Central Merchandise Co.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Merchandise Company and, International Brotherhood of Teamsters, Chauffeurs, '_ Ware- housemen and Helpers of America, Department Store, Package Grocery, Paper House, Liquor and Meat Drivers, Helpers 'and Warehousemen, Local No. 955. Case 17-CA-4608 July 22, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge and amended charge filed ` on; March 10, 1971, and April 8, 1971, respectively, by Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Department Store,. Package Grocery, Paper House, Liquor and Meat' ` Drivers, Helpers and Warehousemen, Local No. 955, herein called the Union, and duly served on Central Merchandise Company, , herein called the Respondent, the General Counsel of the National Labor Relations Board, by the,Regignal Director for Region 17, issued a complaint on April 15, 1971, against Respondent, alleging ,that Respondent had engaged in -arid 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 duly served on the parties to this proceeding., With respect to the unfair labor practices, the complaint alleges in substance that on February 25, 1971, following a Board election in Case 17-RC-6423 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 March 3, 1971, 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, although the Union has requested and is requesting it to do so. On April 26, 1971, and May 13, 1971, Respondent filed its answer and amended answer, respectively, to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 6, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary 1 Official notice is taken of the record in the representation proceeding, Case 17-RC-6423, as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See LTV Electrosystemr, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Peneio, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp, 164 NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 2 After receipt of the General Counsel's Motion for Summary Judgment, but prior to the Notice To Show Cause, Respondent, by a letter dated May 11, 1971, stated that its reasons for opposing the Motion for Judgment. Subsequently, on May 13,1971, 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 Notice To Show Cause.2 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 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., - - The record in Case 17-RC-6423 showed that pursuant to "a `Stipulation for Certification `Upon Consent Election, an election was conducted on September 18,,1970', in the stipulated unit. The tally of ballots showed that' there were approximately 111 eligible voters, that there were no void ballots, that 54 ballots were cast for and 47 against the Union, and that there were 7 challenged ballots which were sufficient in number to, affect the results of . the election. There were no objections filed either by the Respondent or by the Union. Thereafter, the Region- al Director conducted an investigation of the chal- lenged ballots,` after which he issued leis Regional Director's Report on Challenged -Ballots and Recom- mendations, dated November 18, 1970. The Regional Director, in his Report, recommended' that the challenges to six ballots' be overruled and that the challenge to Dennis Yearsley's ballot be sustained. He found that Yearsley had been hired on the last day of the payroll eligibility period, but did not begin working until after the close of that period. As the six overruled ballots could not affect the results of the election, the Regional Director also recommended that they not be opened and counted and that the Union be certified as the exclusive collective-bargain- ing representative in the stipulated unit. The Respondent, on November 30, 1970, filed with the Board timely exceptions to the Regional Direc- tor's Report, excepting only to his recommendations concerning the eligibility of Dennis Yearsley. Summary Judgment were given in Exhibit F, "Employer's Exceptions and Argument Supporting Exception to Regional Director's Determination on Challenged Ballots." Respondent concluded in this letter that it had no further statement to make. Accordingly, since no response to the Notice To Show Cause has been received, although due May 27, 1971, we are treating the aforementioned letter as Respondent's response to the Notice To Show Cause. On May 20, 1971 , the General Counsel filed a Motion in Opposition to that part of Respondent's letter which asserted that the Motion for Summary Judgment necessarily admitted the truth of the allegations in Respondent's answer to the complaint. 192 NLRB No. 36 CENTRAL MERCHANDISE CO. 197 On February 25, 1971, the Board issued a Decision and Certification of Representative in Case 17-RC-6423, in which it denied the Regional Direc- tor's Motion To Remand in order to investigate further the six challenges, which was opposed by both the Respondent and the Union, adopted the findings and recommendations set forth in the Regional Director's report, and certified the Union as the exclusive collective-bargaining representative of the unit stipulated in Case 17-RC-6423.3 The Union's, request to bargain was rejected by the Respondent in a letter-dated, March 3, 1971. In its answer to the complaint audits response to the: Notice To Show Cause, the Respondent contended that the Board should deny the Motion for Summary Judgment and dismiss the complaint in its entirety, because, having erroneously sustained the challenges to Dennis Yearsley's ballot, the Board invalidly certified the Union. Respondent's contentions present the same issues considered and determined by the Board in the underlying representation case, 17-RC-6423. It is well settled that in the absence of newly discovered 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.4 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding,,and the Respondent does not offer to adduce at a hearing any newly discovered or previously 1lnavailable 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary,,Judgment. , , On the basis of the entire record, the Board makes the following: _ , FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, an Oklahoma corporation and a wholly owned subsidiary of T. G. & Y. Stores Corporation, maintaining a warehouse facility at 5300 Kansas Avenue, Kansas City, Kansas, the facility 3 On March 19, 1971 , the Board issued an Order Amending and Correcting Decision, correcting certain minor errors but leaving otherwise unaffected its decision, sustaining the challenge to Dennis Yearsley's involved herein, where it is,engaged in the wholesale sale of general merchandise. The Respondent, in the course and conduct of its business, annually purchases goods and- materials valued in excess of $50,000 `directly from suppliers located outside the State of Kansas. The-Respon- dent's annual sales of merchandise exceed the gross volume of $500,000. 