Davis Sales Co.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis Sales Co. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 452 . Case 27-CA-3332 February 18, 1972 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND KENNEDY 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 Upon a charge filed on August 23, 1971, by Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union No. 452, herein called the Union, and duly served on Davis Sales Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 27, issued a complaint on Septe nW 14, 1971, which was amended on September 17, 1971, against Respondent, alleging that Respond- ent 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 com- plaint alleges in substance that on June 17, 1971, fol- lowing a Board election in Case 27-RC-3871 the Un- ion was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about August 6, 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, al- though the Union has requested and is requesting it to do so. On September 21, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 12, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 19, 1971, the Board issued an order transferring the pro- ceeding 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. ' Official notice is taken of the record in the representation proceeding, Case 27-RC-3871, as the term "record" is defined in Secs 102 68 and 102.69(1) 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 F.2d 91 (C.A 7, 1968), Sec. 9(d) of the NLRB 195 NLRB No. 85 In its answer to the amended complaint the Re- spondent denies the appropriateness of the unit and the Union's status as the exclusive bargaining representa- tive of the employees in the unit. The Respondent also questions the validity of the certification of the Union on grounds that the Regional Director refused to con- duct a hearing on the Respondent's objections to the election in the representation proceeding, thereby de- nying it an opportunity to litigate fully the alleged sub- stantial issues raised. In his Motion for Summary Judg- ment, counsel for the General Counsel contends that the issues raised by the Respondent were fully litigated during the representation proceeding, or could have been. As the response to the Notice To Show Cause only reiterates Respondent's request for a hearing, we agree with counsel for the General Counsel. On March 18, 1971, upon a petition filed by the Union, the Regional Director issued a Decision and Direction of Election in Case 27-RC-3771 directing a representation election in the appropriate unit as found. The Respondent did not seek Board review of this decision. On April 14, 1971, the Union received a majority of the ballots in the election held as directed. The Re- spondent then filed Objections to Conduct Affecting the Results of the Election, moving that the election be set aside because of campaigning unknown to the Re- spondent by Kathleen Mikelson, an alleged supervisor; the presence of an alleged Union agent in the polling area; the conducting of meetings with employees by the alleged agent within 24 hours of polling; and the prom- ising by alleged Union agents of decreased dues for employees voting for the Union and threatening of in- creased dues for those voting against the Union. On June 17, 1971, after investigating the Respondent's ob- jections and supporting affidavits, the Regional Direc- tor issued a Supplemental Decision on Objections and Certification of Representative in which he overruled the Respondent's objections, finding in accordance with his earlier ruling in the Decision and Direction of Election that Kathleen Mikelson did not have super- visory status, and further finding no other evidence of a union agency relationship in Kathleen Mikelson or the other alleged agents. Accordingly, he certified the Union as the exclusive bargaining representative. DAVIS SALES CO. The Respondent then filed a request for review with the Board, alleging as grounds for review the failure of the Regional Director to order a hearing to resolve substantial factual issues raised by the objections and the erroneous certification of the Union which prejudi- cially affected the rights of the Respondent. On July 27, 1971, the Board denied the Respondent's request for review as raising no substantial issues warranting re- view. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation 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 made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is prop- erly 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 The Respondent, a corporation organized under and existing by virtue of the laws of the State of Colorado, is engaged in the sale and distribution of wholesale phonograph records and maintains its principal office and place of business at 4555 Kingston, Denver, Colorado. In the course and conduct of its business operations, the Respondent annually purchases and re- ceives goods and materials valued in excess of $50,000 from outside the State of Colorado. ' See Pittsburgh Plate Glass Co v NL RB, 313 U S 146 , 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) ' In its answer the Respondent also denies the Union's request to bargain and its own refusal Attached to the Motion for Summary Judgment are Appendix G, a letter of July 30, 1971, from the Union's representative to Mr William Davis , president of the Respondent, requesting to meet for the purpose of negotiating a contract , and Appendix H, a letter of August 6, 1971, on behalf of Mr William Davis to the Union's representative in response to his letter of July 20, 1971, declining to bargain with the Union Since the Respondent does not seek to deny those letters in its response, 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 for Summary Judgment Carl Simpson Buick, Inc, 161 NLRB 1389 (1966) 465 We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 452 is a labor organization within the mean- ing 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 pur- poses within the meaning of Section 9(b) of the Act: All warehouse employees employed by Davis Sales Co., 4555 Kingston, Denver, Colorado, but excluding all office clerical employees, salesmen, driver-salesmen, guards, professional employees, and supervisors as defined in the Act. 2. The certification On April 14, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 27 designated the Union as their representa- tive 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 June 17, 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 July 30, 1971, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about August 6, 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 August 6, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive repre- sentative 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 appropri- ate 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 begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized 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. Davis Sales Co. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 452, is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees employed by Respond- ent at its 4555 Kingston, Denver, Colorado, plant, but excluding office clerical employees, salesmen, driver- salesmen, and all guards, professional employees, and supervisors 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 June 17, 1971, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 6, 1971, 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 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 in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Davis Sales Co., 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 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 452, as the exclusive bar- gaining representative of its employees in the following appropriate unit: All warehouse employees employed by Respond- ent at its 4555 Kingston, Denver, Colorado, plant, but excluding office clerical employees, salesmen, driver-salesmen, and all guards, professional em- ployees, 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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. DAVIS SALES CO 467 (b) Post at its 4555 Kingston, Denver, Colorado, location copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by the Regional Director for Region 27, 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 no- tices 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 27, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' In the event 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 " the employees 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 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 employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All warehouse employees employed by Davis Sales Co. at its 4555 Kingston, Denver, Colorado, plant, but excluding office clerical employees, salesmen, driver-salesmen, and all guards, professional employees, and super- visors as defined in the Act. DAVIS SALES CO (Employer) 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, Local Union No. 452, as the exclusive representative of 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, Room 260, New Custom House, 721 19th Street, Denver, Colorado 80202, Telephone 303-837- 3551.