Schwartz Brothers, Inc.

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schwartz Brothers, Inc. and District Records, Inc. and Warehouse Employees Local Union No. 730, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 5-CA-5239 November 11, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge and amended charge filed on July 20, 1971, and August 4, 1971, respectively, by Warehouse Employees Local Union No. 730, affiliat- ed with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Schwartz Brothers, Inc., and District Records, Inc., herein collectively called the Respondent, the Acting Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a com- plaint on August 5, 1971, 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 (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 5, 1971, following a Board election in Case 5-RC-7420, 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 April 16, 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 August 11, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 20, 1971, counsel for the Acting General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 26, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Acting General Counsel's Motion for Summary Judgment should not be granted. Respon- i Official notice is taken of the record in the representation proceeding, Case 5-RC-7420 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 Electrosystems, Inc., 166 NLRB 938, enfd 388 F.2d 683 (C A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151, Intertype Co v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 dent thereafter filed a response to Notice To Show Cause, and on September 9, 1971, a Motion to Amend Answer which is hereby granted. In its amendment the Respondent added, as an affirmative defense, the invalidity of the certification as a result of the alleged objectionable conduct by the Board agent and the subsequent refusal of the Regional Director to conduct a hearing on the issues of fact raised thereby. 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 In its answer as amended and in its Response to the Notice to Show Cause, the Respondent contends that the certification issued to the Union in Case 5-RC-7420 is invalid because of the Respondent's objections to the Board agent's making challenges to voters on behalf of the Union which allegedly destroyed the impartiality and neutrality of the Board in the election. We find no merit in this contention. A review of the record in the representation Case 5-RC-7420 shows that, pursuant to the Regional Director's Decision and Direction of Election,2 an election by secret ballot was held on December 15, 1970, in which the Union received a majority of the votes cast and the challenged ballots were insufficient to affect the election results. The Respondent filed timely objections to the election alleging, in sub- stance, that the conduct of the Board agent in making challenges on behalf of the Union led the employees to believe that the Board favored the Union, thereby destroying the neutrality and objectivity of the Board in the election. After investigation, and considering the affidavits of the Respondent's observer and of the Board agent, the Regional Director issued on February 5, 1971, his Supplemental Decision and Certification of Repre- sentative, overruling the Respondent's objections. He found that the Union did not use an observer in the election because the Respondent had terminated employee Jeato, the Union's principal supporter, who was to act as observer and that the Union apparently was unable to secure any other individuals to act as observer. While permitting Jeato to enter its premises F.2d 91 (C.A. 7, 1968); Sec 9(d) of the NLRA. 2 On December 11, 1970, the Board denied the Respondent's request for review of the Decision and Direction of Election because it raised no substantial issues warranting review, except with respect to the unit placement of three individuals which was to be resolved through the challenge procedure. 194 NLRB No. 13 SCHWARTZ BROTHERS, INC. to cast a challenged ballot, the Respondent would not let him remain on the premises to act as the Union's observer. The Regional Director decided that the challenges made on behalf of the Union in no way affected the neutrality of the Board, that the fairness of the election had not been compromised, and that the voters had not been given the impression that the Board favored the Union over the Respondent. Further, he considered the impact of section 11338 of the Board Field Manual which provides that "the Board agent will not make challenges on behalf of the parties, whether or not such parties have observers present." But he concluded that rigid adherence to the guidelines of the manual in all situations could well frustrate the purpose of that section as well as of the Act. Under all the circumstances, including the fact that the Respondent adamantly refused to allow Jeato to act as the Union's observer and the Union's apparent inability to secure a replacement, the Regional Director ruled that the Board agent had acted properly because, in the absence of challenges, potentially ineligible voters could have cast ballots which could have affected the results of the entire election. The Respondent thereafter timely filed with the Board a request for review of the Regional Director's Supplemental Decision and Certification of Repre- sentative raising again the refusal to sustain its objections to the election and the refusal to follow section 11338 of the Field Manual and relying for support on the Board's decisions in Athbro Precision Engineering Corp., 166 NLRB 966 (1967), and Balfre Gear & Manufacturing Co., 115 NLRB 19 (1956). On March 1, 1971, the Board denied the request for review as raising no substantial issues warranting review. 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.3 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 unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision 3 See Pittsburgh Plate Glass Co v. N.L RB., 313 US 146, 162 (1941); Rules and Regulations of the Board, Secs. 102 67(f) and 102.69(c). 