Payless Cashway Lumber Store of South St. Paul, Inc.

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Payless Cashway Lumber Store of South St. Paul, Inc. and Midwestern States Regional Council No. IV, International Woodworkers of America, AFL-CIO . Case 18-CA-3969 February 21, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on September 6, 1973, by Midwestern States Regional Council No. IV, Inter- national Woodworkers of America, AFL-CIO, herein called the Union, and duly served on Payless Cashway Lumber Store of South St. Paul, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 18, issued a complaint on September 28, 1973, 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 24, 1973, following a Board election in Case 18-RC-9161 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; t and that, commenc- ing on or about August 30, 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 October 9, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 25, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 5, 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 Cause, entitled Opposition to Motion for Summary Judgment. I Official notice is taken of the record in the representation proceeding, Case 18-RC-9161, as the term "record" is defined in Secs. 102.68 and 102.69(1) 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); 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 answer to the complaint and response to the Notice To Show Cause, the Respondent opposes the General Counsel's Motion for Summary Judgment on the ground that its admitted refusal to bargain with the certified Union was justified as a matter of law because the Board erroneously failed to set aside the representation election on the basis of its objections and because the Respondent erroneously was not afforded a hearing on part of its objections. The General Counsel argues that the Respondent is improperly attempting to relitigate matters that were previously raised and decided in the underlying representation proceeding. We agree with the Gener- al Counsel. Our review of the record herein reflects that the Union won the election of August 3, 1972, conducted pursuant to a Stipulation for Certification Upon Consent Election in Case 18-RC-9161. Thereafter, the Respondent timely filed objections to conduct affecting the results of the election alleging in substance that (1) the Union misstated material facts to which the Respondent had no opportunity to reply; (2) the Union threatened employees; (3) the Union intimidated employees; (4) a prominent local person interfered with the election in an unwarranted manner and threatened violence to an employee's person and property; and (5) the election was conducted in an atmosphere of fear, coercion, and material misrepresentation. After investigation, the Acting Regional Director issued, on October 4, 1972, his Report and Recommendation on Objections to Conduct Affecting the Results of the Election, Order and Notice of Hearing, in which he recommended that Objections 1, 2, and 3 be overruled and a hearing be held on the issues raised by Objection 4 upon which Objection 5 was dependent. The Respondent filed with the Board timely exceptions to the report and a motion for special permission to appeal from the order and notice of hearing alleging, contrary to the Acting Regional Director, that the Objections 1, 2, and 3 raised substantial and material factual issues warranting a hearing and requesting that the hearing on Objection 4 be expanded to include these issues. On January 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. 209 NLRB No. 29 PAYLESS CASHWAY LUMBER STORE 29, 1973, the Board issued its Decision and Direction (1) in which it adopted the Acting Regional Direc- tor's findings, conclusions, and recommendations as the exceptions raised no material or substantial issues of fact and law warranting reversal of the Acting Regional Director; and (2) in which it directed a hearing in accordance with the Acting Regional Director's Order and Notice of hearing.2 After a hearing in which all parties had the opportunity to participate, the Hearing Officer issued, on May 1, 1973, his Report and Recommen- dations recommending that the Board overrule Objection 4 and the portion of Objection 5 which related to Objection 4 and that the Board certify the Union. The Respondent filed with the Board timely exceptions to the Hearing Officer's Report and Recommendations in which it reiterated its excep- tions to the Acting Regional Director's report. In its Supplemental Decision and Certification of Repre- sentative, of July 24, 1973, the Board adopted the Hearing Officer's findings and recommendations and certified the Union. It thus appears that, in the instant proceeding, the Respondent is attempting to relitigate issues raised and determined adversely to it in the underlying representation case and this it may not do herein. 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.3 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 Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE RUSINFSS OF TIIE RESPONDENT Respondent, a Minnesota corporation with princi- pal office and place of business in St. Paul, 2 On March 8, 1973, the Respondent filed with the Board a motion to expand scope of hearing in order to take testimony and other evidence on the issues raised by Objection 1. On March 12, 1973, the Board denied the motion as it raised no ubstantial issues of fact or law warranting expansion 137 Minnesota, is engaged in the retail sale of building materials and hardware. During the fiscal year ending December 31, 1973, Respondent, in the course of its business operation, derived gross revenue in excess of $500,000 and purchased and caused to be transported to its Minnesota place of business, goods and materials valued in excess of $50,000 directly from points located outside the State of Minnesota. 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 Midwestern States Regional Council No. IV, International Woodworkers of America , AFL-CIO, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All yard salesmen, counter salesmen, cashiers and stock boys employed by the Respondent at its South St. Paul, Minnesota, facility; excluding office clerical employees, managerial employees, guards and supervisors as defined in the Act. 2. The certification On August 15, 1972, 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 18, 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 July 24, 1973, and the Union continues to he such exclusive representative within the meaning of Section 9(a) of the Act. of the scope of the hearing. 3 See Pittsburgh Plate Glass C o v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board. Secs 102 67(f) and 102 69(c) 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about August 20, 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. As alleged in the complaint and admitted in the answer, the Union requested the Respondent to furnish it the hourly rate of pay, the total earnings, the number of holidays and amount of holiday pay, the number of weeks of vacation granted, and the amount of vacation pay during the 12-month period ending June 30, 1973, for each employee in the above- described unit. Commencing on or about August 30, 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 and to supply any of the information and data described above. Accordingly, we find that the Respondent has, since August 30, 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. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, 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. Payless Cashway Lumber Store of South St. Paul, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Midwestern States Regional Council No. IV, International Woodworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All yard salesmen, counter salesmen, cashiers and stock boys employed by the Respondent at its South St. Paul, Minnesota, facility; excluding office clerical employees, managerial 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 24, 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 August 30, 1973, and at all times thereafter, to provide information necessary and relevant for intelligent collective bargaining and 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 provide information and 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 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. PAYLESS CASHWAY LUMBER STORE 139 ORDER APPENDIX Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Payless Cashway Lumber Store of South St. Paul, Inc., St. Paul, Minnesota, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to provide information necessary and relevant for intelligent collective bargaining and to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of employ- ment with Midwestern States Regional Council No. IV, International Woodworkers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All yard salesmen, counter salesmen, cashiers and stock boys employed by the Respondent at its South St. Paul, Minnesota, facility: excluding office clerical employees, managerial 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, provide information necessary and relevant for intelligent collective bargaining and 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 understanding is reached, embody such understanding in a signed agreement. (b) Post at its South St. Paul, Minnesota, facility copies of the attached notice marked "Appendix."a Copies of said notice, on forms provided by the Regional Director for Region 18 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. " 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 " NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WF WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Mid- western States Regional Council No. IV, Interna- tional Woodworkers of America, AFL-CIO, as the exclusive 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 yard salesmen , counter salesmen, cashiers and stock boys employed by the Respondent at its South St . Paul, Minnesota, facility: excluding office clerical employees, managerial employees, guards and supervi- sors as defined in the Act. PAYLESS CASHWAY LUMBLR STORE OF SOUTH ST. PAUL, 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, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Tele- phone 612-725-2611.