South Pacific Furniture, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1979

241 N.L.R.B. 488 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
South Pacific Furniture, Inc. and International Long-
shoremen's and Warehousemen's Union, Local 142.
Case 37-CA-1485
March 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on August 8, 1978,' by Inter-
national Longshoremen's and Warehousemen's
Union, Local 142, herein called the Union, and duly
served on South Pacific Furniture, Inc., herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 20, issued a complaint on September 14, 1978,
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 Na-
tional Labor Relations Act, as amended. Copies of
the charges, 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 com-
plaint alleges in substance that on April 19, 1978, fol-
lowing a Board election in Case 37-RC-2384, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate2 and that, commencing
on or about May 16, 1978, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
September 25, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. Respondent admits
that it meets the Board's jurisdictional standards and
that the Union is a labor organization within the
meaning of the Act. Respondent denies that a fair
and impartial election was conducted on December
23, 1977, and that the Union was properly certified.
Respondent denies that it is under any lawful obliga-
tion to provide the Union with the requested informa-
tion and material. Respondent admits the allegation
that it refused, and continues to refuse, to meet and
A first amended charge was filed by the Union on September 8, 1978.
2 Official notice is taken of the record in the representation proceeding,
Case 37-RC-2384. 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 Elecirosystems, 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);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
bargain with the Union as the collective-bargaining
representative, but denies the conclusory 8(a)(5) and
(1) allegations. Respondent alleges that the Board's
failure and refusal to afford it a fair and impartial
hearing on the alleged misconduct of the Union were
improper as a matter of law and that therefore the
complaint should be dismissed.
On November 8, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 28,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after 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 attacks the
Union's certification on the basis of certain preelec-
tion conduct by the Union which Respondent alleges
improperly influenced the results of the election.' Re-
spondent further contends that the changed circum-
stances since the Board's certification require a hear-
ing.4
Review of the record herein reveals that in Case
37-RC-2384 the petition was filed by the Union on
October 4, 1977. On November 14, 1977, a Stipula-
tion for Certification Upon Consent Election was ap-
proved by the Acting Regional Director, and the elec-
tion was conducted on December 23, 1977. On
December 28, 1977, Respondent filed timely objec-
tions to the election, which the Regional Director
overruled in their entirety on January 25, 1978. Pur-
suant to timely exceptions to the Regional Director's
report on objections, on April 19, 1978, the Board
More particularly, Respondent alleges that the Union engaged in im-
proper electioneering when its observer stated, "Come on and vote, exercise
your power," after the polls had opened. The Regional Director concluded
that the statement did not constitute electioneering, and the Board agreed,
citing General Shoe Corporation, 77 NLRB 124 (1948). and Milchem Inc.,
170 NLRB 362 (1968).
4 Respondent states that "[slince the date of the Board's decision in the
underlying representation case, substantial changes have occurred with re-
spect to [its] operations." Respondent alleges that, for economic reasons, it
was forced to relocate its operations to a new facility which lacks the essen-
tial equipment and sources needed to continue its operations at the same
scale. As a result, Respondent alleges it was forced to lay off all of its em-
ployees except one and it is uncertain as to when they will be recalled.
Respondent contends that these changed circumstances require that a hear-
ing be conducted to determine the validity of the Board's certification and
Respondent's bligation to bargain.
241 NLRB No. 89
488
SOUTH PACIFIC FURNITURE, INC.
issued a Decision and Certification of Representative
(not published in bound volumes), in which it
adopted the Regional Director's findings and recom-
mendations and certified the Union as the exclusive
bargaining representative of the employees in the ap-
propriate unit.5
On or about May 16, 1978, the Union requested
Respondent to bargain with the Union as the exclu-
sive representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment. On or about May 16, 1978, and thereafter, Re-
spondent refused, and has continued to refuse, to
bargain collectively with the Union as the exclusive
representative of all the employees in the appropriate
unit.
It is well settled that in the absence of newly dis-
covered 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 Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.7
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Hawaii corporation with its princi-
pal office located at Ewa Beach, Hawaii, has been, at
all times material herein, engaged in the business of
manufacturing of furniture on the island of Oahu.
In overruling Respondent's objections, the Board necessarily found that
there were no issues of fact or law warranting a hearing.
6 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 102.69(c).
'Since the new building is in the same geographical area as the old one
and the "substantial changes" alleged by Respondent did not materially
affect the community of interest of the unit, we find the unit is appropriate
for bargaining purposes. See The Ritling Corporation, 203 NLRB 355 (1973).
