Howard Johnson

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard Johnson Company, d/b/a Howard Johnson Distribution Center and Dallas General Drivers, Warehousemen and Helpers Local 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 16-CA-8628 March 17, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge filed on August 3, 1979, by Dallas General Drivers, Warehousemen and Helpers Local 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Howard Johnson Company, d/b/a Howard Johnson Distribution Center, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint on September 6, 1979, 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 June 19, 1979, following Board elections in Cases 16-RC- 7728 and 16-RC-7729 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the units found appropriate;¹ and that, commencing on or about July 11, 1979, and at all times thereafter, Respondent has refused, and continues 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 September 13, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 19, 1979, counsel for the General Counsel filed directly with the Board a "Motion To Strike Certain Portions of Respondent's Answer; Transfer to and Continue Proceeding Before the Board and for Summary Judgment." 1 Official notice is taken of the record in the representation proceedings, Cases 16-RC-7728 and 16-RC-7729, 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 (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. Subsequently, on November 27, 1979, 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 response 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 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 In its answer to the complaint, Respondent attacks the Union's certifications on the basis that the Regional Director's investigation of Respondent's election objections in the underlying representation proceedings was insufficient and, accordingly, it was denied due process. In addition, Respondent, in its answer and response to the Notice To Show Cause, raises an issue concerning the Union's status as a labor organization within the meaning of Section 2(5) of the Act. Respondent also contests the validity of the allegations in paragraphs 1, 11, and 12 of the complaint regarding postcertification conduct. Review of the record herein, including the record in Cases 242 NLRB No. 183 (1979) (Case 16-RC-7728) and 242 NLRB No. 184 (1979) (Case 16-RC-7729), reveals that, pursuant to Stipulations for Certification Upon Consent Election, elections were conducted on May 24, 1978, and August 7, 1978. The results of the elections were nine for, and none against the Union in Case 16-RC-7728, and two for and none against the Union in Case 16-RC-7729; there were no challenged ballots in either election. Respondent thereafter filed four identical objections to conduct affecting the results of each election, alleging that: (1) the Regional Director and the General Counsel had violated the Freedom of Information Act in refusing the Employer's request to disclose the authorization cards submitted in support of the two petitions; (2) the Union had made material misrepresentations concerning union dues, wages, and benefits under the National Freight Agreement and the circumstances surrounding the termination of various employees; (3) the Union threatened employees with loss of employment if they failed to sign union authorization cards and did not vote for the Union; and (4) union agents harassed employees possessing antiunion sentiments until those employees agreed to vote for the Union. After investigation, the Regional Director issued a Report on Objections on September 22, 1978, in 248 NLRB No. 45 HOWARD JOHNSON DISTRIBUTION CENTER which he recommended that Respondent's objections be overruled. Thereafter, Respondent filed exceptions to the Regional Director's report alleging that the Regional Director's investigation of Objections 2, 3, and 4 was insufficient as the Board agent failed to interview certain witnesses who allegedly would have supported Respondent's objections. On June 19, 1979, the Board, having considered the Regional Director's report, Respondent's exceptions thereto, and the entire record, adopted the findings, conclusions, and recommendations of the Regional Director and certified the Union as the exclusive bargaining agent of the two units. Three members of the Board, Chairman Fanning and Members Jenkins and Truesdale, noted with respect to Objection 2 that, while the Regional Director found that the alleged misrepresentations did not constitute objectionable conduct under the Board's Decision in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), the then prevailing law, the Union's statements, even assessed under the Board's Decision in General Knit of California, Inc., 239 NLRB No. 101 (1978), would be insufficient to warrant setting aside the election. 2 With respect to Objections 3 and 4, the Board found that, in its exceptions to the Regional Director's report, Respondent failed to set forth what evidence it would have offered in support of its objections had it been provided with a sufficient opportunity to do so during the Regional Director's investigation. In the absence of specific statements setting forth Respondent's disagreements with the Regional Director's findings of fact, the Board adopted the Regional Director's recommendation to overrule Objections 3 and 4. It appears that by denying the allegations in paragraphs 9 and 10 of the complaint concerning the election of the Union as the exclusive representative of the units involved herein, and its certification as such thereafter, Respondent is attempting to relitigate issues that were fully litigated and adjudicated in the underlying representation proceedings. 