitled "Supplemental Points and Authorities
in Opposition to Motion for Summary Judgment."
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, the
Board makes the following:
Ruling on the Motion for Summary Judgment
The thrust of Respondent'ss answer to the com-
plaint, as well as of its argument against motion for
summary judgment and supplemental points and
authorities in opposition thereto, attacks the Board's
Decision and Certification of Representative,2 issued
on November 18, 1974, in which the Board, after
having considered the Regional Director's report, the
Union's exceptions and brief, the Respondent's
answering brief, and the entire record in this case,
held, contrary to the Regional. Director,3 that the
challenge to the ballot of employee Hart be sus-
tained.4 In so concluding, the Board, in view of the
particular facts of this case, deemed. it necessary to
consider this to be a narrow exception to the'rule of
Norris-Thermador, as both parties admit that an oral
agreement was concluded that Hart was to be
excluded as an ineligible voter in the election. The
Board noted that such an agreement , on its face and
on the basis of facts developed by the Regional
Director's investigation, did not contravene any
Board policy or statutory proscription. Furthermore,
the Board noted that it was clearly admitted that but
for the oral agreement, reached in a Board hearing
room before a Board agent, the parties were prepared
to proceed to hearing on the eligibility issue and
would not have signed the consent-election stipula-
tion. Accordingly, under these specific circum-
stances, the Board concluded, that it would be
improper and inequitable not to regard as final and
binding the oral agreement which both parties
3 The Regional Director concluded that the requirements of a written,
signed, and express agreement, set forth in Norris-Thermador Corporation,
119 NLRB 1301 ( 1958),- had not been satisfied and, therefore, the oral
agreement excluding part-time employee Hart as an ineligible voter was not
controlling and recommended that the challenge to Hart 's ballot be
overruled.
4 In the absence of exceptions , the Board adopted, pro forma, the
Regional Director's recommendation that the challenge to the ballot of
another employee be sustained.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acknowledged was made and which was a critical
predicate to the consent election itself,5 and to
adhere to the technical rule of Norris-Thermador in
this instance would be to deny the substantive effect
of Norris-Thermador, which was to give Board
sanction and encouragement to clearly expressed,
understood, and admitted preelection agreements
between the parties. Thus, the Respondent, by
attacking the legal effect or validity of the Board's
Decision and Certification of Representative issued
on November 18, 1974, is attempting to relitigate the
same issues which it raised and litigated in the prior
representation proceeding, Case 31-RC-2788.
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 the Respondent in this
proceeding 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. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times
material herein , a corporation duly organized under
and existing by virtue of the laws of the State of
California, with an office and principal place of
business located in San Bernardino , California,
where it is engaged in the manufacture and sale of
mattresses and box springs . Respondent, in the
course and conduct of its business operations,
annually sells and ships goods 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
5 The Board emphasized that in this narrow exception to Norris-
Thermador, it neither expressly nor constructively overruled, the holding of
that case.
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, Local 1010,
AFL-CIO, 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees,
including shipping and receiving employees and
truck drivers. Excluding: All office clericals,
professionals, guards and supervisors as defined
in the Act.
2. The - certification
On June 28, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted pursuant to a Stipulation for Certification
Upon Consent Election, under the supervision of the
Regional Director for Region 31, 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
November 18, 1974, 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 November 21, 1974, 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 November 26, 1974, 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 employees in said unit.
6 See Pittsburgh Plate Glass -Ca v. N.L.RB., 313 US. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102 .69(c).
BANNER BEDDING, INC.
Accordingly, we fmd that the Respondent has,
since November 26, 1974, 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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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. Banner Bedding, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Furniture Workers of America, Local
1010, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including shipping and receiving employees and
363
truck drivers. Excluding: All office clericals, profes-
sionals, 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 November 18, 1974, 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 November 26, 1974,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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)(l) 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 that Respondent,
Banner Bedding, Inc., San Bernardino, 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 United Furniture
Workers of America, Local 1010, AFL-CIO, as the
exclusive bargaining, representative of its employees
in the following appropriate unit:
All production and maintenance employees,
including shipping and receiving employees and
truck drivers. Excluding: All office clericals,
professionals, 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:
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 San Bernadino, California, facility,
copies of the attached notice marked "Appendix." 7
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 Respon-
dent to insure 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 herewith.
MEMBER KENNEDY, dissenting:
I would dismiss the 8(a)(5) complaint in this case
because the Board's certification which underlies this
refusal-to-bargain complaint is invalid.
For the reasons which are fully set forth in my
dissenting opinion in Banner Bedding, Inc., 214
NLRB No. 139 (1974), I view my colleagues'
certification of the Union as a sharp departure from
17 years' precedent of following the Norris-Therma-
dor rule. Since I would not have issued a certification
to the Union in the representation case, this
complaint, in my view, lacks merit.
7 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 ofAppeals 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 United
Furniture Workers of America, Local 1010, 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 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 production and maintenance employees,
including shipping and receiving employees
and truck drivers. Excluding: All office
clericals, professionals, guards and supervi-
sors as defined in the Act.
BANNER BEDDING, INC.