Korb's Trading Post

KORB'S TRADING POST Korb's Trading Post, Inc. and Warehouse, Processing & Distribution Workers' Union, Local 26, Interna- tional Longshoremen's & Warehousemen's Union. Case 31-CA-6887 September 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on March 9, 1977, by Warehouse, Processing & Distribution Workers' Union, Local 26, International Longshoremen's & Warehousemen's Union, herein called the Union, and duly served on Korb's Trading Post, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint on April 26, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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, order severing cases, amended 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 amended complaint alleges in substance that on December 20, 1976, following a Board election in Case 31-RC-3604, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate; 2 and that, commencing on or about February 18, 1977, and at all times thereafter, Respondent refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On May 13, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and raising as affirmative defenses that (I) the Acting Regional Director had no authority to certify a labor organization as an exclusive collective-bargaining representative, (2) Respondent was denied due process in the represen- tation proceeding, and (3) the results of the election are tainted by improper preelection conduct engaged in by the Union. I The complaint was issued as part of an order sevenng cases, amended complaint, and notice of heanng. Severed were Cases 31-CA-6594 and 31- CA-6736, which were settled by the parties on that date. 2 Official notice is taken of the record in the representation proceeding, Case 31-RC 3604, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See 232 NLRB No. 13 On June 23, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 1, 1977, 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. Respondent thereafter 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 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 amended complaint and response to the Notice To Show Cause, the Respon- dent admits its refusal to bargain, but attacks the Union's certification on the basis that (I) a unit including inventory control employees is inappropri- ate, (2) its objections in the underlying representation case were improperly overruled without a hearing, and (3) the Acting Regional Director has no authority to certify a labor organization as an exclusive representative. Counsel for the General Counsel argues that there are no matters warranting a hearing because the issues concerning the Union's certification were litigated and determined in the underlying representation case and that the Acting Regional Director acted within its delegated authori- ty. We agree with the General Counsel. A review of the record herein, including the record in Case 31-RC-3604, indicates that on October 14, 1976, an Acting Regional Director issued a Decision and Direction of Election in the unit found appropri- ate which included, inter alia, inventory control employees. The Union won the election conducted on November 10, 1976. Thereafter, the Respondent filed timely objections to the election alleging that the Union (1) made promises and guarantees of improved wages and benefits, (2) sent misleading campaign material, (3) threatened, coerced, and intimidated employees, (4) discriminated upon the basis of race, national origin, and sex, and (5) induced employees to vote for the Union by telling them that unless they voted for the Union they would have to pay initiation fees. On December 20, 1976, after investigation of the Respondent's objections, LTV Electrosystents, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969): Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967): Foller Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 67 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Acting Regional Director issued a Supplemental Decision and Certification of Representative, 3 over- ruling the objections and certifying the Union. The Respondent filed a timely request for the review of the Acting Regional Director's Supplemental Deci- sion and Certification of Representative, and the Board, by telegraphic order dated February 9, 1977, denied the request as it raised no substantial issue warranting review. As to Respondent's contention that its objections to the election in the underlying representation proceeding were improperly overruled without a hearing, we necessarily found in denying review of the Acting Regional Director's Supplemental Deci- sion and Certification of Representative that Re- spondent had not raised issues warranting a hearing and, therefore, a hearing was not required.4 It thus appears that Respondent is attempting to raise herein issues which were raised and determined in the underlying representation case. 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.5 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 BUSINESS OF THE RESPONDENT Respondent, a California corporation, is engaged in the warehousing and distribution of clothing to its retail outlets. Respondent annually purchases and receives goods or services valued in excess of $10,000 directly from suppliers located outside the State of 3 We find no merit to the Respondent's affirmative defense that the Acting Regional Director has no authonty to certify a labor organization as an exclusive collective-bargaining representative. Acting Regional Directors have the same authority as the Regional Director in whose stead they are designated to serve. The Board has delegated authority over representation cases to Regional Directors under Sec. 3(b) of the Act, and that delegation has been held to be valid. Wallace Shops, Inc., 133 NLRB 36 (1961); Weyerhaeuser Company, 142 NLRB 702 (1963); Magnesium Casting Co. v. California. It also annually derives gross revenues in excess of $500,000. 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 Warehouse, Processing & Distribution Workers' Union, Local 26, International Longshoremen's & Warehousemen's Union, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding i. 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 warehouse employees, shipping and receiving employees, maintenance and repair employees, plant clerical workers, inventory control clerks, and truck drivers employed by the Employer at its warehouse located at 4795 McGrath, Ventura, California; excluding all guards, watchmen, salesmen, office clerical employees and supervi- sors as defined in the Act. 2. The certification On November 10, 1976, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of Acting Regional Director for Region 31 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 20, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. N.L.R.B., 401 U.S. 137 (1971). Accordingly, the Acting Regional Director acted within the authority conferred upon him by his office in issuing the Supplemental Decision and Certification of Representative. See also Otis Hospital. Inc., 219 NLRB 164(1975). Williams Energy Company, 218 NLRB 1080, 1081 (1975). 5 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 68 KORB'S TRADING POST B. The Request To Bargain and Respondent's Refusal Commencing on or about November 10, 1976, and continuing to date, and more particularly, on February 18 and March 4 and 14, 1977, 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 February 18, 1977, 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 February 18, 1977, 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 the 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. 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 com- mences to bargain 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, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction 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. Korb's Trading Post, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse, Processing & Distribution Work- ers' Union, Local 26, International Longshoremen's & Warehousemen's Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees, shipping and receiv- ing employees, maintenance and repair employees, plant clerical workers, inventory control clerks, and truck drivers employed by the Employer at its warehouse located at 4795 McGrath, Ventura, California; excluding all guards, watchmen, sales- men, office clerical 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 December 20, 1976, 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 February 18, 1977, 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(aX5) 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Korb's Trading Post, Inc., Ventura, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Warehouse, Process- ing & Distribution Workers' Union, Local 26, International Longshoremen's & Warehousemen's Union, as the exclusive bargaining representative of its employees in the following appropriate unit: All warehouse employees, shipping and receiving employees, maintenance and repair employees, plant clerical workers, inventory control clerks, and truck drivers employed by the Employer at its warehouse located at 4795 McGrath, Ventura, California; excluding all guards, watchmen, salesmen, office clerical employees and supervi- sors 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 4795 McGrath, Ventura, California, location, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representa- tive, 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. 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director for Region 31, 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Ware- house, Processing & Distribution Workers' Union, Local 26, International Longshoremen's & Warehousemen's Union, 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 warehouse employees, shipping and receiving employees, maintenance and re- pair employees, plant clerical workers, in- ventory control clerks, and truck drivers employed by the Employer at its warehouse located at 4795 McGrath, Ventura, Califor- nia; excluding all guards, watchmen, sales- men, office clerical employees and supervi- sors as defined in the Act. KoRB's TRADING POST, INC. 70