Central Merchandise Co.

CENTRAL MERCHANDISE CO. Central Merchandise Company, Inc. and Teamsters, General Drivers, Warehousemen & Helpers, Local 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 23-CA-7551 September 26, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE Upon a charge filed on June 12, 1979, by Team- sters, General Drivers, Warehousemen & Helpers, Local 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Central Merchandise Company, Inc., herein called Respondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 23, issued a complaint on June 18, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(aX5) and (1) and Section 2(6) and (7) of the Na- tional 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 com- plaint alleges in substance that on May 23, 1979, the Union was duly certified' as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;2 and that, commencing on or about May 29, 1979, 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. The complaint also alleges that Respondent has, since June 8, 1979, refused to furnish the Union with infor- mation necessary for, and relevant to, the Union's performance of its function as bargaining representa- tive. On July 5, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. I The certification was issued following a Board election in Case 23-RC 4714. 2 Official notice is taken of the record in the representation proceeding. Case 23-RC 4714, 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 Electrrystems, 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. On July 23, 1979. counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 30, 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 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 It its answer to the complaint and response to the Notice To Show Cause, Respondent admits that it has declined to recognize and bargain with the Union and that it has refused to furnish the Union with cer- tain requested information. However, Respondent justifies its refusal to bargain by asserting that the Board incorrectly decided the underlying representa- tion case.' In addition, Respondent asserts that its re- fusal to provide the requested information is based on its position that the underlying certification is errone- ous and that there are triable issues of fact as to the relevance of the requested information. Our review of the record, herein, including the rec- ord in Case 23-RC-4714, discloses that, pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on December 15, 1978, and that the tally of ballots furnished the parties after the election showed 80 votes for, and 64 against, the Union, with I challenged ballot. Respondent objected to conduct affecting the results of the election on the grounds that, during the preelection period, eligible voters were threatened with physical violence if they did not vote for the Union and that material misrep- resentations of law and fact were made in the preelec- tion period. On February 27, 1979, the Regional Di- rector issued his report on objections to the election in which he recommended that the objections be over- ruled in their entirety. Thereafter, on March 2, 1979, Respondent filed a motion for reconsideration and hearing alleging that newly discovered evidence re- vealed that the union organizer was a convicted felon, that his employment violated the Landrum-Griffin Act, 29 U.S.C. §504 (1959), and that such illegal em- ployment upset the laboratory conditions necessary for a fair election. On March 15, 1979. the Regional Director denied Respondent's motion for reconsider- ' Central Merchandising Company, Inc., Case 23 RC 4714 issued May 23. 1979, not reported in bound volumes of Board Decisions. 245 NLRB No. 35 375 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ation and hearing on grounds that with due diligence Respondent could have discovered the organizer's background prior to the election. In addition, the Re- gional Director found that no evidence was submitted that any court or Federal agency had held that the organizer's current employment by the Union consti- tuted any violation of 29 U.S.C. §504. The Regional Director concluded, therefore, that this was not newly discovered evidence and that silence on the part of the Union concerning the organizer's background could not have destroyed the laboratory conditions necessary for a fair election. Respondent filed excep- tions to the report on objections on March 13, 1979, and a letter requesting special permission to appeal the Regional Director's denial of its motion for recon- sideration on March 19, 1979. In its exceptions, Re- spondent reiterated the contentions raised in its mo- tion for reconsideration of the Regional Director's report and recommendations, dated March 2, 1979, and further contended that the alleged misrepresenta- tions and threats had a substantial impact on the elec- tion and that the Regional Director's failure to direct a hearing on Respondent's objections denied it due process of law. On May 23, 1979, the Board adopted the Regional Director's findings and recommenda- tions, denied Respondent's request for special permis- sion to appeal the Regional Director's denial of its motion for reconsideration, and certified the Union. Subsequently, on or about May 29, 1979, the Union requested that Respondent meet for purposes of col- lective bargaining. Further, the Union, on or about May 29, 1979, re- quested, by letter, that Respondent furnish the fol- lowing information: I. A roster with all the names of employees in the bargaining unit, their seniority dates, work classification and wage rate. 2. Number of paid holidays that company gives the employees in the bargaining unit. 3. Vacation schedule for employees in the bar- gaining unit. 4. If insurance is furnished by employer, a copy of the insurance booklet describing em- ployee benefits. 5. Is insurance paid wholly by the company? If not, what portion is the employee required to pay? 6. Does the company furnish a pension plan for employees in the bargaining unit? If so, a copy of said plan and how it is funded. 7. Any other benefits or bonuses furnished by the company to employees. On June 8, 1979, Respondent refused to bargain with the Union and to provide the requested informa- tion on the grounds that the Union was improperly certified and, further, with respect to the requested information, asserted that a hearing was necessary to resolve issues of relevancy. Counsel for the General Counsel asserts that all issues concerning the Union's certification were liti- gated and that the Union was properly certified. He also asserts that the information requested pertains to bargaining unit employees, that such information is presumptively relevant for purposes of collective bar- gaining, and that the burden, therefore, is upon Re- spondent to submit evidence to rebut this presump- tion of relevance. Thus, in the instant proceeding, Respondent has failed to plead any material fact suf- ficient to rebut the existing presumption of relevancy, and, thus, the General Counsel contends, no material issue of fact exists warranting a hearing. Finally, Respondent contends that a hearing on its objections should be ordered. However, it is well set- tled that the parties do not have an absolute right to a hearing. Only when the objecting party presents a pri- mafacie showing of "substantial and material" issues of fact concerning matters which would warrant the election's being set aside does the right to an eviden- tiary hearing exist. 4 Absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements.5 In this case, the Board fully considered Respondent's objections and excep- tions and did not order a hearing, but instead adopted the Regional Director's recommendations that the objections be overruled. 