Hook Drugs, Inc.

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hook Drugs, Inc. and Local No. 725, a/w Retail Clerks International Association (AFL-CIO) Case 25-CA-7713 June 10, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a charge filed on February 9, 1976, by Local No 725, a/w Retail Clerks International Association (AFL-CIO), herein called the Union, and duly served on Hook Drugs, Inc, herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 25, issued a complaint and notice of hearing on March 2, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended Copies of the charge, complaint, and notice of hear- ing 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 October 17, 1975, following a Board election in Case 25-RC-5963 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate,' and that, commenc- ing on or about October 23, 1975, 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 March 12, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint On March 17, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment Subsequently, on April 1, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the 'Official notice is taken of the record in the representation proceeding Case 25-RC-5963, 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 LTV Electrosystems, 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) Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7 1968) Sec 9(d) of the NLRA, as amended 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 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 In its answer to the complaint and response to the Notice to Show Cause Respondent admits all factual averments of the complaint but denies the majority representation status of the Union Respondent con- cedes that it refused to bargain with the certified union in order to test the validity of the certification in the United States Court of Appeals A review of the record in the representation pro- ceeding, Case 25-RC-5963, discloses that in an elec- tion conducted pursuant to a Stipulation for Certifi- cation Upon Consent Election the Union won by a vote of 225 to 138, with 12 challenged ballots which did not affect the results Respondent, thereafter, filed timely objections to conduct affecting the re- sults of the election in which it alleged, in substance, that the Union, during its preelection campaign, had represented to employees that they would become members regardless of the outcome of negotiations and that employees who did not support the Union would be discharged, represented to employees that Respondent's representatives were engaged in ha- rassment and surveillance, represented that employ- ees would benefit regardless of the outcome of the election, misrepresented wage scales of certain of Respondent's executives, and misrepresented bene- fits secured from another employer and the number of elections in which it was successful in the preced- ing year After investigation, the Regional Director issued a report on objections in which he recommended that the objections be overruled in their entirety and that the Union be certified The Board, on October 17, 1975, issued a Decision and Certification of Repre- sentative in which it adopted the Regional Director's recommendations and certified the Union as exclu- sive collective-bargaining representative of employ- ees in the unit herein found appropriate It is thus clear that Respondent is seeking to relitigate matters previously raised and determined in the representa- tion proceeding 2 2 In view of our disposition herein we shall deny the General Counsel s motion to strike certain portions of Respondents answer 224 NLRB No 86 HOOK DRUGS, INC It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding 3 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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 I THE BUSINESS OF THE RESPONDENT Respondent is an Indiana corporation with its principal office and place of business at Indianapolis, Indiana, and which maintains facilities including re- tail drugstores in various locations in Marion and Johnson Counties, where it engages in the retail sale of drugs and related products During the past year Respondent purchased and received goods and ma- terials valued in excess of $50,000 which were trans- ported to its Indiana facilities from outside the State of Indiana During the same period Respondent sold products, the gross value of which exceeded $500,000 We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein II THE LABOR ORGANIZATION INVOLVED Local No 725, a/w Retail Clerks International As- sociation (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act 3 See Pittsburgh Plate Glass Co v N L R B 313 U S 146, 162 (1941) Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) III THE UNFAIR LABOR PRACTICES A The Representation Proceeding I The unit 613 The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act All regular full-time and regular part-time em- ployees working at the Employer's retail drug stores located in Marion and Johnson Counties, Indiana, but excluding all store managers, assis- tant store managers, intern pharmacists, appren- tice pharmacists, pharmacists, and all profes- sional employees, snack bar employees, casual and/or seasonal employees, confidential em- ployees, and all guards and supervisors as de- fined in the Act 2 The certification On June 27, 1975, 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 25, 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 October 17, 1975, and the Union continues 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 October 20, 1975, 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 October 23, 1975, 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 October 23, 1975, 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 prac- tices within the meaning of Section 8(a)(5) and (1) of the Act 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 opera- tions described in section I, above, have a close, inti- mate, 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 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 ap- propriate 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 se- lected 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 (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), Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd 350 F 2d 57 (CA 10, 1965) The Board, upon the basis of the foregoing facts and the entire record, makes the following CONCLUSIONS OF LAW 1 Hook Drugs, Inc, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local No 725 a/w Retail Clerks International Association (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act 3 All regular full-time and regular part-time em- ployees working at the Employer 's retail drug stores located in Marion and Johnson Counties , Indiana, but excluding all store managers, assistant store man- agers, intern pharmacists, apprentice pharmacists, pharmacists, and all professional employees, snack bar employees , casual and/or seasonal employees, confidential employees, and all guards and supervi- sors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 Since October 17, 1975, the above-named labor 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 October 23, 1975, 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 en- gaged 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 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Hook Drugs, Inc, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Local No 725, a/w Re- tail Clerks International Association (AFL-CIO), as the exclusive bargaining representative of its employ- ees in the following appropriate unit All regular full-time and regular part-time em- ployees working at the Employer's retail drug- stores located in Marion and Johnson Counties, Indiana, but excluding all store managers, assis- tant store managers, intern pharmacists, appren- tice pharmacists, pharmacists, and all profes- sional employees, snack bar employees, casual and/or seasonal employees, confidential em- ployees, and all guards and supervisors as de- fined in the Act HOOK DRUGS, INC (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 retail drugstores in Marion and Johnson Counties, Indiana, copies of the attached notice marked "Appendix " 4 Copies of said notice, on forms provided by the Regional Director for Re- gion 25, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith 4In 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 615 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 Local No 725, a/w Retail Clerks International Associ- ation (AFL-CIO), as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 represen- tative of all employees in the bargaining unit de- scribed 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 regular full-time and regular part-time em- ployees working at the Employer's retail drug stores located in Marion and Johnson Coun- ties, Indiana, but excluding all store manag- ers, assistant store managers, intern pharma- cists, apprentice pharmacists, pharmacists, and all professional employees, snack bar em- ployees, casual and/or seasonal employees, confidential employees, and all guards and su- pervisors as defined in the Act HOOK DRUGS, INC