Stone & Thomas

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stone & Thomas and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 697. Case 6-CA-6613 August 7, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on March 15, 1973, by Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union No. 697, herein called the Union, and duly served on Stone & Thomas, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 6, issued a complaint and notice of hearing on March 23, 1973, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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 re- cord reflects that on January 31, 1973, following a Board election in Case 6-RC-6218, 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 March 6, 1973, and at all times thereafter, Re- spondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has re- quested and is requesting it to do so. On April 2, 1973, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. The Respondent admits all of the factual allegations of the complaint, except those paragraphs which relate to the appropriateness of the unit and the resulting certification in the underlying representa- tion proceeding, Case 6-RC-6218. On April 27, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached, submitting, in ef- fect, that Respondent, in its answer, raises no issues 'Official notice is taken of the record in the representation proceeding, Case 6-RC-6218, 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 Electrosystemr, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 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 which were not preciously presented to and decided by the Board in the underlying representation pro- ceeding, Case 6-RC-6218, and that the Board grant the Motion for Summary Judgment and issue an ap- propriate remedial Order. Subsequently, on May 8, 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 entitled "Respondent's Brief Showing Cause Why Summary Judgment Should Not Be Granted," with exhibits at- tached. 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 As reflected above, the Respondent's answer ad- mits all of the factual allegations of the complaint, including its refusal to recognize and bargain with the Union which had been certified as the collective-bar- gaining representative of the employees described in the complaint. In its answer to the complaint, as well as in its response to Notice To Show Cause, the Re- spondent attacks the Regional Director's and the Board's several rulings at the various stages of the representation proceeding relating to the appropriate- ness and scope of the unit, and its objections to the election. By this assertion, and more specifically by its denials, in whole or in part, of the allegations of the complaint and the arguments propounded in its re- sponse to Notice To Show Cause, the Respondent is attempting to relitigate the same issues which it raised in the representation proceeding, Case 6-RC-6218. 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.2 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 made in•the representation proceeding. We therefore 2 See Pittsburgh Plate Co v NLRB , 313 U S 146, 162 ( 1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c). 205 NLRB No. 52 STONE & THOMAS 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, a West Virginia corporation with its principal offices located in Wheeling, West Virgin- ia, is engaged in the operation of retail department stores. During the past 12-month period, the Respondent's gross volume of business was in excess of $500,000 and, during this same period, the Respon- dent purchased goods and materials valued in excess of $50,000 directly from points outside the State of West Virginia for use within the State of West Virgin- ia. 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 International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 697, 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All full-time and regular part-time furniture warehousemen and central receiving department employees at the Employer's Lane A warehouse on 4th Street, Wheeling, West Virginia, including all receiving dock employees, checkers, order checkers, claim clerk, receiving record clerk, and markers, but excluding all carpet workroom em- ployees and guards, professional employees, and supervisors as defined in the Act. 2. The certification 299 On November 30, 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 6, 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 January 31, 1973, and the Union con- tinues 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 March 6, 1973, 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 March 6, 1973, 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 March 6, 1973, and at all times thereafter, re- fused 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 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 com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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- 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. Stone & Thomas is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 697, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time furniture warehousemen and central receiving department employees at the Employer's Lane A warehouse on 4th Street, Wheeling, West Virginia, including all receiving dock employees, checkers, order checkers, claim clerk, receiving record clerk, and markers, but excluding all carpet workroom employees and guards, professional employees, 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 January 31, 1973, 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 collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 6, 1973, 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 interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed 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, Stone & Thomas, Wheeling, West Virginia, 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 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local Union No. 697, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All full-time and regular part-time furniture warehousemen and central receiving department employees at the Employee's Lane A warehouse on 4th Street, Wheeling, West Virginia, including all receiving dock employees, checkers, order checkers, claim clerk, receiving record clerk, and markers, but excluding all carpet workroom em- ployees and guards, professional employees, 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 Lane A warehouse on 4th Street, Wheeling, West Virginia, copies of the attached notice marked "Appendix." J Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily 3 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 " STONE & THOMAS posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 697, as the exclusive 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, 301 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 full-time and regular part-time furniture warehousemen and central receiving depart- ment employees at the Employer's Lane A warehouse on 4th Street, Wheeling, West Vir- ginia, including all receiving dock employees, checkers, order checkers, claim clerk, receiving record clerk, and markers, but excluding all carpet workroom employees and guards, pro- fessional employees, and supervisors as de- fined in the Act. STONE & THOMAS (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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.