Scot Lad Foods, Inc.

SCOT LAD FOODS. INC. Scot Lad Foods, Inc. and Laborers' International Union of North America, Laborers' Local 1250, AFL-CIO. Case 6-CA-15019 March 12, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on October 22, 1981, by La- borers' International Union of North America, La- borers' Local 1250, AFL-CIO, herein called the Union, and duly served on Scot Lad Foods, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 6, issued a complaint on November 9, 1981, 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 National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on August 6, 1981, following a Board election in Case 6-RC- 8909, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about October 7, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On November 16, 1981, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On December 7, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 11, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Official notice is taken of the record in the representlaion pro cecding, Case 6-RC 8909, as the term "record" is defined In Ses. . 102 . and 102.69(g) of the Board's Rules and Regulations, Serie 8. as amended See LT' FIlectroEstem*r. Inc. 166 NL RH 938 (1967), enfd 388 F 2d 83 (4th Cir 1968): Gollden 4 irc Bevrugi (C;, l7 NI RH 151 11967). enfd 415 F.2d 2b (5th Cir 14h96 Inip;rtvrp (o, P ncl,/ 2(, I[:Supp 57' (DC Va 1967): oIlh' it (;rp. It4 NI RIt 37S (197). nrld 3197 1 2d 91 (7th Cir 1Q68): Sec 9(d) of Ihe NI RA, a, .inlnded 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 The complaint alleges violations of Section 8(a)(l) and (5) of the Act by Respondent's refusal to bargain with the Union since October 7, 1981, on all issues affecting the wages, hours, and other terms and conditions of employment of the em- ployees in the appropriate unit. In its answer to the complaint and response to the Notice To Show Cause, Respondent admits the refusal to bargain but contends that it was not re- quired to bargain because the Union's certification in the underlying representation case is invalid. Thus, Respondent contends that there exists sub- stantial and material issues arising out of its objec- tions to the election and that they warrant a hearing. Such issues are, according to Respondent, the agency status of Joyce Batson, whether Bat- son's statements constituted misrepresentations, whether Respondent had an adequate opportunity to respond to Batson's alleged misrepresentations, and whether Batson's conduct was so aggravated as to create an atmosphere of fear of reprisal which rendered a free expression of choice of representa- tion impossible. A review of the record reveals that, pursuant to a Stipulation for Certification Upon Consent Elec- tion in Case 6-RC-8909, an election was held on February 5 and 6, 1981, in the appropriate unit. The tally was 17 for, and 8 against, the Union. There were no challenged ballots. Thereafter, Re- spondent filed objections to the election. On May 28, 1981, the Regional Director for Region 6 issued his Report and Recommendation on Objections in which he recommended that the objections be overruled, and that a certification of representative be issued. Respondent filed exceptions to the Re- gional Director's Report and Recommendation on Objections with the Board. On August 6, 1981, the Board issued its Decision and Certification of Rep- resentative (not reported in volumes of Board De- cisions) in which it adopted the Regional Direc- tor's findings and recommendations. In its Decision and Certification of Representative, the Board found that Respondent's exceptions "raise no mate- rial or substantial issues of fact or law which would warrant our reversal of the Regional Direc- tor's recommendation or require a hearing." It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- 260 NLRB No. 113 891 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cial circumstances a respondent in a proceeding al- leging 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. 2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent, a Delaware corporation with an office and place of business located in Hepzibah, West Virginia, has been engaged, at all times mate- rial herein, in the nonretail sale of groceries and re- lated products. During the 12-month period ending September 30, 1981, Respondent, in the course and conduct of its operations, sold and shipped from its Hepzibah, West Virginia, facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of West Virginia. During this same 12-month period, Respondent, in the course and conduct of its operations, purchased and received at its Hepzibah, West Virginia, facili- ty products, goods, and materials valued in excess of $50,000 directly from points outside the State of West Virginia. We find, on the basis of the foregoing, that Re- spondent 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 Laborers' International Union of North America, Laborers' Local 1250, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 2 See Pittshburgh Plats Glacs Co. v N.L. R B_ 313 UIS 146, 162 (1941 ) Rules and Regulations of she Board, Secs 102 67(1) and 102 t,)(c) III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All office and warehouse clerical employees including procurement clerks, secretaries, order clerks, accounting clerks, data process- ing operators and keypunchers; excluding all buyers, store counselors, tax accountants, con- fidential employees, systems analysts, manage- ment employees, and guards, professional em- ployees and supervisors as defined in the Act. 2. The certification On February 5 and 6, 1981, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 6, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on August 6, 1981, 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 2, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 7, 1981, and continu- ing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 7, 1981, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate 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. 892 SCO()T Al) F(OODS. INC IV. THI EFFECT OF THI UNF AIR I ABOR PRACTICES UPON CONMMIRCI The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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, 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Scot Lad Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laborers' International Union of North Amer- ica, Laborers' Local 1250, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All office and warehouse clerical employees, including procurement clerks, secretaries, order clerks, accounting clerks, data processing opera- tors, and keypunchers; excluding all buyers, store counselors, tax accountants, confidential employ- ees, systems analysts, management employees, and guards, professional 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 August 6, 1981, 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 October 7, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 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, Scot Lad Foods, Inc., Hepzibah, West Virginia, 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 Laborers' Interna- tional Union of North America, Laborers' Local 1250, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All office and warehouse clerical employees including procurement clerks, secretaries, order clerks, accounting clerks, data process- ing operators and keypunchers; excluding all buyers, store counselors, tax accountants, con- fidential employees, systems analysts, manage- ment employees, and guards, professional em- ployees and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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: 893 DECISI()NS O() NATI()NAI I A()OR R IAIO'l()NS B()ARD (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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its facility in Hepzibah, West Virgin- ia, copies of the attached notice marked "Appen- dix."3 Copies of said notice, on forms provided by the Regional Director for Region 6, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 l.abor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enfircing all Order of the National Lahbor Relations Hoard" 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 Laborers' International Union of North America, Laborers' Local 1250, AFL-CIO, 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 employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All office and warehouse clerical employees including procurement clerks, secretaries, order clerks, accounting clerks, data proc- essing operators and keypunchers; excluding all buyers, store counselors, tax accountants, confidential employees, systems analysts, management employees, and guards, profes- sional employees and supervisors as defined in the Act. SCOT LAD FOODS, INC. 894