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 The International- Brotherhood of Teamsters, Chauffeurs, Warehousemen,andHelpersof America, Department Store, Package Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehouse-` men, Local No. 955, 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 the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All warehouse employees and truckdrivers (both local and over-the-road) ' emplo'yed at the warehouse of the Respondent at 5300 Kansas Avenue, Kansas, City, 'Kansas, excluding office clericals, guards, and supervisors as defined in the Act. 2. The certification On September 18, 1970, 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.17, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on February `25, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. ballot, and certifying the Union. 4 See Pittsburgh Plate Glass Ca 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). 198 DECISIONS OF NATIONAL-- LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's' Refusal Commencing on or;about March 2, T1971, and at all times thereafter, the Union has requested the Respon- dent, to` ibargain• collectively with it as,Ihe exclusive collective-bargaining representative of all, the employ- ees in the above-described unit. Commencing on or about March .3, 1971, nand-continuing at all times thereafter to date, the Respondent 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. - . Accordingly, we find that the Respondent has, since March 3, 1971, and at all times thereafter, refused to bargain collectively with the Union; as- the exclusive representative of the employees in the appropriate 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 (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 operations described in section I, above, have a close, intimate, and substantial relationship,- to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce andthe free flow of commerce. 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 .5 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, vie 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 5 On June 18, 1971, the Union filed with the Board a -Motion for Appropriate Remedial Relief, requesting that-in addition to the'bargain ng order the Board also order other remedial relief, `including compensatory damages. As the 'circumstances herein do not warrant a departure from the U.S. 817; Burnett Construction Company, =149• NLRB 1419,142 1, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the f oregoing,fact`s` and the entire record, makes the following: CONCLUSIONS OF LAW 1. Central Merchandise Company is ,an employer engaged in commerce within the meaning- of Section 2(6) and (7) of the Act.- , 2. 'International, . Brotherhood of, Teamsters, Chauffeurs, Warehousemen and Helpers of America, Department Store, Package ,Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehouse- men, Local No. 955, is a labor, organization within the meaning of Section 2(5),of the Act. 3, All warehouse employees , and truckdrivers (both ^ local and over-the-road) employed at the warehouse of the Respondent at 5300 Kansas Ave- nue, Kansas City, Kansas, excluding office clericals, guards, and, supervisors 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, February 25, 1971, 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 March 3,'4971, and at all times -thereafter,' to--bargain collectively with the above-named labor organization as the exclusive bargaining' representative of all the employees of Respondent in the, appropriate unit, Respondent has engaged in and, is engaging in unfair laborpractices' 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 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, established policies with respect to remedial orders in cases involving 8(aX5), violations, the motion is hereby -denied. See Ex-Cell-O Corp., 185, NLRB No. 20.`For the ' reasons set forth in the, dissent, Member Brown would grant such relief. CENTRAL MERCHANDISE CO. 199 Central Merchandise Company, 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 the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Department Store, Package Grocery, Paper House, Liquor'and Meat Drivers, Helpers and' Warehousemen, Local No. 955, as the exclusive bargaining representative of its employees in the following appropriate unit: All warehouse employees and truckdrivers (both , local and over-the-road) employed at the warehouse of the Respondent , at 5300 Kansas Avenue,- Kansas City, Kansas, excluding office clericals, guards, and supervisors as defined in the Act. (b) 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) Post at its warehouse at 5300 Kansas Avenue, Kansas City, Kansas, copies of the attacked notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representa- 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 notice's are not altered,^defaced, or covered by any other material. (c) Notify the, Regional Director for Region 17, in writing, within 20- days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that This Order is enforcedby aJudgmentof aUnited States Court, of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall ,be changed to 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 Interna- tional Brotherhood of 'Teamsters, Chauffeurs, Warehousemen and Helpers of America, Depart- ment Store, Package Grocery, Paper House, Liquor and Meat Drivers, Helpers • and. Ware- housemen, Local No. 955, as the. exclusive repre- sentative of the employees in the. bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, orcoerce 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 representative 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 under- standing in a signed agreement. The bargaining unit is: All warehouse employees and truckdrivers (both local and over-the-road) employed at the warehouse of the-Respondent at -5300 Kansas Avenue, Kansas City, -Kansas, ex= cluding office clericals, guards, and supervi- sors as defined in the Act. CENTRAL MERCHANDISE COMPANY (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.