City Products Corp.

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ben Franklin Division of City Products Corporation and International Union, United Automobile, Aero- space and Agricultural Implement Workers of America-UAW. Case 21-CA-14412 June 28, 1976 DECISION AND ORDER' By MEMBERS FANNING, PENELLO, AND WALTHER Upon a charge filed on February 23, 1976, by In- ternational Union, United Automobile, Aerospace and Agricultural Implement Workers of America- UAW, herein called the Union, and duly served on Ben Franklin Division of City Products Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 21, issued a complaint and notice of hearing on February 27, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National La- bor 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 com- plaint alleges in substance that on February 4, 1976, following a Board election in Case 21-RC-14270, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commenc- ing on or about February 16, 1976, 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 and to fur- nish relevant and necessary bargaining information, although the Union has requested and is requesting it to do so. On March 2, 1976, Respondent filed its ' On July 15, 1976, counsel for the General Counsel filed with the Board a Motion for Reconsideration contending that the Board had inadvertently failed ( I) to make findings of fact or conclusions of law as to allegations of the complaint concerning Respondent 's refusal to supply certain relevant and necessary bargaining information requested by the Union and (2) to specify in its Order that such conduct was violative of Section 8 (a)(1) and (5) of the Act. The Board granted the General Counsel's Motion for Reconsideration and amended its Decision and Order as it appears herein i Official notice is taken of the record in the representation proceeding, Case 21-RC-14270, 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 answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. On April 12, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on April 21, 1976, 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 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, in substance, (1) denies the validity of the certification based on its election objections, (2) contends that the refusal of the Regional Director to consider or hold a hearing on a late-filed objection was a denial of due process, and (3) requests a hearing on its objections, including the late-filed objection. Counsel for the General Counsel argues in her Motion for Summary Judg- ment that Respondent seeks to relitigate issues previ- ously considered in the representation case and that there are no factual issues warranting a hearing. We agree. Review of the record, including that of the repre- sentation proceedings in Case 21-RC-14270, shows that, upon a Stipulation for Certification Upon Con- sent Election, an election was held on October 2, 1975, which the Union won, 24 to 19, with no chal- lenged ballots. On October 3, 1975, Respondent filed timely objections alleging, in substance, threats by the Union and its employee supporters to the effect that employees not voting for the Union would be terminated and that Cuban employees would be dis- charged if the Union lost. Respondent filed a motion for a hearing on October 23, 1975, contending that subpenas were required to fully uncover the cam- paign of threats because the threats had made certain employees reluctant to give testimony. By telegram of October 24, 1975, Respondent stated that an em- ployee affidavit had disclosed supervisory threats and requested that this allegation be considered as constituting part of Respondent's original objections. On November 5, 1975, the request was denied by the Regional Director as untimely. After an investigation, the Regional Director is- sued his Report on Objections on November 25, 225 NLRB No. 42 BEN FRANKLIN DIV. OF CITY PRODUCTS CORP. 245 1975, in which he denied the hearing request as un- necessary. He found that only four employees had been threatened, the threats were not made by union agents, the alleged supervisory threat was made to only one employee,2 and, even if the threats had been more pervasive, Respondent had assured employees 1 week before the election that no employee would be fired even if the Union won. Under all these cir- cumstances, the Regional Director concluded that the alleged threats of discharge made by fellow em- ployees did not preclude a fair election and accord- ingly he recommended that the objections be over- ruled and the Union be certified. Thereafter, Respondent filed timely objections to the report, reit- erating its objections and seeking a hearing or a sec- ond election. Respondent contended that the failure to grant a hearing was a denial of due process and that the refusal to consider Respondent's supervisory threat allegation was an abuse of discretion. On Feb- ruary 4, 1976, the Board issued its Decision and Cer- tification of Representative in which it specifically found that Respondent's exceptions raised no mate- rial or substantial issues of fact or law warranting reversal of the Regional Director's findings and rec- ommendations or requiring a hearing. With regard to Respondent's late-filed objection, the Board noted that the supervisory threat had been disclosed during the Regional Director's investigation but that, in light of the assurance of employment security made by Respondent, employees could not reasonably have relied on any earlier made assertions to the con- trary by Respondent's supervisor. Accordingly, the Board adopted the findings and recommendations of the Regional Director and certified the Union. Respondent requests a hearing on its objections in this proceeding. We deny this request. It is well es- tablished that a party is not entitled to a hearing on objections absent a showing of substantial and mate- rial issues.' Here the Board specifically found that Respondent had failed to make such a showing. Fur- ther, the Board has held, with judicial approval, that evidentiary hearings are not required in unfair labor practice cases and summary judgment is appropriate, where, as here, there are no substantial or material facts to be determined." It thus appears that Respon- dent is attempting to relitigate herein issues raised and resolved in the underlying representation case. 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 2 This threat was the subject of Respondent's late-filed objection 3 National Beryllia Corporation, 222 NLRB 1289 (1976), and cases cited therein 4 Handy Hardware Wholesale, Inc, 222 NLRB 373 (1976), and cases cited therein 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.' 