Jason/Empire, Inc.

JASON/EMPIRE, INC 137 Jason/Empire, Inc. and Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local Union No. 955, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 17-CA-5928 June 28, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on February 4, 1974, by De- partment Store, Package, Grocery, Paper House, Li- quor and Meat Drivers, Helpers and Warehousemen, Local Union No. 955, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Jason/Empire, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint on February 8, 1974, 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 Nation- al 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 com- plaint alleges in substance that on December 21, 1973, following a Board election in Case 17-RC-7335 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate,I and that, commencing on or about January 21, 1974, and at all times thereaf- ter, 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 February 11, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 11, 1974, counsel for the General Coun- sel filed directly with the Board a motion to transfer the proceeding to the Board, to strike Respondent's 'Official notice is taken of the record in the representation proceeding, Case 17-RC-7335, 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 Elecirosystems, 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), interlype 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 answer in part, and for Summary Judgment. Subse- quently, on March 22, 1974, 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. On March 25, 1974, prior to the receipt of the Board's order of March 22, 1974, the Respondent filed a brief in opposition to motion to transfer the proceeding to the Board, to strike Respondent's answer in part, and for Summary Judgment; and, on March 27, 1974, it filed a motion to consolidate Case 17-CA-5928 with Case 17-CB-1265. Respondent thereafter filed a re- sponse to Notice To Show Cause, entitled "Supple- mental Brief in Opposition to Motion for Summary Judgment and Request for Oral Argument." 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,2 the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and in its briefs in opposition to the General Counsel's Motion for Sum- mary Judgment, the Respondent basically attacks the Union's representative status and certification be- cause the Union precluded the free choice of employ- ees in the representative election in Case 17-RC-7335, by offering to waive full initiation fees for all employees who signed authorization cards be- fore the election. It also contends that this offer was a violation of the Act under the Supreme Court's deci- sion in N.L.R.B. v. Savair Manufacturing Company, Inc., 414 U.S. 270 (1973), and based thereon it has filed an unfair labor practice charge against the Union in Case 17-CB-1265 and moves to consolidate that case with the instant case. Our review of the record herein reflects that a hear- ing on the Union's petition in Case 17-RC-7335 was held on October 15, 1973, at which the Respondent and Union stipulated to the Union's status as a labor organization and to the appropriateness of the bar- gaining unit. The Regional Director so found in his Decision and Direction of Election issued on Novem- ber 15, 1973. In the election conducted on December 13, 1973, pursuant to the Regional Director's direc- tion, 16 ballots were cast for, and 13 against, the 2 The Respondent's request for oral argument is hereby denied as the General Counsel' s motion and the Respondent's motion and briefs ade- quately present the positions of the parties The Respondent' s motion to consolidate Case 17-CA-5928 with Case 17-CB-1265 is hereby denied as the latter charges were administratively dismissed by the Regional Director for Region 17 and, following Respondent's appeal from that adverse ruling, the Regional Director's ruling was sustained by the General Counsel 212 NLRB No. 21 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, with 1 ballot challenged. No objections to the tally of ballots or to the conduct of the election having been filed within the time provided therefor, the Re- gional Director, on December 21, 1973, issued a certi- fication of representative, certifying the Union as the exclusive collective-bargaining representative of the employees in the appropriate stipulated unit. Thereafter, on February 7, 1974, the Respondent filed with the Regional Director an "Application for Leave to File Objections to Election Out of Time" and, on February 8, 1974, it filed an affidavit from its attorney in support thereof. According to the Respon- dent, after the election and after the expiration of the 5 days for the filing of objections, required by Section 102.69 of the Board's Rules and Regulations, it dis- covered that at a preelection organizational meeting the Union had offered "to waive full initiation fees ($50) for all employees who signed Union authoriza- tion cards before the Board-directed certification election" and that this waiver, which allegedly was a violation of the Act, precluded the employees' exer- cise of free choice in the election. On February 14, 1974, the Regional Director issued an order denying the Respondent's application because the Board's Rules and Regulations do not provide for filing of objections to an election out of time. The Regional Director noted that the Respondent had filed the ob- jection only after it was advised that the complaint herein was to be issued and that there were no unusual or extraordinary circumstances presented by the Re- spondent which would justify consideration of objec- tions at that time. The Respondent failed to file with the Board a request for review from the Regional Director's order. To the extent that the Respondent is seeking relitigation of issues which were raised or could have been raised in the representation case pro- ceeding, it may not do so. 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.' 