Eckerd Drugs of Georgia, Inc.

ECKERD DRUGS OF GEORGIA, INC. 151 Eckerd Drugs of Georgia, Inc. and Truck Drivers and Helpers Local Union No. 728. Case 10- CA-15069 March 5, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on October 1, 1979, by Truck Drivers and Helpers Local Union No. 728, herein called the Union, and duly served on Eckerd Drugs of Georgia, Inc., herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint and notice of hearing on October 15, 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 August 17, 1979, following a Board election in Case 10-RC- 11797 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 6, 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. On October 25, 1979, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On November 14, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 23, 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 Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Official notice is taken of the record in the representation proceed- ing, Case 10-RC-11797, as the term "record" is defined in Sees. 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); Folletrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 248 NLRB No. 4 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 support of the Motion for Summary Judg- ment, the General Counsel asserts that Respondent has admitted its refusal to recognize and bargain with the Union which has been certified by the Board, and has only raised issues which it raised or could have raised in the representation proceeding. In opposition to the Motion for Summary Judg- ment, Respondent contends that the unit of over- the-road drivers found appropriate in the represen- tation proceeding is not appropriate within the meaning of the Act. Respondent requests the Board to review the unit determination, and argues that the Board's rule against relitigation of repre- sentation issues in an unfair labor practice case is not inflexible. A review of the record herein, including the record of the representation proceeding, shows that, following a hearing, the Regional Director made the unit determination that Respondent con- tends is inappropriate and considered Respondent's unit position. Thereafter, Respondent requested Board review of the Regional Director's decision. Upon consideration, the Board decided that the re- quest raised no substantial issues warranting review and denied the request on August 6, 1979. 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.2 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, and we do not see any special circumstances in the case which would require the Board to reexamine the decision made in the representation proceeding. We there- fore find that Respondent has not raised any issue which is properly litigable in this unfair labor prac- tice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2 See Pittsburgh Plate Gloss 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) 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Georgia corporation with an office and place of business located at College Park, Georgia, where it is engaged in the distribu- tion of drugs, cosmetics, and sundries for its ap- proximately 150 retail drug store facilities in Geor- gia, Alabama, Tennessee, and nothern Florida. During the past calendar year, which is a represen- tative period, Respondent received gross revenues in excess of $500,000. During the same period Re- spondent received goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. 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 LABOR ORGANIZATION INVOLVED The Union, Truck Drivers and Helpers Local Union No. 728, is a labor organization within the meaning of Section 2(5) of the Act. Ill. 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 over-the-road drivers, employed by the Respondent at its College Park, Georgia, fa- cility, but excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On August 9, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 10, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining represen- tative of the employees in said unit on August 17, 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 August 30, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 6, 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 6, 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 (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- 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). --- ECKERD DRUGS OF GEORGIA, INC. 153 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Eckerd Drugs of Georgia, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Truck Drivers and Helpers Local Union No. 728 is a labor organization within the meaning of Section 2(5) of the Act. 3. All over-the-road drivers, employed by Re- spondent at its College Park, Georgia, facility, but excluding all other employees, office clerical em- ployees, professional employees, guards and super- visors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 17, 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 6, 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)(l) 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, Eckerd Drugs of Georgia, Inc., College Park, Georgia, its officers agents, successors, and assigns, shall: i. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Truck Drivers and Helpers Local Union No. 728 as the exclusive bar- gaining representative of its employees in the fol- lowing appropriate unit: All over-the-road drivers, employed by the Respondent at its College Park, Georgia, fa- cility, but excluding all other employees, office clerical employees, professional 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 facility at College Park, Georgia, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 10, 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, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. :' In the event that this Order is enforced h 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 Enfiorcing 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 Truck Drivers and Helpers Local Union No. 728 as the exclusive bargaining representa- tive of the employees in the bargaining unit described below. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rightQ 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 over-the-road drivers, employed by the Respondent at its College Park, Georgia, fa- cility, but excluding all other employees, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. ECKERD DRUGS OF GEORGIA, INC.