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.³ Therefore, we find that Respondent's denials of paragraphs 9 and 10 fail to raise issues cognizable in this proceeding and, accordingly, the allegations in those paragraphs are deemed to be true. Respondent has also raised issues with respect to matters concerning the instant unfair labor practice charge. First, Respondent denied, as alleged in paragraph 1 of the complaint, that it received a copy of the unfair labor practice charge originally filed on August 3, 1979. Contrary to Respondent's assertion, the General Counsel has submitted a photocopy of the return receipt request card signed by an agent of Respondent on August 6, 1979. Accordingly, we find Respondent's denial insufficient to place the matter in dispute and deem the allegation in paragraph 1 to be true.⁴ In its answer, Respondent denied paragraph 5 of the complaint, which alleges that the Union is a labor organization within the meaning of Section 2(5) of the Act. In its response to the Notice To Show Cause, Respondent argues that neither in the Board's Decision certifying the Union in the two units nor in the Stipulation for Certification Upon Consent Election does there appear evidence, or a stipulation that such evidence exists, supporting the General Counsel's allegation. Accordingly, Respondent contends that a hearing is necessary to resolve the matter. Contrary to Respondent, we find it was incumbent upon Respondent to raise this issue during the pendency of the representation proceeding. Inasmuch as Respondent is not entitled to relitigate matters which were or could have been litigated in the representation case,⁵ we shall not now address this issue. Accordingly, we find the allegation in paragraph 5 of the complaint to be true. In response to paragraph 11 of the complaint, Respondent contends that the Union's letter of July 2, 1979, did not constitute a valid request for bargaining. Consequently, Respondent argues that, contrary to the allegation in paragraph 12 of the complaint, Respondent's letter to the Union, dated July 11, 1979, could not constitute an unlawful rejection of that request. We find no merit in Respondent's contentions. We have carefully examined both letters and find that the Union submitted a valid request for bargaining and Respondent, continuing to contest the validity of the underlying certifications, unlawfully denied the request. Accordingly, we find the allegations in paragraphs 11 and 12 to be true. Despite Respondent's assertions to the contrary, we find, in agreement with the General Counsel that Respondent's denials of the allegations in paragraphs 1, 5, 11, and 12 are, in essence, another at- 2 Member Penello, who dissented in General Knit, adhered to his position stated therein and in Shopping Kart and, in accordance with the recommendation of the Regional Director, also found no merit in this objection. 3 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). 4 At first the General Counsel inadvertently submitted the return receipt card addressed to and signed by the Union. Upon notification, General Counsel corrected the error and filed the appropriate document. 5 See fn. 3, infra. DECISIONS OF NATIONAL LABOR RELATIONS BOARD tempt by Respondent to contest the validity of the certifications involved herein, a matter that was conclusively resolved in the representation proceedings. Thus, we find that all issues raised by Respondent in this proceeding were or could have been litigated in the prior representation cases, and 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.⁶ 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 is, and has been at all times material herein, a Maryland corporation maintaining an office and place of business in Arlington, Texas, where it is engaged in the operation of a distribution center. Respondent, during the preceding 12 months, which period is representative of all times material herein, has sold and shipped food products valued in excess of $50,000 directly to customers located outside the State of Texas. 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 Dallas General Drivers, Warehousemen and Helpers Local 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- 6 In addition to the contentions noted above, Respondent alleges that the General Counsel failed to properly serve his Motion for Summary Judgment upon Respondent by neglecting to include therein documents referred to in pars. 3 and 6 of said motion. Par. 3 refers to the service of the charge and, as previously discussed, we have found that the General Counsel has established that proper service was made. The documents referred to in par. 6 are the Union's letter of July 2, 1979, and Respondent's response thereto dated July 11, 1979. Assuming arguendo that the General Counsel neglected to affix these documents to the motion mailed to Respondent, we would nevertheless find that their absence would not be cause for denying the motion, as it is clear from Respondent's response to the Notice To Show Cause that it has possession of these documents. Therefore, we find that the alleged omission would not constitute prejudicial error. 