Lorenz Schneider Co., Inc.

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lorenz Schneider Co., Inc. and Independent Route- men's Association. Case 29-CA-3459 February 22, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENhLLO Upon a charge filed on June 28, 1973, by Independent Routemen's Association, herein called the Union, and duly served on Lorenz Schneider Co.. Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, issued a complaint on July 12, 1973, against Respondent, 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 Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative 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 May 29, 1973, following a Board election in Case 29-RC-1980 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about June 6, 1973, 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. On July 24, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 6, 1973. counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 14, 1973, 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 response to Notice To Show i Official notice is taken of the record in the representation proceeding, Case 29-R('-1980 as the term "record" is defined to Secs 10268 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended. See LJ V Elecirosytrcros, 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). lntertype Co v Penello, 269 1- Supp. 573 (D.C Va, 1967), Follett Corp, 164 NLRB 378, entd 397 F2d 91 (C.A 7, 1968), Sec. 9(d) of the NLRA 2 On November 9, 1973, Respondent filed with the Board a determina- tion of the Internal Revenue Service, mole fully descnbed in In 5. below On November 21, 1973. the Union filed a response thereto. On December 10, 1973. Respondent filed a request to reopen the proceedings accoinpa- nied by the statements of two of the distributors to which the Union also filed a response Respondent's request to reopen the proceeding is hereby Cause, entitled "Statement in Opposition to Motion of General Counsel for Summary Judgment and Respondent's Cross Motion for Summary Judg- ment. "2 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 7 HE MOTION FOR SUMMARY JUDGMENT In its answer to the complaint and its response to the Notice To Show Cause, Respondent contends that the complaint should be dismissed and the Certification of Representative issued in Case 29-RC-1980 should be revoked because the Board erred in certain determinations made therein, and that, contrary to those determinations, the distribu- tors involved herein, also at times called driver- salesinen, are independent contractors rather than employees; accordingly, the unit of such distributors is inappropriate, and the Union of such distributors is a trade association rather than a labor organiza- tion.3 Our review of the record in the underlying representation case indicates that on October 3, 1972, after a hearing, the Regional Director issued his Decision and Direction of Election in which he decided the above-described and other issues ad- versely to the Respondent. Thereafter, the Respon- dent filed a request for review in which it contended that certain of the Regional Director's findings were erroneous. By Order dated January 23, 1973, the Board granted the request for review insofar as it related to the employee status of the distributors, and denied it in all other respects. Subsequently, on April 25, 1973, the Board issued its own Decision on Review,' in which it affirmed the Regional Director's findings that the distributors were employees and remanded the case to the Regional Director to conduct an election pursuant to his Decision and Direction of Election. The Union having received a majority of the votes cast in the election conducted denied as lacking in merit M1 Although the answer to the complaint denies the fact and date of the filing of the charge for lack of sufficient information , the answer does admit service or the charge and the General Counsel's Motion for Summary' Judgment reiterates the allegations concerning the filing of the charge and appends a copy of the charge and of the Respondent's July 10. 1973, Statement of Position thereon However, the Respondent 's response to the Notice I o Show Cause neither alludes to nor controverts these allegations or the contents of the appended documents In these circumstances, we deem Respondent to have abandoned its denials of the above-mentioned allegations and find them to be admitted and true a 203 NLRB No 45 209 NLRB No. 16 LORENZ SCHNEIDER CO., INC. on May 18, 1973, the Regional Director. on May 29, 1973, certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. Respondent's response to the Notice To Show Cause includes an affidavit which contains assertions of fact at variance with the findings of fact made in the Board's Decision on Review. However, assum- ing that some of the assertions other than those described in footnote 5, below, are made here for the first time, Respondent does not contend that they are newly discovered or previously unavailable evidence or constitute special circumstances. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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.6 All issues raised by the Respondent in this proceeding 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 General Counsel's Motion for Summary Judgment, and deny Respondent's Cross-Motion for Summary Judgment and its motion to revoke the certification. On the basis of the entire record, the Board makes the following: FINDINGS OI FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, Lorenz Schneider Co., Inc., is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein Respondent has 5 As noted in In 2, above . Respondent filed with the Board a ruling of the internal Revenue Service That ruling, which was made on September 25, 1973, and amended November 1, 1973, finds the distributors involved herein to be independent contractors While the ruling of another Government agency is a lactor to he considered , we conclude such ruling is insufficient to warrant a revision in our findings herein for the following reasons ( I) Our determination was based on a record developed after a hearing in which the parties herein were given an opportunity to present witnesses and cross-exam ination, whereas the IRS ruling recites that it was based on SS-it forms submitted to the IRS by Respondent and 10 distributors , (2) our ruling, which was based on a fully developed record, contains one crucial finding that is at variance with the IRS finding. namely, that distributors -eceived instructions in other than their training periods, (3) the IRS ruling issued on September 25. 