Peter Kuntz Co.

NEW CASTLE LUMBER & SUPPLY CO. 685 New Castle Lumber and Supply Co., Division of Peter Kuntz Co. and Chauffeurs, Teamsters, Warehouse- men and Helpers Local Union No. 135 , International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Case 25-CA-5007 October ' 12, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on June 14, 1972, by Chauf- feurs, Teamsters, Warehousemen and Helpers Local Union No. 135, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on New Castle Lumber and Supply Co., Division of Peter Kuntz Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25, issued a com- plaint on June 30, 1972, 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 May 12, 1972, following a Board election in Case 25-RC-4908, 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 May 12, 1972, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Un- ion has requested and is requesting it to do so. On July 10, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 17, 1972, counsel for the General Coun- sel filed directly with the Board a Motion for Summa- ry Judgment. Subsequently, on July 25, 1972, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the Gen- 'Official notice is taken of the record in the representation proceeding, Case 25-RC-4908, 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 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. eral Counsel's Motion for Summary Judgment should not be granted. On July 26, 1972, Respondent's excep- tions to General Counsel's motion to strike portions of Respondent's answer and Motion for Summary Judgment was filed with the Board which is treated as a response to Notice to Show Cause. Thereafter, the General Counsel filed an opposition to Respondent's response. 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 and response, Respondent con- tends, in effect, that the Acting Regional Director erred in his determination that employee Robert Hud- son was not a supervisor and in his decision to open and count two challenged ballots. The General Coun- sel contends that the Respondent is attempting to relitigate issues which were or could have been raised and litigated in the representation proceeding, and which may not be relitigated here. We agree with the General Counsel. The record in Case 25-RC-4908 reflects that on March 17, 1972, the Acting Regional Director issued a Decision and Direction of Election, finding, inter, alia, that Hudson was an employee and not a supervi- sor. Thereafter, the Respondent filed a Request for Review alleging that the Acting Regional Director erred in this finding. On April 11, 1972, the Board denied the Request for Review as it raised no substan- tial issues warranting review. A secret ballot election was then conducted on April 14, 1972, in which eight ballots were cast, four for and two were against the Union and two were challenged. The two challenged ballots were sufficient in number to affect the results of the election and were cast by two employees who were the subject of unfair labor practice charges in Case 25-CA-4892 alleging their discriminatory dis- charge. On April 27, 1972, after an investigation, the Act- ing Regional Director issued his Report on Chal- lenged Ballots, Supplemental Decision and Order in which he ordered that the two challenged ballots be opened and counted following a Board precedent.' In so doing, he noted that the two employees voluntarily waived the right to have their ballots kept secret and requested that they be opened and counted; and he also ordered the ballots, if cast against the Union, be segregated pending outcome of Case 25--C-A-4892. 2 International Ladies' Garment Workers' Union, 137 NLRB 1681. 199 NLRB No. 99 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No Request for Review was filed by the Respondent. The revised tally showed that, of the eight ballots cast, six were for and two were against the Union. It is significant that the disposition of the challenges proved totally irrelevant inasmuch as the Union re- ceived a majority of the valid ballots cast whether the challenges be sustained or overruled. On May 12, 1972, the Union was certified as the exclusive bargain- ing representative of the employees in the appropriate unit. It thus appears that the issue of Hudson's alleged supervisory status was considered and determined in the representation proceeding and that the correct- ness of opening and counting the two challenged bal- lots could have been, but was not, raised in the representation case. It is well settled that in the absence of newly discovered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding alleg- ing a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigat- ed in a prior representation proceeding.3 All issues raised by the Respondent in this pro- ceeding 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 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 The Respondent is, and has been at all times 3 See Pittsburgh Plate Glass Co v. N L.R B, 313 U.S. 146, 162 (1941), NLRB Rules and Regulations , Secs. 102.67(f) and 102 69(c). In its answer to the complaint , Respondent denies that the Union is a labor organization This issue was raised and determined in the representa- tion proceeding in Case 25-RC-4908, and, accordingly, it is not subject for litigation in the instant unfair labor practice proceeding. The Respondent's answer also denies refusing to bargain . Accompanying the complaint and the General Counsel's Motion for Summary Judgment, as Attachments A and B, are two letters purporting to be written by the Respondent which admit refusal to bargain pending disposition of Case 25-CA-4892 The Respondent's response neither alludes to nor seeks to controvert the two letters. Thus, the truth of the factual allegations of the complaint is either expressly admitted by the Respondent or stands admitted by virtue of 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. Accordingly, we agree with the General Counsel that the Respondent has raised no issues litigable in the unfair labor practice proceedings before us, and that all of the allegations of the complaint are deemed to be admitted as true material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Ohio. It has owned and operated a facility at New Castle, Indiana, at which it has been and is engaged in the retail and wholesale distribution of lumber and relat- ed products. During the past year, a representative period, the Respondent, in the course and conduct of its business operations, purchased, transferred, and delivered to its facility goods and materials valued in excess of $50,000 which were transported to said facility directly from other States and sold and distributed products, the gross value of which exceed $500,000. We find, on the basis of the foregoing, that Re- spondent 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 juris- diction herein. II THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Secion 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act: All yard men, warehousemen and truckdrivers at the Employer's New Castle, Indiana, estab- lishment, but excluding all office clerical employ- ees, professional employees, guards and supervisors as defined in the Act. 2. The certification On April 14, 1972, 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 25, 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 May 12, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. NEW CASTLE LUMBER & SUPPLY CO. B. The Request To Bargain and Respondent's Refusal Commencing on or about May 12, 1972, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about May 12, 1972, 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 May 12, 1972, 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 en- gaged 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 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 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 appro- priate unit, and, if an understanding is reached, em- body such understanding in a signed agreement. In order to insure that the employees in the ap- propriate 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 687 1. New Castle Lumber and Supply Co., Division of Peter Kuntz Co., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All yard men, warehousemen and truckdrivers at the Employer's New Castle, Indiana, estab- lishment, but excluding all office clerical employees, professional employees, guards and supervisors, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 12, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 12, 1972, 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 Respon- dent 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 meaning 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 Respondent, New Cas- tle Lumber and Supply Co., Division of Peter Kuntz 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 condi- tions of employment with Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclu- 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sive bargaining representative of its employees in the following appropriate unit: All yard men, warehousemen and truckdrivers at the Employer's New Castle, Indiana, estab- lishment, but excluding all office clerical employ- ees, professional employees, 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its New Castle, Indiana, facility copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 25, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 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 Chauf- feurs, Teamsters, Warehousemen and Helpers Local Union No. 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 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, em- body such understanding in a signed agreement. The bargaining unit is: All yard men, warehousemen and truckdrivers at the Employer's New Castle, Indiana, estab- lishment, but excluding office clerical employ- ees, professional employees, guards and supervisors as defined in the Act. Dated By NEW CASTLE LUMBER AND SUP- PLY Co., DIVISION OF PETER KUNTZ CO (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317- 633-8921.