We also note that Respondent's president, Henry Au Hoy, admits in his
affidavit that Respondent plans to rehire its laid-off employees, and, accord-
ingly, we find that Respondent has not permanently eliminated the bargain-
ing unit. Cf. Sylvania Electric Products, Inc., 122 Nl RB 201 (1958).
During the past calendar year, Respondent sold and
shipped goods valued in excess of $50,000 to points
located outside the State of Hawaii. During the same
12 months, Respondent purchased and received
goods and materials valued in excess of $50,000 from
points and places located outside the State of Hawaii.
We find on the basis of the foregoing that Respon-
dent 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 LABOR ORGANIZATION INVOLVED
International Longshoremen's and Warehouse-
men's Union, Local 142, is a labor organization
within the meaning of Section 2(5) of the Act.
II11. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees of the Employer employed at its
Ewa Beach, Hawaii location: excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On December 23, 1977, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 20, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on April 19, 1978, 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 May 16, 1978, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
May 16, 1978, and continuing at all times thereafter
489
1)1( ISI()NS ()I NAItI()NAI I.()BOR RI.A I IONS B()ARI)
to date, Respondent has refused, and conti nues to re-
fuse, to recognize and bargain with thie Ulnion as tile
exclusive representative for collective hargainin ot
all employees in said unit.
Accordingly, we find that Respondent has. since
May 16. 1978, and at all times thereafor, refused to
bargain collectively with the l;ion as the exclusive
representative of' the employees in the appropriate
unit and that, hby such ref'usal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the neaning g of Section 8(a)(5) and (I) of the
Act. We fuirther ind that. h reft'sirig to fulrnish tile
Union with requested data and intrimation pertain-
ing to rates of pay, wages, hours and thel ternis alld
conditions of employment of unit employees, Respon-
dent has engaged in alnd is engaging in untfair labor
practices within the meaniing of' Section 8(a)( I ) and
(5) of the Act.
IV. ill il It (l O IIIL. NIAIR ABOR PRA( I ( S
I PON (()NIMIFR(
The activities of Respondent set ftorth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close. intiliate.
and substantial relationship to trade, traffic, aid comn-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
v. TIMt RI xtMt)Y
llaving found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) 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 ap-
propriate unit and, if' an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultr ('onmpatnv, Inc.. 136 NLRB
785 (1962): C'omerce (ortpatyl d/h/a .inlar Hotel,
140 NLRB 226. 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnten
Construction Cormpany, 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:
C ()N( I SI ()NS () lxwA
I. South 'acific Furniture. Inc., is an employer en-
gaged in commerce xwithin the meaning oft' Section
2(6) and (7) of the Act.
2. I nternational I ongshiornienll's anid Warehouse-
men's lUnion Iocal 142, is a labor organization
within the micaling of Section 25) of' the Act.
3. AII employees of the nimploer employed at its
E'iwa Beach. [laxvaii. location, excluding all office
clerical employees. prolessional employees, guards
and supervisors as defined in the Act, constitute a
unit appropriate lor the purposes of collective bar-
gaining within the meaning otf Section 9(b) of the Act.
4. Since April 19, 1978. the above-named labor or-
ganizationI has been a;id now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit ftor the purpose of collective
bargaining within the meaninig of Section 9(a) of the
Act .
5. By refusinig on or about May 16, 1978, and at all
times thereafter, to bargain collectively with the
above-narmed labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit. Respondent has en-
gaged in and is engaging in untfir labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By refusing to furnish the Union with requested
data and information pertaining to rates of pay.
wages, hours, and other terms and conditions of em-
ployment of unit ernploees. Respondent has engaged
in and is engaging in unf'ir labor practices within the
meaning of' Section 8a)(5) of the Act.
7. By the atoresaid reftisal to bargain. Respondent
has interfered with, restrained, and coerced, and is
intelrferilig with, restraininig, 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 uitair labor practices within the mean-
ing of Section 8a)( I ) of the Act.
8. The aoresaid unfailr labor practices are unfair
labor practices affecting commnierce within the mean-
ing of' Section 2(6) and (7) of' the Act.
ORDER
Pursuant to Section IO(c) of' the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
South Pacific Furniture. Inc.. Ewa Beach, Hawaii, its
officers, agents, successors, and assigns, shall:
1. ('ease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay. wages, hours, and other terms and con-
ditions of employment ith International Longshore-
men's and Warehousemen's Union, Local 142, as the
490
S(t I i '\(t t( I R I i1\(
excltlsivJ hargiilillg rprlesenlttixte of ils cplloNes
in tie tflloxvinlg alpproprialte unit:
A\ll Cilplo,,cc, of1 tlhc I1ploc1 N 1l c hil cd at ils
lksa eaci . ,a\\kani locartion: e\tixclug all office
clerical ei ploN\es prtcsss. lossi l cIiplo\ C\s.
guards ;Ills irs s detlined in tlh Act.