1973, which was almost 191 maintained its principal office and place of business at 2000 Plaza Avenue, in the town of New Hyde Park, county of Nassau, State of New York. and a warehouse located in the town of Riverhead, county of Suffolk, State of New York, where it is, and has been at all times material herein, engaged in the sale and distribution of food products and related products. During the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business, purchased and caused to be transported and delivered to its place of business, potato chips, pretzels, nuts, and other goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50.000 were transported and delivered to its places of business in interstate commerce directly from States of the United States other than the State in which it is located. 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. IIIE LABOR ORGANIZATION INVOI.\'ED Independent Routemen's Association is a labor organization within the meaning of Section 2(5) of the Act. III. IHE UNPAIR 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 distributors employed by Respondent, exclusive of all office clerical employees, ware- house employees, all other employees, guards and supervisors as defined in Section 2(11) of the Act. 4 months after our Decision on Review herein and more than a year after our hearing was held , made no mention of either our Decision or the record developed in the representation case, and (4) lastly, this case is unlike Imperial Garden Growers. 91 NLRB 1034, and Pan American World Airways, Inc. 115 NLRB 493, where the Board there deferred to the rulings of other departments or agencies which it considered to have primary jurisdiction in a field In the circumstances previously noted, we conclude that the IRS ruling should not be considered as controlling 6 See Pittsburgh Plate Glass Co v is L R B., 313 U S 146, 162 (1941); Rules and Regulations of the Board, Sees. 102 67(f) and 102 69(c). ' As the Respondent filed no answer to pars 2. 3 . 4. and 5 of the complaint concerning the Respondent's corporate status, its business, commerce data, and status as an employer engaged in commerce under the Act, the allegations are deemed to be admitted and found to be true 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The certification On May 18, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 29 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on May 29, 1973. and the Union continues to he 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 June 1 , 1973, 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 June 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 representa- tive for collective bargaining of all employees in said unit. Accordingly. we find that the Respondent has, since June 6. 1973, 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, 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. 1IIE EFF1iCi' OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, 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. TEtt; 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. 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: CON(LUSIONS OF LAW 1. Lorenz Schneider Co., inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Independent Routemen's Association is a labor organization within the meaning of Section 2(5) of the Act. 3. All distributors employed by Respondent, exclusive of all office clerical employees, warehouse employees, all other employees, guards and supervi- sors as defined in Section 2(11) of the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 29, 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 collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 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, 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. LORENZ SCHNEIDER CO., INC. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Lorenz Schneider Co., Inc., Hyde Park and River- head, New York, 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 Independent Route- men's Association as the exclusive bargaining repre- sentative of its employees in the following appropri- ate unit: All distributors employed by Respondent, exclusive of all office clerical employees, ware- house employees, all other employees, guards and supervisors as defined in Section 2(11) of 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 Hyde Park, New York, office and Riverhead, New York, warehouse copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 29 after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and he maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. s 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 193 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOI refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Inde- pendent Routemen's Association as the exclusive representative of the employees in the bargaining unit described below. WL 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 distributors employed by Respondent, exclusive of all office clerical employees, warehouse employees, all other employees, guards and supervisors as defined in Section 2(11) of the Act. LORENZ SCHNEIDER CO., INC. (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, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535.