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. With respect to the re- quested information, Respondent has failed to plead any material fact to rebut the existing presumption of relevancy, and thus no material issue of fact exists warranting a hearing. We therefore find that the Re- spondent has not raised any issue which is properly 4N.L.R.B. v. Modine Manufacturing Co., 500 F.2d 914 (8th Cir. 1974). 5 Amalgamated Clothing Workers of America Winfield Manufacturing Company, Inc.] v. N.L.R.B., 424 F.2d 818, 828 (D.C.Cir. 1970). 6See 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). 176 CENTRAL MERCHANDISE CO. litigable in this unfair labor proceeding. Accordingly. we grant the Motion for Summary Judgment.' On the basis of the entire record, the Board makes the following: FINDINGS OF FACI- I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with an of- fice and place of business located in Houston, Texas, where it is engaged in the business of warehousing and distribution. During the past 12-month period, Respondent purchased and received goods and mate- rials valued in excess of $50,000, which goods and materials were shipped to Respondent's facilities in Texas directly from points outside the State of Texas. 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. II. THE LABOR ORGANIZATION INVOLVED Teamsters, General Drivers, Warehousemen & Helpers, Local 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- 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 Proceeding 1. 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 regular full-time and regular part-time ware- house employees, truckdrivers, and plant clerical employees employed by Respondent at its ware- house located at 411 Brisbane, Houston, Texas, excluding all office clerical employees, guards, watchmen, and supervisors as defined in the Act. In its answer to the complaint, Respondent, in addition to denying the commission of any unfair labor practices, denies that it is doing business as "T.G. & Y. Warehouse" as stated in the caption of the complaint; denies the fact of certification; and denies the representative status of the Union. As- suning that the complaint was incorrectly captioned, this error raises no substantive issue, and Respondent's denial of the Union's majority status was litigated in the underlying representation proceeding which, as we noted above, resulted in the Union's certification. 2. The certification On December 15. 1978, 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 23, 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 emplo\ees in said unit on May 23, 1979, 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 Resrpondlent' Rctixal Commencing on or about May 29. 1979. 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 and to provide requested in- formation. Commencing on or about June 8. 1979. and continuing at all times thereafter to date. Re- spondent has refused, and continues to refuse. to rec- ognize and bargain with the Union as the exclusive representative for collective bargaining of all employ- ees in said unit and to provide the Union with re- quested information. Accordingly. we find that Respondent has, since June 8, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit and to provide the Union with requested intor- mation, and that, by such actions, Respondent 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 PRACII(FS UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic. and com- merce 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 mean- ing 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 ap- 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propriate unit and, if an understanding is reached, embody such understanding in a signed agreement. We shall also order that Respondent, upon request, provide the Union with information which is neces- sary for, and relevant to, the performance of the Union's function as bargaining representative. 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 Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/h/a Lamar Hotel. 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction 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: CONCI.USIONS OF LAW I. Central Merchandise Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, General Drivers, Warehousemen & Helpers, Local 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and regular part-time ware- house employees, truckdrivers, and plant clerical em- ployees employed by Respondent at its warehouse lo- cated at 411 Brisbane, Houston, Texas, excluding all office clerical employees, guards, watchmen, and su- pervisors 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 May 23, 1979, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 8, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, and to provide the Union with requested relevant information, 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 and to pro- vide requested information, Respondent has inter- fered with, restrained, and coerced, and is interfering with, restraining, and coercing. employees in the exer- cise 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 I) 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 Rela- tions Board hereby orders that the Respondent, Cen- tral Merchandise Company, Inc., Houston, Texas, 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 con- ditions of employment with Teamsters, General Driv- ers, Warehousemen & Helpers, Local 968, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. as the exclusive bargaining representative of its employees in the following appropriate unit: All regular full-time and regular part-time ware- house employees, truckdrivers, and plant clerical employees employed by Respondent at its ware- house located at 411 Brisbane, Houston, Texas, excluding all office clerical employees, guards, watchmen, and supervisors as defined in the Act. (b) Refusing to provide the Union with requested information which is necessary for, and relevant to, the performance of the Union's function as bargain- ing representative. (c) 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 unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Provide the Union with requested information which is necessary for, and relevant to, the perform- ance of the Union's function as bargaining represent- ative. 178 CENTRAL. MERCHANDISE CO. (c) Post at its 411 Brisbane, Houston, Texas. loca- tion copies of the attached notice marked "Appen- dix."8 Copies of said notice, on forms provided by the Regional Director for Region 23, 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. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Pursuant to a Judgment of the United States Court of Appeals 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 Team- sters, General Drivers, Warehousemen & Help- ers, Local 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, as the exclu- sive representative of the employees in the bar- gaining unit described below. We wIi.i. NOT refuse to provide the Union with requested information which is necessary for, and relevant to, the performance of the Union's function as bargaining representative. WE WiL.. 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 wlt.l., upon request, bargain with the above-named Union. as the exclusive representa- tive of all employees in the bargaining unit de- scribed 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 regular full-time and regular part-time warehouse employees, truckdrivers, and plant clerical employees employed by Respondent at its warehouse located at 411 Brisbane, Houston, Texas, excluding all office clerical employees, guards. watchmen, and supervisors as defined in the Act. WE WILL provide the Union with requested information which is necessary for, and relevant to, the performance of the Union's functions as bargaining representative. CENTRAL MERCHANDISE COMPANY, IN('. 379