Henderson Trumbull Supply Corp.

HENDERSON TRUMBULL SUPPLY CORP. 245 Henderson Trumbull Supply Corporation and Team- sters Local 191 affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 2-CA-12796 August 6, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on November 15, 1972, by Teamsters Local 191 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Henderson Trumbull Supply Cor- poration, herein called the Respondent, The General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 2, issued a complaint on December 14, 1972, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, 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 com- plaint alleges in substance that on October 13, 1972, following a Board election in Case 2-RC-15878 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 November 2, 1972, and at all times there- after, 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. On January 4, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and raising a "Special Defense." On January 22, 1973, Respondent filed a Motion for Revocation of Certification of Representative and a Motion To Consolidate. On January 29, 1973, the Board denied the motions. On February 22, 1973, counsel for the General 'Official notice is taken of the record in the representation proceeding, Case 2-RC-15878, 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 172d 683 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969), 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 Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 12, 1973, 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 thereaf- ter filed a response to Notice To Show Cause. 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 to the complaint, its Motion for Revo- cation of Certification of Respresentative, and its Pe- tition for Denial of Motion for Summary Judgment, Respondent attacks the validity of the Union's certifi- cation in the underlying representation case and urges that the certification be held invalid or revoked, or that otherwise Respondent be granted a hearing on the issues it raises. Respondent would have the Board reconsider its disposition of Respondent's objections to the election, which relate to certain alleged union misrepresentations, and, in support of its contentions additionally alleged that, about a month after the election, it discovered that some of the eligible voters had, during the period before the election, been en- gaged in theft of the Respondent's property and other dishonest practices, and that during the half year after the election 10 of the 15 eligible voters left the Respondent's employment. For reasons set forth be- low, we find no merit in any of Respondent's conten- tions. A review of the record in Case 2-RC-15878 indi- cates that prusuant to a Stipulation for Certification Upon Consent Election, approved by the Acting Re- gional Director for Region 2 on May 26, 1972, an election was conducted on June 14, 1972, in the ap- propriate unit. The tally of ballots indicates that 13 of approximately 15 eligible voters cast ballots, of which 7 were for, and 6 against, the Union. The Respondent thereafter filed timely objections, alleging that the Union had misrepresented Respondent's financial condition. The Acting Regional Director thereupon caused an investigation to be made and on August 1, 1972, issued his Report on Objections and Recom- mendations, in which he concluded that the state- ments made by the Union's representatives did not go beyond the normal bounds of permissible electioneer- ing, and that the employees could reasonably evaluate the election propaganda for what it was, and recom- mended that the Union be certified. Thereafter, on 205 NLRB No. 8 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 12, 1972, the Respondent filed exceptions. On October 31, 1972, the Board issued its Decision and Certification of Representative, in which it rejected the Respondent's contentions and adopted the Acting Regional Director's findings, conclusions, and recom- mendations. As noted above, Respondent's answer to the com- plaint herein, its Motion To Consolidate and Motion for Revocation of Certification of Representative, both filed in January 1973, and its Petition for Denial of Motion for Summary Judgment all allege facts which attack the validity of the certification in the underlying representation case. The allegations, which are unsupported by affidavits, are most clearly articulated in the Motion for Revocation of Certifica- tion, which, in relevant part, recites: On or about July 19, 1972, it was discovered that a course of conduct involving the theft of money and materials from the [Respondent] and various fraudulent and dishonest practices result- ing in substantial monetary losses to the [Re- spondent] was being engaged in by several of the employees who voted in said election. On or about July 19, 1972, certain of such em- ployees admitted the theft of money and materi- als from the [Respondent] and that they had engaged in such fraudulent and dishonest prac- tices. These employees also implicated several other employees who voted in said election in such theft and fraudulent and dishonest practic- es. Such thefts and fraudulent and dishonest prac- tices had been occurring for approximately two months prior to July 19, 1972. The employment of 10 out of 15 employees who were eligible to vote in said election has terminated since the time of this election, leaving only five employees who were eligible to vote in such election still remaining in the employ of the [Respondent]. In its Petition for Denial of Motion for Summary Judgment, dated April 6, 1973, Respondent addition- ally says "the circumstances developing from the fraudulent and dishonest practices described in Respondent's [answer to the complaint] . . . lead to the discharge of the employees involved and the ter- mination of 10 out of 15 of the employees who were eligible to vote in said election. . . . We find no merit in Respondent's contentions for several reasons. First, the allegations are belated in that Respondent does not explain its failure to raise the issue of the alleged dishonest employee practices in its exceptions to the Acting Regional Director's report dated August 12, 1972, almost a month after the alleged discovery. Second, the allegations are un- supported by affidavits or other proof of their truth. Third, and for the reasons set forth above, the Board has already denied Respondent's Motion for Revoca- tion of Certification of Representative, in