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.6 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 is a corporation engaged in the sale of merchandise at wholesale to franchised variety stores, with a facility located at 3030 South Atlantic Boulevard, Vernon, California. In the course and conduct of its business operations, Respondent an- nually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California. 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 International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica-UAW, is a labor organization within the mean- ing of Section 2(5) of the Act. 5 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(1) and 102 69(c) 6 In its answer, Respondent denied the allegations of the complaint with respect to the Union's request for bargaining and information and Respondent's refusal thereto Attached to the Motion for Summary Judg- ment are a letter from the Union dated February 10, 1975, requesting nego- tiations and information and a letter of refusal from Respondent dated February 16, 1976 As Respondent offers nothing to controvert this evi- dence , we deem the complaint allegations concerning the request and refus- al to bargain to be admitted to be true and so find Thrift Drug, a Division of J C Penney Company, Inc, 215 NLRB 259 (1974), and cases cited therein 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 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 warehouse employees including order fil- lers, stockmen and stockhelpers, lift operators, receiving and shipping department employees, packers, journal clerk, service inspector and combination order filler/order preparation em- ployee; excluding computer operator, truckdriv- ers, office clerical employees and supervisors and guards as defined in the Act. 2. The certification On October 2, 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 21, 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 February 4, 1976, 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 Accordingly, we find that the Respondent has, since February 16, 1976, 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 to furnish relevant and necessary bargaining information, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Commencing on or about February 10, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit and to furnish it with relevant and necessary bargaining informa- tion concerning the employees in the above-de- scribed unit, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of said employees. Commencing on or about February 16, 1976, 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 furnish relevent and necessary bargaining in- formation. 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, and furnish relevant and necessary bargaining infor- mation concerning the employees in the appropriate unit, including, but not limited to, the names, classifi- cations, wage rates, length of employment, and fringe benefits of said employees. 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 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Ben Franklin Division of City Products Corpo- ration is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- BEN FRANKLIN DIV. OF CITY PRODUCTS CORP. 247 ica-UAW, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All warehouse employees including order fillers, stockmen and stockhelpers, lift operators, receiving and shipping department employees, packers, journal clerk, service inspector and combination order filler/ order preparation employee; excluding computer op- erator, truckdrivers, office clerical employees and su- pervisors and guards as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since February 4, 1976, 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 February 16, 1976, 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, and to furnish relevant and necessary bargaining information concerning said employees, including, but not limit- ed to, the names, classifications, wage rates, length of employment, and fringe benefits of employees. Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. 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 with the meaning 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, Ben Franklin Division of City Products Corporation, Vernon, California, 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 con- ditions of employment with International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America-UAW, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All warehouse employees including order fil- lers, stockmen and stockhelpers, lift operators, receiving and shipping department employees, packers, journal clerk, service inspector and combination order filler/order preparation em- ployee; excluding computer operator, truckdriv- ers, office clerical employees and supervisors and guards as defined in the Act. (b) Refusing to furnish relevant and necessary bargaining information concerning the employees in the above-described unit, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of said employees. (c) 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, and upon request furnish relevant and necessary bargaining information concerning the employees in the aforesaid appropriate unit, includ- ing, but not limited to, the names, classifications, wage rates, length of employment, and fringe bene- fits of said employees. (b) Post at its Vernon, California, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Di- rector for Region 21, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able 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 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Tin 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 " 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca-UAW, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL NOT refuse to furnish the above- named Union with relevant and necessary bar- gaining information concerning employees in the bargaining unit described below, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of such employees. 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, and upon request furnish the Union with relevant and necessary bargaining informa- tion concerning the employees in the bargaining unit described below, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of such em- ployees. The bargaining unit is: All warehouse employees including order fillers, stockmen and stockhelpers, lift opera- tors, receiving and shipping department em- ployees, packers, journal clerk, service inspe"- tor and combination order filler/order preparation employee; excluding computer operator, truckdrivers, office clerical employ- ees and supervisors and guards as defined in the Act BEN FRANKLIN DIVISION OF CITY PRODUCTS CORPORATION