Peaches Records & Tapes, Inc.

PEACHES RECORDS & TAPES, INC. 517 Peaches Records & Tapes, Inc. and Retail Clerks Union, Local 204, affiliated with United Food and Commercial Workers International Union, AFL-CIO, CLC. Case 11-CA-8729 March 17, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on November 5, 1979, by Retail Clerks Union, Local 204, affiliated with United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, herein called the Union, and duly served on Peaches Records & Tapes, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region I11, issued a com- plaint on November 21, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 ad- ministrative 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 September 4, 1979, following a Board election in Case l1-RC- 4692 the Union was duly certified as the exclusive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about September 13, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. Subsequently, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On December 14, 1979, counsel for the General Counsel filed directly with the Board a "Motion To Strike Portions of Respondent's Answer to Complaint and Motion for Summary Judgment." Subsequently, on December 26, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- ' Official notice is taken of the record in the representation proceed- ing, Case I l-RC-4692, as the term "record" is defined in Secs. 102.68 and 102 6 9(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 Ca, 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 248 NLRB No. 72 eral 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 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 admits the certification of the Union and the Union's request to bargain. However, Respondent denies that the Union was properly certified and that it refused to bargain in good faith with the Union as the exclusive bargaining representative of its employees. In its response to the Notice To Show Cause, Respondent attacks the Union's certi- fication on the basis of two of its objections to the election in the underlying representation proceed- ing.2 Respondent contends that the Union was not properly certified because it made a material mis- representation regarding Respondent's financial condition and because, contrary to N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973), the Union told the employees that, if they signed au- thorization cards prior to the election, they would not have to pay an initiation fee. Respondent fur- ther contends that the Regional Director erred by not holding a hearing on its objections to the elec- tion. Review of the record herein, including the record in Case I -RC-4692, reveals that pursuant to a Stipulation for Certification Upon Consent Election, approved on May 2, 1979, an election was conducted on May 11, 1979, which resulted in a vote of 13 votes for and 10 votes against the Union, with no challenged ballots. Thereafter, on May 18, 1979, Respondent filed timely objections to conduct affecting the results of the election. The Regional Director issued his Report on Objections on June 13, 1979, wherein he recommended that Respondent's objections be overruled in their en- tirety and that the Union be certified as the exclu- sive representative of the employees. Respondent filed timely exceptions to the Re- gional Director's report, reiterating its objections concerning the Union's alleged misrepresentation regarding Respondent's financial condition and the Union's alleged offer to waive initiation fees. On 2 Respondent does not contend that the Union's certification was im- proper on the basis of its other objections which alleged: (I) that the Union misrepresented the rights of employees if the Union won the elec- tion; (2) that the Union threatened employees; and (3) that the Union mis- represented the number of employees who had signed authorization cards. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 4, 1979, the Board issued its Decision and Certification of Representative in which it adopted the Regional Director's findings and rec- ommendations and certified the Union as the col- lective-bargaining representative of Respondent's employees. 3 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. 4 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. Respondent also contends in this proceeding that, in the underlying representation case, the Re- gional Director should have conducted a hearing on its objections. Prior to issuing its Decision and Certification of Representative, the Board consid- ered the Regional Director's report and Respon- dent's exception alleging that the Regional Direc- tor erred by not conducting a hearing with respect to its objections. In adopting the Regional Direc- tor's findings and recommendations, the Board found that the objections did not raise any material issues which warranted a hearing.5 Accordingly, we find no issues of fact warranting a hearing and therefore we grant the General Counsel's Motion for Summary Judgment.6 On the basis of the entire record, the Board makes the following: I 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 Not reported in volumes of Board Decisions. As indicated in the De- cision and Certification of Representative, Member Penello adopted the Regional Director's overruling of Employer's Objection 2 involving al- leged misrepresentations, but he did so for the reasons set forth in Shop- ping Kart Food Market, Inc., 228 NLRB 1311 (1977), the principles of which he still adheres to. See his dissenting opinion in General Knit of California, Inc., 239 NLRB No. 101 (1978). Evansville Auto Parts, Inc., 217 NLRB 660 (1975); Raub Supply (Com- pany, 215 NLRB 830 (1974); Heavenly Valley Ski Area, a California Corpo- ration, and Heavenly Valley, a Partnership, 215 NLRB 734 (1974), enfd. 552 F.2d 269 (9th Cir. 1977). 6 In view of the result herein, we find it unnecessary to rule o the General Counsel's motion to strike Respondent's denial of pars. 9, 11, 14, 16, 17, and 18 of the complaint. Evansville Auto Parts, Inc., supra. FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a California corporation with a retail facility in Greensboro, North Carolina, is en- gaged in the retail sales of records and tapes. Re- spondent's annual gross volume of sales is in excess of $500,000. During the past 12 months, a period representative of all times material herein, Respon- dent received goods valued in excess of $50,000 di- rectly from outside the State of North Carolina. 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. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local 204, affiliated with United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, 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 full-time and regular part-time employees employed at Respondent's facility located at 4217 High Point Road, Greensboro, North Carolina; excluding the Director, Second in Operation, Product Manager, Night Manager, and all other supervisors and guards as defined in the Act. 2. The certification On May 11, 1979, 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 11 designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certi- fied as the collective-bargaining representative of the employees in said unit on September 4, 1979, and the Union continues to be such exclusive rep- resentative within the meaning of Section 9(a) of the Act. PEACHES RECORDS & TAPES, INC. 519 B. The Request To Bargain and Respondent's Refusal Commencing on or about September 11, 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 unit. Com- mencing on or about September 13, 1979, 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 September 13, 1979, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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- 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. Peaches Records & Tapes, Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 204, affiliated with United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed at Respondent's facility located at 4217 High Point Road, Greensboro, North Carolina; ex- cluding the Director, Second in Operation, Prod- uct Manager, Night Manager, and all other super- visors and guards 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 September 4, 1979, 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 September 13, 1979, 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, 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, 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, Peaches Records & Tapes, Inc., Greensboro, North Carolina, its officers, agents, successors, and as- signs, 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 Retail Clerks 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, Local 204, affiliated with United Food and Commercial Workers International Union, AFL- CIO, CLC, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All full-time and regular part-time employees employed at Respondent's facility located at 4217 High Point Road, Greensboro, North Carolina; excluding the Director, Second in Operation, Product Manager, Night Manager, and all other supervisors and guards 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 facility located at Greensboro, North Carolina, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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 11, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. I 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 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 Retail Clerks Union, Local 204, affiliated with United Food and Commercial Workers International Union, AFL-CIO, CLC, 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 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 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 agreement. The bargaining unit is: All full-time and regular part-time employ- ees employed at our facility located at 4217 High Point Road, Greensboro, North Caro- lina; excluding the Director, Second in Op- eration, Product Manager, Night Manager, and all other supervisors and guards as de- fined in the Act. PEACHES RECORDS & TAPES, INC.