4 Crest Leather Manufacturing Corp., 167 NLRB 1085-86, and cases cited therein; Lipman Motors, Inc., 187 NLRB No. 36, Janler Plastic Mold Corp., 191 NLRB No. 24. 5 Respondent's answer denies the request and refusal to bargain. Attached to the General Counsel's Motion for Summary Judgment, as Exhs. I and 2, is a letter from the Union's business agent requesting "a 151 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. In the amended answer and response, the Respondent for the first time raises the question of its procedural right to a hearing to litigate the factual issues raised by its objections. In its denial of the Respondent's request to review the Regional Direc- tor's Supplemental Decision and Certification of Representative, the Board already has decided that Respondent's objections raise no substantial issues warranting review. Where, as here, no substantial and material issues are presented, no evidentiary hearing is required.4 Accordingly, we shall grant the Motion for Summary Judgment .5 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a single employer comprised of two corporations, Schwartz Brothers, Inc., a Dela- ware corporation, and District Records, Inc., a Maryland corporation, the wholly owned subsidiary of Schwartz Brothers, Inc. The principal offices and places of business for both corporations is Washing- ton, D.C., where they are engaged in the wholesale distribution of phonograph records. In addition, District Records, Inc., performs job trucking services for retail customers. During the past 12 months, a representative period, each corporation had gross revenues in excess of $500,000 and purchased and received at its Washington, D.C., location goods valued in excess of $10,000 from points outside the District of Columbia. 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 Warehouse Employees Local Union No. 730, affiliated with 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. negotiating conference," and a letter from the Respondent's attorney declining to bargain with the Union. In its Response to the Notice to Show Cause, the Respondent neither alludes to nor controverts the letters attached to the Motion for Summary Judgment. Thus, the truth of the factual allegations in the complaint concerning the request and refusal to bargain stands admitted by the uncontroverted factual averments in the General Counsel's motion. The May Department Stores Company, 186 NLRB No. 17, and Carl Simpson Buick, Inc., 161 NLRB 1389. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 including truckdrivers and inventory clerks department employees em- ployed by the Employer at its Washington, D.C. warehouse, but excluding office clerical employ- ees, guards, watchmen and supervisors as defined in the Act. 2. The certification On December 15, 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 5, 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 5, 1971, 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 April 8, 1971, 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 April 16, 1971, and 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 April 16, 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 the 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 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 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 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 1419, 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. Schwartz Brothers, Inc., and District Records, Inc., is a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse Employees Local Union No. 730, affiliated with 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 warehouse employees including truckdri- vers and inventory clerks department employees employed by the Employer at its Washington, D.C. warehouse, but excluding office clerical employees, guards, watchmen 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 5, 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 April 16, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive SCHWARTZ BROTHERS, INC. 153 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 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. 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 5, 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 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 "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Schwartz Brothers, Inc., and District Records, 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 Warehouse Employees Local Union No. 730, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All warehouse employees including truckdrivers and inventory clerks department employees em- ployed by the Employer at its Washington, D.C. warehouse, but excluding office clerical employ- ees, guards, watchmen 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 Washington, D.C., warehouse copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 5, 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 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 Ware- house Employees Local Union No. 730, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive representative of the employ- ees in the bargaining unit described below. 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 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 including truckdri- vers and inventory clerks department em- ployees employed by the Employer at its Washington, D.C. warehouse, but excluding office clerical employees, guards, watchmen and supervisors as defined in the Act. SCHWARTZ BROTHERS, INC. AND DISTRICT RECORDS, INC. (Employer) Dated By (Representative) (Title) 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by - Any questions concerning this notice or compliance anyone. with its provisions may be directed to the Board's This notice must remain posted for 60 consecutive Office, Federal Building, Room 1019, Charles Center, days from the date of posting and must not be altered, Baltimore, Maryland 21201, Telephone defaced, or covered by any other material. 301-962-2822.