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 find that the Respondent has not raised any issue J See Pittsburgh Plate Glass Co v N L R B ,313 US 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) which is properly litigable in this unfair labor practice proceeding .4 In its submission herein, the Respondent contends that the Union's offer to waive initiation fees, having been made at a preelection union organizational meeting, was not discovered until after the time for filing objections admittedly had expired and that it never had a hearing on the issue of waiver which, under the Supreme Court's decision in Savair, supra, allegedly violated the Act and which formed the basis for its unfair labor practice charge against the Union in Case l7-CB-1265, filed by it on February 8, 1974. We find no merit in the Respondent's contentions. First, although the alleged waiver was made at a pre- election union meeting, the Respondent has failed to show that with due diligence it could not have uncov- ered the evidence in time to file timely objections; nor has it explained why it did not disclose the evidence until after being advised that the complaint herein would issue, nearly 2 months after the election. In any event, the objection based on the newly discovered evidence of waiver would still be subject to Section 102.69 of the Board's Rules and Regulations, which provides that objections must be filed within 5 days after the tally of ballots has been furnished to the parties. In the instant case, the alleged evidence was not disclosed to the Regional Director until February 8, 1974, long after December 20, 1973, the last day for filing objections herein. In these circumstances and in view of the Board's determination that, to achieve certainty in procedural matters, it is essential that parties be held to a strict adherence to the Board's Rules and Regulations, any objections based on the alleged evidence would not be considered timely filed and would be overruled.' We shall, accordingly, grant the General Counsel's Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: In its answer, the Respondent has denied certain allegations of the com- plaint. the General Counsel has moved to strike these denials As to the Union's status as a labor organization under Sec 2(5) of the Act and as to the appropriateness of the unit , these were stipulated by the Respondent and so found by the Regional Director in the underlying representation Case 17-RC-7335 As to the date of the filing of the charge and as to the request and refusal to bargain , there are attached to the General Counsel 's Motion for Summary Judgment Exhibits A, B, and E, documents the contents of which have not been controverted or alluded to by the Respondent and which establish the denied allegations of the complaint Accordingly, the General Counsel's motion to strike these denials is granted and these denied alleations of the three are deemed to be true and to found 5 9 Heritage Nursing Center, Inc, 207 NLRB No 118 See also Personal Products Corporation, 114 NLRB 959, 961 In this connection , we also note that the Respondent failed to file with the Board an administrative appeal from the Regional Director's adverse ruling FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT JASON/EMPIRE, INC 139 continues to be such exclusive representative within the meaning of Section 9(a) of the Act. The Respondent, a Delaware corporation, is en- gaged in the import, warehousing, repair, and sale, at wholesale, of sporting goods and related products at its warehouse located in Overland Park, Kansas. The Respondent annually purchases goods and products valued in excess of $50,000 directly from suppliers outside the State of Kansas and annually sells goods at wholesale valued in excess of $50,000 directly to customers located outside the State of Kansas. We find, on the basis of the foregoing, the Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the mean- ing 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 Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Ware- housemen, Local Union No. 955, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen 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 full-time and regular part-time warehouse employees and repair service employees of Ja- son/Empire, Inc. at its Overland Park, Kansas, location; but excluding office clerical employees, outside salesmen, professional employees, guards and supervisors as defined in the Act. 2. The certification On December 13, 1973, 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 17, 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 December 21, 1973, and the Union B. The Request To Bargain and Respondent's Refusal Commencing on or about January 18, 1974, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about January 21, 1974, 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 January 21, 1974, 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1964), cert . denied 379 U.S. 817 ( 1964); Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), 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. Jason/Empire, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Ware- housemen, Local Union No. 955, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time warehouse employees and repair service employees of Jason/ Empire, Inc. at its Overland Park, Kansas, location; but excluding office clerical employees, outside sales- men, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since December 21, 1973, the above-named la- bor 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 January 21, 1974, 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 Re- spondent 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. tions Board hereby orders that Respondent, Jason/ Empire, Inc., Overland Park, Kansas, 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 Department Store, Pack- age, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local Union No. 955, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining repreaentative of its employees in the following appropriate unit: All full-time and regular part-time warehouse employees and repair service employees of Ja- son/Empire, Inc. at its Overland Park, Kansas, location; but excluding office clerical employees, outside salesmen, professional 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, 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 Overland Park, Kansas, location copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Re- gional Director for Region 17,-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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- 6 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 JASON/EMPIRE, INC. 141 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 De- partment Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Ware- housemen, Local Union No. 955, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described be- low. 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 full-time and regular part-time warehouse employees and repair service employees of Ja- son/Empire, Inc. at its Overland Park, Kansas, location; but excluding office clerical employ- ees, outside salesmen, professional employees, guards and supervisors as defined in the Act. JASON/EMPIRE, 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, 616 Two Gateway Center, Fourth at State, Kansas City, Kansas 66101, Telephone 816- 374-4518.