D. W. Newcomers Sons

D. W. NEWCOMERS SONS 351 D. W. Newcomers Sons and Roanoke Services, Inc. and Local 3022, Embalmers, Funeral Directors and Assistants, AFL-CIO Case 17-CA-4375 October 31, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a charge duly filed on July 22, 1970, and served on Respondent, D. W. Newcomers Sons and Roanoke Services, Inc., on the same date, by Local 3022, Embalmers, Funeral Directors and Assistants, AFL-CIO, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint on July 31, 1970, against Respondent, alleging that it 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, complaint, and notice of hearing before a Trial Examiner were served on the Respondent and Charging Party. With respect to the unfair labor practices, the complaint alleges that on or about April 28, 1970, following a Board election and an investigation of objections, the Union was certified by the Regional Director in representation Case 17-RC-6255 as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate; i and that, commencing on or about May 18, 1970, 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 August 5, 1970, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent declines to recognize and bargain with the Union because it believes that the National Labor Relations Board's decision to include certain part- time employees in the bargaining unit was erroneous. Respondent contends that the Union certification, based on the results of the election, is invalid. On August 10, 1970, counsel for the General Counsel filed directly with the Board a motion for summary judgment, alleging that there were and are no factual issues warranting a hearing in this proceeding since all issues and contentions were duly considered and passed on by the Regional Director and the Board in Case 17-RC-6255, and that therefore the Board should grant his motion for summary judgment. Subsequently, on August 14, 1970, the Board issued an order transferring the proceeding to the Board, and on the same date the Board issued 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 powers in connection with this case to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on Motion for Summary Judgment In its response Respondent contends that the Regional Director's Decision and Direction of Elec- tion of January 15, 1970, was erroneous in that it included temporary, part-time college students in the collective-bargaining unit. The Respondent further contends that the National Labor Relations Board erroneously denied Respondent's request for review of this decision on February 3, 1970. For these reasons, the Respondent alleges that the certification of the Union issued by the Regional Director on April 28, 1970, is invalid; that the charge filed by the Union on July 22, 1970, was without merit; and that the subsequent complaint issued on July 31, 1970, is likewise lacking in factual support or legal justifica- tion. These contentions are without merit for the follow- ing reasons: On November 18, 1969, the Union filed a petition in Case 17-RC-6255, seeking an election in a unit of the Respondent's employees. A hearing was conducted on December 18, 1969, on the issues raised by the Union's petition. The Respondent appeared and offered evidence on the issues. Thereafter on January 15, 1970, the Regional Director for Region 17 issued a Decision and Direction of Election. On January 28, 1970, Respondent filed its request for review of the Regional Director's Decision and Direction of Election. By telegraphic communication of February 3, 1970, the Board denied the Respon- dent's request for review on the basis that it raised no substantial issues warranting review. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances, not to permit litigation in an unfair labor practice case, of issues which were or ' Official notice is taken of the record in the representation proceeding , 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, Case 17-RC-6255, as the term "record " is defined in Section 10268 and 269 F Supp 573 (D.C Va., 1967), Follett Corp , et a!, 164 NLRB 378, 102.69(f) of the Board's Rules and Regulations, Series 8, as amended See enfd 397 F.2d 91 (C A 7, 1968), Sec 9(d) of the NLRA LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA 4, 186 NLRB No. 55 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could have been litigated in a prior representation proceeding.2 Inasmuch as the Respondent has had in the representation case the opportunity to litigate the issues raised in its response to notice to show cause and as the Respondent does not offer to adduce at a hearing any newly discovered or previously unavaila- ble 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 find that the Respon- dent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, therefore, grant the motion for summary judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a partnership owning and operating several funeral homes in the Kansas City, Missouri, area. In the course and conduct of its business operations, the Respondent annually has a gross volume of business in excess of $500,000 and annually receives products valued in excess of $50,000 which are shipped to it directly from points outside the State of Missouri. 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 Local 3022, Embalmers, Funeral Directors and Assistants, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit Kansas City, Missouri, excluding office-clerical em- ployees, guards, and supervisors who have the authority to hire and fire. 2. The certification On February 27, 1970, a majority of the employees of the Respondent in said unit, in a secret-ballot election, conducted under the supervision of the Regional Director for Region 17, selected the Union as their representative for the purposes of collective bargaining with the Respondent. On March 4, 1970, the Respondent filed objections to conduct affecting the results of election, which objections were subse- quently overruled in their entirety, and the Union was certified as the exclusive representative for purposes of collective bargaining for employees in the appro- priate unit on April 28, 1970. B. The Request To Bargain and the Respondent's Refusal Commencing on or about May 4, 1970, and at all times thereafter, the Union has requested the 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 May 18, 1970, and continuing at all times thereafter to date, the Respondent admittedly 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 unit. We find that the Union was duly certified as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above, and that the Union at all times since April 28, 1970, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. We further find that the Respondent has, since May 18, 1970, refused to bargain collectively with the Union as the exclusive bargaining representative of its employ- ees in the appropriate unit, and that by such refusal, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. The following employees of the Respondent consti- tute a unit appropriate for collective bargaining within the meaning of the Act: All employees of the Company employed at three locations, namely, 1331 Brush Creek and 3235 Gillham Plaza, Kansas City, Missouri (Stine & McClure Funeral Home), and 832 Armour, North IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to 2 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c). D. W. NEWCOMERS SONS labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged 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 represent- ative of all employees in the appropriate unit and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropriate unit 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 recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. D. W. Newcomers Sons and Roanoke Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 3022, Embalmers, Funeral Directors and Assistants, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Company employed at three locations, namely, 1331 Brush Creek and 3235 Gillham Plaza, Kansas City, Missouri (Stine & McClure Funeral Home), and 832 Armour, North Kansas City, Missouri, excluding office-clerical em- ployees, guards, and supervisors who have the authority to hire and fire constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 28, 1970, 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 purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 18, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive 3 In the event that the Board's 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 be changed to read, 353 bargaining representative of all the employees of Respondent in the appropriate unit, 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 to them in Section 7 of the Act, and thereby 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 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 Relations Board hereby orders that Respondent, D. W. Newcomers Sons and Roanoke Services, Inc., 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 Local 3022, Embalmers, Funeral Directors and Assistants, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees of the Company employed at three locations, namely, 1331 Brush Creek and 3235 Gillham Plaza, Kansas City, Missouri (Stine & McClure Funeral Home), and 832 Armour, North Kansas City, Missouri, excluding office clerical employees, guards and supervisors who have the authority to hire and fire. (b) In any like or related manner interfering with, restraining, or coercing employees in 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 Kansas City and North Kansas City, Missouri, funeral homes, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representa- "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive, 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 17, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representative, or in any like or related manner interfere with employee efforts at self-organization or bargain- ing. WE WILL bargain collectively with the Union as exclusive collective-bargaining representative of the employees in the appropriate unit, and, if an understanding is reached, we will sign a contract with the Union. 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 with Local 3022, Embalmers, Funeral Directors and Assistants, AFL-CIO, as the exclusive collective- bargaining representative of all our following employees: All employees of the Company employed at three locations, namely, 1331 Brush Creek and 3235 Gillham Plaza, Kansas City, Mis- souri (Stine & McClure Funeral Home), and 832 Armour, North Kansas City, Missouri, excluding office-clerical employees, guards, and supervisors who have the authority to hire and fire. D. W. NEWCOMERS SONS AND ROANOKE SERVICES, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.