San Antonio Retail Merchants Association

634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Antonio Retail Merchants Association and Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers, UAW. Case 23-CA-5203 December 16, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge and amended charge filed on August 2 and 21, 1974, respectively, by International Union, United Automobile, Aerospace and Agricultural Im- plement Workers, UAW, herein called the Union, and duly served on San Antonio Retail Merchants Associa- tion, herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Re- gional Director for Region 23, issued a complaint on August 21, 1974, against Respondent, alleging that Re- spondent 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 com- plaint alleges in substance that on May 17, 1974, fol- lowing a Board election in Case 23-RC-4038 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about May 29, 1974, 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 August 28, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and stating that the Gen- eral Counsel's complaint did not state a claim upon which relief could be granted. On September 18, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, arguing that by its answer to the complaint Respondent was attempting to relitigate is- sues which had been litigated and resolved in the repre- sentation proceeding. Subsequently, on September 20, Official notice is taken of the record in the representation proceeding, Case 23-RC-4038, 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), IntertypeCo. v Penello, 269 F Supp 573 (D C Va, 1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRB 1974, the Board issued an order transferring the pro- ceeding 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 its opposition to the General Counsel's Motion for Sum- mary Judgment, with affidavits attached. 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 argues that it has no obligation to bargain with the Union because the Union's certification in the representation proceeding is invalid due to preelection conduct by the Union which affected the result of the election. Respondent also contends that a hearing is required on its objec- tions to the election to satisfy the requirements of due process. In view of the General Counsel's contention that Respondent is attempting to relitigate issues previously considered and resolved in the underlying representa- tion proceeding, we have reviewed the record thereof. It reveals that following the Union's victory in the election, which was conducted pursuant to a Stipula- tion for Certification Upon Consent Election, Re- spondent filed timely objections to the election, alleging in substance that the Union had made misrepresenta- tions and illegal promises, particularly in a leaflet dis- tributed to employees, which had materially influenced the election results. Following investigation, the Re- gional Director issued a Report and Recommendation on Objections to the Election, finding that the Union's statements were within the bounds of legitimate cam- paigning, and recommending that the objections be overruled and the Union certified. Respondent ex- cepted to this report arguing before the Board that the Regional Director's conclusions were erroneous and that a hearing was required on its objections. On May 17, 1974, the Board issued a Decision and Certification of Representative, adopting the findings and conclu- sions of the Regional Director, and noting that Respon- dent's exceptions raised no material issues of fact or law which warranted reversing the Regional Director or required a hearing. Accordingly, it certified the Union. It thus appears that Respondent raised and litigated its contentions, both as to its objections and the neces- sity of a hearing, in the underlying representation pro- ceeding, and it may not relitigate them herein, as it is well settled that in the absence of newly discovered or 215 NLRB No. 87 SAN ANTONIO RETAIL MERCHANTS ASSN. 635 III THE UNFAIR LABOR PRACTICES previously unavailable evidence or special circum- stances a respondent in a proceeding alleging a viola - A. The Representation Proceeding tion 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 repre- sentation proceeding, and the Respondent does not of- fer 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 prop- erly 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, a Texas corporation with its principal office and place of business at San Antonio, Texas, is engaged in the business of providing consumer credit reporting and collection services to individual mer- chants, to credit grantors , such as banks, and to other reporting agencies and credit bureaus. During the preceding 12 months, which period is representative of all times material herein , Respondent, in the course and conduct of its business operation, received gross reve- nues in excess of $500 ,000, and during the same period received gross revenues in excess of $50,000 for services performed for commercial customers located outside the State of Texas. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 2 See Pittsburgh Plate Glass Co v NL R B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 3 We find no merit in Respondent's contention in its affirmative defense that the complaint does not state a claim upon which relief could be granted, as the complaint clearly alleges conduct violative of Sec 8(a)(5) and (I) of the Act 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 Collection Service Division employees and Credit Reporting Division employees employed by the Employer at its San Antonio, Texas, facility, excluding all other employees , guards, watchmen and supervisors as defined in the Act. 2. The certification On January 24, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 23, designated the Union as their represen- tative 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 May 17, 1974, 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 May 22, 1974, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about May 29 , 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 collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since May 29, 1974, 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, Respondent 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 III, above, occurring in connection with its operations de- scribed 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 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences 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); Com- merce 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 Com- pany, 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. San Antonio Retail Merchants Association 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, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. All Collection Service Division employees and Credit Reporting Division employees employed by the Employer at its San Antonio, Texas, facility, excluding all other employees, guards, watchmen 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 May 17, 1974, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 29, 1974, 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(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER . Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, San Antonio Retail Merchants Association, San Antonio, Texas, 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 conditions of employment with International Union, United Au- tomobile, Aerospace and Agricultural Implement Workers, UAW, as the exclusive bargaining represen- tative of its employees in the following appropriate unit: All Collection Service Division employees and Credit Reporting Division employees employed by the Employer at its San Antonio, Texas, facility, excluding all other employees, guards, watchmen 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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. (b) Post at its San Antonio, Texas, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 23, after being duly signed by Respon- dent's representative, shall be posted by Respondent 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 " SAN ANTONIO RETAIL MERCHANTS ASSN 637 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 al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, 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 con- cerning rates of pay , wages, hours, and other terms and conditions of employment with International Union, United Automobile, Aerospace and Agricultural Implement Workers, UAW, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere 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 under- standing in a signed agreement . The bargaining unit is: All Collection Service Division employees and Credit Reporting Division employees em- ployed by the Employer at its San Antonio, Texas, facility, excluding all other employees, guards, watchmen and supervisors as defined in the Act. SAN ANTONIO RETAIL MERCHANTS ASSOCIATION