King & Stanley

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eller Outdoor Advertising Co. of Memphis, d/b/a King & Stanley and Painters Local Union No. 49, Brotherhood of Painters and Allied Trades, AFL-CIO. Case 26-CA-4428 November 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on July 26, 1972, by Painters Local Union No. 49, Brotherhood of Painters and Allied Trades, AFL-CIO, herein called the Union, and duly served on Eller Outdoor Advertising Co. of Memphis, d/b/a King & Stanley, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint on August 3, 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 an Administrative Law Judge' were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 11, 1972, following a Board election in Case 26-RC-4153 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commenc- ing on or about July 24, 1972, 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. Subsequently, the Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 1, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, alleging, inter alia, that the Respondent's answer to the complaint raises no factual issues warranting an evidentiary hearing and, therefore, requests the Board to grant the Motion for Summary Judgment. Subsequently, on September 14, 1972, 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. Respon- dent thereafter filed a reply opposing General Counsel's Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 reply opposing the General Counsel's Motion for Summary Judgment the Respondent raises substantially the same matters that it raised in the underlying representation case, and the affirmative defenses in its answer to the complaint. The thrust of the Respondent's contention is that the Union's certification was improperly issued because it was denied due process and an evidentiary hearing on substantial and material issues of fact raised by its objections to the election. The Respondent presses the closeness of the election, which was decided by one vote, and argues that it should have been afforded the opportunity to cross-examine any witnesses; question any of the evidence upon which the Board relied; and to fully develop evidence in rebuttal thereof. Upon the entire record before us, including the record in Case 26-RC-4153 we find no merit in the Respondent's contentions and argu- ments. Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director, an election was conducted on March 14, 1972. The tally of ballots served on the parties at the conclusion of the election reflected that of approximately 37 eligible voters, 37 cast ballots, of which 19 were for, and 18 against the Union. The Respondent filed timely objections to the election. Thereafter, the Acting Regional Director conducted an investigation of the objections, and, on April 27, 1972, issued his Report on Objections in which he recommended that the objections be overruled in their entirety and that the Union be certified. On May 4, 1972, the Respondent filed with the Board timely exceptions to the Report on Objections. On July 11, 1972, the Board issued its Decision and Certification of Representative3 in which it, after having considered the Acting Regional Director's Report and the exceptions of the Respondent thereto, concluded that the Respondent's exceptions raised no material or substantial issues of fact or law which would require , The title of "Trial Examiner" was changed to "Administrative Law LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4, 1968); Judge" effective August 19, 1972. Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 2 Official notice is taken of the record in the representation proceeding, F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd . 397 F.2d Case 26-RC-4153, as the term "record" is defined in Secs. 102.68 and 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 102.69(f) of the Board's Rules and Regulations, Series 8, as amended . See 3 Not reported in the bound volumes of the Board's decisions. 200 NLRB No. 36 KING & STANLEY a hearing or warrant reversal of the Acting Regional Director's findings, conclusions, and recommenda- tions. Accordingly, the Union was certified. Thus, the Respondent's answer to the complaint and the affirmative defenses therein, as well as its reply opposing the General Counsel's Motion for Summary Judgment which argue that its objections and exceptions raised substantial and material issues warranting a hearing, merely reiterate the issues previously raised and considered in the representa- tion case. 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 could have been litigated in a prior representation proceeding.4 It is clear that the Respondent had, and exercised, the opportunity in the representation proceeding in Case 26-RC-4153 to raise the issues in its answer to the complaint and its reply opposing the General Counsel's Motion for Summary Judgment. The Respondent alleges no newly discovered or previously unavailable evidence, and it alludes to no special circumstances which would require the Board to reexamine the decision made in the representation proceeding. As all material issues have been previ- ously decided by the Board, we find that there are no matters requiring an evidentiary hearing before an Administrative Law Judge. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, a corporation with a place of business at Memphis, Tennessee, where it is engaged in the sale of outdoor advertising space. During the past 12 months, Respondent, in the course and conduct of its business operations at Memphis, Tennessee, purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Tennessee. 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 231 Painters Local Union No. 49, Brotherhood of Painters and Allied Trades, AFL-CIO, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All employees employed at the Respondent's Memphis, Tennessee, location, excluding all salesmen, artists, real estate and leasing person- nel, photographers, and paint and poster charting, office clerical employees, guards, and supervisors as defined in the Act. 2. The certification On March 14, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted, pursuant to a Stipulation for Certification Upon Consent Election, under the supervision of the Regional Director for Region 26, 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 July 11, 1972, 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 18, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about July 24, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 24, 1972, and at all times thereafter, refused to bargain collectively with the Union as the 4 See Pittsburgh Plate Glass Co. v N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of the employees in the appropriate unit, and that, by such refusal , Respon- dent 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 opera- tions 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 com- merce. 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 certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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. Eller Outdoor Advertising Co. of Memphis, d/b/a King & Stanley, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Painters Local Union No. 49, Brotherhood of Painters and Allied Trades, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed at the Respondent's Memphis, Tennessee, location, excluding all sales- men, artists , real estate and leasing personnel, photographers, and paint and poster charting, office clerical employees, 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 July 11, 1972, 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 July 24, 1972, 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, 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 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, Eller Outdoor Advertising Co. of Memphis, d/b/a King & Stanley, 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 Painters Local Union, No. 49, Brotherhood of Painters and Allied Trades, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed at the Respondent's Memphis, Tennessee, location, excluding all salesmen, artists, real estate and leasing person- nel, photographers and paint and poster charting, office clerical 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: KING & STANLEY (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 Memphis, Tennessee, location copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 26, 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 26, 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 Paint- ers Local Union No. 49, Brotherhood of Painters and Allied Trades, AFL-CIO, as the exclusive 233 representative of 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 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 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 understanding in a signed agree- ment. The bargaining unit is: All employees employed at the Respondent's Memphis, Tennessee, location, excluding all salesmen, artists, real estate and leasing personnel, photographers, and paint and poster charting, office clerical employees, guards and supervisors as defined in the Act. ELLER OUTDOOR ADVERTISING CO. OF MEMPHIS, D/B/A KING & STANLEY (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 compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-31;61.