7 In view of our decision to grant the General Counsel's motion, we find it unnecessary to pass on its request to strike certain portions of Respondent's answer. men & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceedings 1. The units The following employees of Respondent constitute two units appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: (A) All drivers and warehousemen employed at the Howard Johnson Distribution Center, 3420 Avenue F East, Arlington, Texas; but excluding office clerical employees, guards, watchmen and supervisors as defined in the Act. (B) All office clerical employees employed at the Howard Johnson Distribution Center, 3420 Avenue F East, Arlington, Texas; but excluding drivers, warehousemen, guards, watchmen and supervisors as defined in the Act. 2. The certification On May 24, 1978, and August 7, 1978, a majority of the employees of Respondent in each of the two said units, in secret-ballot elections conducted under the supervision of the Regional Director for Region 16, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representative of the employees in said units on June 19, 1979, 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 July 2, 1979, 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 units. Commencing on or about July 11, 1979, and continuing at all times thereafter to date, 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 units. Accordingly, we find that Respondent has, since July 11, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate units, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- HOWARD JOHNSON DISTRIBUTION CENTER 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 Respondent set forth in section 111, 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 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 appropriate units 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 recognized bargaining representative in the appropriate units. 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. Howard Johnson Company, d/b/a Howard Johnson Distribution Center, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Dallas General Drivers, Warehousemen and Helpers Local 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. (A) All drivers and warehousemen employed at the Howard Johnson Distribution Center, 3420 Avenue F East, Arlington, Texas; but excluding office clerical employees, guards, watchmen and supervisors as defined in the Act, and (B) all office clerical employees employed at the Howard Johnson Distribution Center, 3420 Avenue F East, Arlington, Texas; but excluding drivers, warehousemen, guards, watchmen and supervisors as defined in the Act, constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 19, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate units for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 11, 1979, 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 units, 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 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 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 Relations Board hereby orders that the Respondent, Howard Johnson Company, d/b/a Howard Johnson Distribution Center, Arlington, Texas, 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 Dallas General Drivers, Warehousemen and Helpers Local 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate units: (A) All drivers and warehousemen employed at the Howard Johnson Distribution Center, 3420 Avenue F East, Arlington, Texas; but excluding office clerical employees, guards, watchmen and supervisors as defined in the Act. (B) All office clerical employees employed at the Howard Johnson Distribution Center DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3420 Avenue F East, Arlington, Texas; but excluding drivers, warehousemen, guards, watchmen 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: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate units 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 agreement. (b) Post at its facility at 3420 Avenue F East, Arlington, Texas, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 16, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX 8 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 of Appeals Enforcing an Order of the National Labor Relations Board." 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 cerning rates of pay, wages, hours, and other term and conditions of employment with Dallas Drivers, Warehousemen and Helpers Local 74% filiated with International Brotherhood of Team sters, Chauffeurs, Warehousemen and Helpers America, as the exclusive representative of the CID ployees in the bargaining units described below WE WILL NOT in any like or related maine 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 represen tative of all employees in the bargaining units 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 it signed agreement. The bargaining unit is: (A) All drivers and warehousemen employed at the Howard Johnson Distribution Center, 3420 Avenue F East, Arlington, Texas; but excluding office clerical employees, guards, watchmen and supervisors as defined in the Act. (B) All office clerical employees employed at the Howard Johnson Distribution Center, 3420 Avenue F East, Arlington Texas; but excluding drivers, warehousemen, guards, watchmen and supervisors as defined in the Act. HOWARD JOHNSON COMPANY, D/B/A HOWARD JOHNSON DISTRIBUTION CENTER