which the same allegations were made. And finally the results of an election must stand on the basis of the work force as it existed at the time utilized for establishing voter eligibility. Thus, even assuming subsequent termina- tions were for cause-whether due to dishonesty or other misconduct-the Board has held that postelec- tion turnover is an insufficient ground to set aside an election.2 We have carefully examined the relationship be- tween the Respondent's various contentions dis- cussed previously and to other factors cited by Respondent, particularly the closeness of the election and the preelection union conduct. We find that the contentions considered in combination do not amount to the kind of special circumstances which would require the Board to reexamine the decision made in the representation proceeding, and that Re- spondent has raised no issue which warrants hearing in this unfair labor practice proceeding. It is well es- tablished that parties do not have an absolute right to a hearing on objections to the election. It is only when the moving party presents a prima facie showing of "substantial and material" issues that he is entitled to an evidentiary hearing.' It is clear that, absent arbi- trary action, this qualified right to a hearing satisfies all statutory and constitutional requirements.4 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circum- stances a respondent in a proceeding alleging a viola- tion of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.' As we reject Respondent's contentions, we shall grant General Counsel's Motion for Summary Judgment.' On the basis of the entire record, the Board makes the following: 2 Orleans Storage Company, Inc, 123 NLRB 1757, and cases cited therein 3 Mycalex Division of Spaulding Fibre Company, Inc., 200 NLRB No 93, and cases cited therein 4 Amalgamated Clothing Workers of A merica v N L R B, 424 F.2d 818, 828 (C A D C, 1970), N L R B v Golden Age Beverage Company, 415 F 2d 26, 32 (C A 5, 1969) s See Pittsburgh Plate Glass Company 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) 6 Our disposition makes it unnecessary to consider the General Counsel's motion to strike portions of Respondent 's answer HENDERSON TRUMBULL SUPPLY CORP. 247 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT in said unit on October 31, 1972, and the Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. Respondent, a Connecticut corporation, maintains an office and place of business at 2300 Reservoir Ave- nue, Trumbull, Connecticut, where it is, and has been at all times material herein, continuously engaged in the sale at retail of building materials and home sup- plies. During the past year Respondent, in the course and conduct of its operations, derived gross revenues in excess of $500,000 and purchased products valued in excess of $50,000 directly from suppliers situated outside of the State of Connecticut. We find, on the basis of the foregoing, that Respon- dent 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 Teamsters Local 191 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III 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 regular full-time and part-time employees of the Employer at its 2300 Reservoir Avenue, Trumbull, Connecticut, location, including driv- ers, yardmen, fork-lift operators, millmen, store salesmen and stock clerks, but excluding all other employees, executives, guards, watchmen, and supervisors as defined in the Act. 2. The certification On June 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 2, 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 B. The Request To Bargain and Respondent's Refusal Commencing on or about November 2, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about November 2, 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 collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since November 2, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es 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 mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Henderson Trumbull Supply Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 191 affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and part-time employees of the Employer at its 2300 Reservoir Avenue, Trumbull, Connecticut, location, including drivers, yardmen, fork-lift operators, millmen, store salesmen and stock clerks, but excluding all other employees, executives, 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 October 31, 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 November 2, 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, 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 mean- ing 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 Rela- tions Board hereby orders that Respondent, Hender- son Trumbull Supply Corporation, Trumbull, Con- necticut, 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 Teamsters Local 191 affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All regular full-time and part-time employees of the Employer at its 2300 Reservoir Avenue, Trumbull, Connecticut, location, including driv- ers, yardmen, fork-lift operators, millmen, store salesmen and stock clerks, but excluding all other employees, executives, 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 under- standing is reached, embody such understanding is a signed agreement. (b) Post at its Trumbull, Connecticut, location co- pies of the attached notice marked "Appendix." I Co- pies of said notice, on forms provided by the Regional Director for Region 2, 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 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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 " HENDERSON TRUMBULL SUPPLY CORP. 249 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Team- sters Local 191 affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America as the exclu- sive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 understanding in a signed agreement. The bargaining unit is: All regular full-time and part-time employ- ees of the Employer at its 2300 Reservoir Ave- nue, Trumbull, Connecticut, location, including drivers, yardmen, fork-lift operators, millmen, store salesmen and stock clerks, but excluding all other employees, executives, guards, watchmen, and supervisors as defined in the Act. HENDERSON TRUMBULL SUPPLY CORPORATION (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, 36th Floor, Federal Building, 26 Fed- eral Plaza, New York, New York 10007, Telephone 212-264-0300.