F. W. Boelter Co., Inc.

F. W. BOELTER CO. INC. F. W. Boelter Co., Inc. and Teamsters "General" Lo- cal Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 30-CA-4943 March 29. 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon a charge filed on October 24, 1978, by Team- sters "General" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on F. W. Boelter Co., Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a com- plaint and notice of hearing on November 9, 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 (I) 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 September 21, 1978, following a Board election in Case 30-RC- 3277, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about October 19, 1978, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, al- though the Union has requested and is requesting it to do so. Thereafter, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and raising an "affir- mative defense." On January 10, 1979, the counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subse- quently, on January 18, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's I Official notice is taken of the record in the representation proceeding, Case 30-RC-3277, 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 Electrosysemrs, 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): Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. Motion for Summary Judgment should not be granted. Respondent thereafter filed a document enti- tled "Opposition to Motion for Summary Judgment" as its 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 and response to the Notice To Show Cause, Respondent admits the re- quest and refusal to bargain. It asserts, however, as an "affirmative defense" that the Union's certification was improper. In this regard, Respondent points out that in the underlying representation proceeding, the Hearing Officer recommended that the challenge to the determinative ballot be sustained based on his crediting the testimony of certain witnesses on the grounds, inter alia, that such witnesses were "disinter- ested." Respondent asserts that it has "newly discov- ered evidence" to indicate that the witnesses in fact were not disinterested, and that therefore it is entitled to a hearing before an administrative law judge with the procedural safeguards of an unfair labor practices hearing in order to attack the credibility of such wit- nesses. Review of the record herein, including the record in Case 30-RC-3277, reveals that an election conducted pursuant to a Stipulation for Certification Upon Con- sent Election on March 31, 1978, resulted in a vote of seven to six in favor of the Union with one challenged ballot which was sufficient to affect the results of the election. Thereafter, the Regional Director investi- gated the challenge and, on April 25, 1978, issued a notice of hearing on challenged ballot. Pursuant thereto, a hearing was conducted before a Hearing Officer designated by the Regional Director. On June 7, 1978, the Hearing Officer issued his report on chal- lenged ballot with findings and recommendations in which he concluded that Chester Dobbertin, whose ballot was challenged, was a supervisor within the meaning of the Act and recommended that the chal- lenge to his ballot be sustained and a certification of representative be issued. Thereafter, Respondent filed timely exceptions to the Hearing Officer's report. On September 21. 1978, the Board, having considered the Hearing Officer's report, the Employer's exceptions thereto, and the entire record, adopted the findings, conclusions, and recommendations of the Hearing Officer and certified the Union as the exclusive bar- gaining agent of the employees in the unit stipulated to be appropriate. It thus appears that Respondent is 241 NLRB No. 75 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempting in this proceeding to relitigate issues fully litigated and finally determined in the representation proceeding. It is well settled that in the absence of newly dis- covered. 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.2 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 require 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.4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Wisconsin corporation, is engaged in the wholesale sale of paper products, glassware. and restaurant equipment at its Milwaukee, Wiscon- sin, location. During the past calendar year, a repre- sentative period, Respondent sold and shipped goods valued in excess of $50,000 from its Wisconsin loca- tion directly to customers located outside the State of Wisconsin. 2See 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). Respondent, in its opposition to Motion for Summary Judgment, states that it does not request a review of the facts relating to the supervisory status of Chester Dobbertin. It asserts, however, that witnesses Otto and Sailer. who were credited by the Hearing Officer, in part based on his finding that they were "disinterested" witnesses. in fact were not disinterested. In this regard, it asserts that Otto is a personal friend of the Union's business agent, that Otto's father is a member of the Union, and that Sailer is a personal friend of Otto. We note. however, that Respondent's factual assertions are merely based on information and belief and that it has failed to submit any evidence in support of its assertions. Furthermore, even assuming, arguendo, the truth of its assertions, Respondent has not demonstrated that such facts were previ- ously unavailable with the exercise of due diligence. Finally, it is clear that the Hearing Officer relied on various factors, other than the "interests" of the witnesses, in reaching his credibility resolutions. Accordingly, we find that Respondent has not raised any material issue warranting a hearing and that it has not alleged special circumstances sufficient to warrant reexamination of our decision in the underlying representation proceeding. 'On February 7. 1979, the General Counsel filed a motion to strike re- sponse and renewed motion for motion for Summary Judgment. Subse- quently, Respondent filed an answer thereto. The General Counsel's motion, insofar as it seeks to strike Respondent's opposition to Motion for Summary Judgment, is hereby denied. 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" Local Union No. 200, affili- ated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and 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 I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Scction 9(b) of the Act: All regular full-time and part-time warehouse- men and truckdrivers employed by the Employer at its Milwaukee, Wisconsin, location; but ex- cluding office clerical employees, salesmen, guards and supervisors as defined in the Act, and all other employees. 2. The certification On March 31, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 30, 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 September 21, 1978, and the Union con- tinues 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 October 17, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about October 19, 1978, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize, and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. 568 F. W. BOELTER CO., INC. Accordingly, we find that Respondent has, since October 19, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that, by such refusal, Respondent 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 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- 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 UInion as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Companv d/b/a Lamar Hotel. 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964). cert. denied 379 U.S. 817 (1964): Burnett Construction Conipan,, 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 I. F. W. Boelter Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters "General" Local Union No. 200, af- filiated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and part-time warehouse- men and truckdrivers employed by the Employer at its Milwaukee, Wisconsin, location, but excluding of- fice clerical employees, salesmen, guards, and super- visors as defined in the Act, and all other employees constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(h) of the Act. 4. Since September 21, 1978, the above-named la- bor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit tfor the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 19. 1978. 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, Respondent has en- gaged 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) 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, F. W. Boelter Co., Inc., Milwaukee, Wisconsin, 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 con- ditions of employment with Teamsters "General" Lo- cal Union No. 200. affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All regular full-time and part-time warehouse- men and truckdrivers employed by the Employer at its Milwaukee. Wisconsin, location: but ex- cluding office clerical employees, salesmen, guards and supervisors as defined in the Act, and all other emplo ees. (b) In any like or related manner interfering with. 569 D[ECISIONS OF NATIONAL LABOR RELATIONS BOARD 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) Post at its offices and facilities at 1136 West National Avenue. Milwaukee, Wisconsin, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 30, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' 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 Enfiorcing an Order of the National l.ahbor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We WILL NO. refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Team- sters "General" Local Union No. 200, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL 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 WILL, 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 agreement. The bargaining unit is: All regular full-time and part-time ware- housemen and truckdrivers employed by the Employer at its Milwaukee, Wisconsin loca- tion; but excluding office clerical employees, salesmen, guards and supervisors as defined in the Act, and all other employees. F. W. BOELTER Co., INC. 570