(h) Refusing to turnish the aIho,\c-llanld labor or-
gallilZatioll ith data and intormatlllion pertainin to
rates of pa\ wages. hours. and other teIms and on-
ditions of enmplo.mit lt tile ciiploxcs in tilh aorc-
said hargaining nit11.
(c) In a like or related mann;er. interterin.ig itl
rcstlaining, orl coolill CillploSccs i te C\Crcis o'
the rights guaranteed them in Sectionl 7 of the Act.
2. l';ake tile fotllo\vinei affirmiatixe action, \ hich the
Board finds \kill etfectuate the policies of the Act:
(a) Upon request bargain \itlh thle abo,,c-nanCdl
labor organization as the exclusive lrepresetnt;ativCe of
all elmplorees in the atoresaid appropi;ate unit with
respect to rates of' pa. wages, hours, and other terlms
and conditions of cimplor llent ad, it'll Iunderstand-
ing is reached, enibod sIuch unitderstaniling in
signed agreemlent.
(h) urnish the ahbov-c-nallld labor orilani/atlon
with the requested data ;nd inf;,mationi pertaiining to
rates of pa, . waiges. hourl,. land oilrll ternis and con-
ditions of' cnplo nimcnl ot the employees in the afre-
said bargaining unit.
(c) Post at its l'a Beach. Hawaii place of' busi-
ness copies of the attached notice niarked -Xppen-
dix."'' (Copies of' said notice. on tormiis provided hb the
Regional Director fbr Region 20, afier bhei ig dul!
signed hy Respondent's repre.entIatixc, shall be
posted h\ Respondent iniedlialtelN upon receipt
thereof, and he maintained bh it for 6(( consecutive
da\s thereafter, in conspicuous places includilin all
places here notices to emploees are customaril\
posted. Reasonable steps shall he taken bh Respon-
1) tI ( Ci C ltI t hi t i tIIs I (r I i s rI itci [ t I l 1Cl ( L ill It I LraltOi Stets
(' irlt ol Ap ls the wd HI te 1oli-. I jetld. 1 2i i ',*le td ()rdel the
Nalion.al I ihbl Re.htiolns Board" shlil rd ' sted Piurtlit .I Jdgaillent
I the I iled State ( Olil A iins l i lnlnf .nn .tL/ ()rel el the Nallo il
labl Relatiins B-ld
dent to insur e that said notices are not altered de-
taced. or covered bh ally other material.
(d) Notil't the Retional [)irector fr Region 2(1, in
writing. \\ thill 2() dals roml the date of' this Order,
\ halt step,, h1ve been tken to (com1pl herecxith.
AlPIN I)IX
\(II I]' lS l ) oYIIS
P(sI I-I) 1' ()RD R (iI III
NAII(N,\I l AI(IR R I IlIONS B)\RI)
A\i Agcen) o' the iinitted States ( olvr irnlen t
Wi \xill t No refuse to aruain collectivel\
concerning rates otf pas, \rIages hours, and other
terms andl conditions of employment uith Inter-
national [ ongshoremen's and Warehousemen's
I nion. l.ocal 142. as the exclusive representative
of the emnployees in the bargaining unit described
below.
WI- \vit 1 NIt i 1ann like or related manner
inlterfeire with, restrain. or coerce tour employees
in the exercise of the rights guaranteed them bh
Section 7 of' the Act.
WI' \x II I urnish the abhove-named I lion with
the data and ino1rmation it requested pertaining
to rates of pa;i, wages, hours. and other terms
and conditions of eriploN ment of the employees
in the bargaining unit described below.
Wi'' ti, upon request, bargain with the
above-nla med I iionl. as the exclusive representa-
tixe oft all emploNees in the bargaining unit de-
scribed elox,. ith respect to rates of pas.
x\ ages. hours. aind other terms andl conditions of
emnlo\nientl aind, if an understanding is reached.
Cmbndl \ such Ulnderstanding in a signed agree-
mei. 1 lhe bargaining unit is:
AII cmplo cs of the Emploer eniploNed at its
1\% a Beach, l la\ aii location: excluding all of-
fice clerical enmplo\ees proftessional emplo)-
cs., guards anid superisors as defined in the
Act.
So()t 111ii I \(11I( I[t RNItR I(.
491