Johnson Bros. Wholesale Liquor Stores

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. Johnson Brothers Wholesale Liquor Company and Teamsters Local 792. Case 18–CA–14241 January 17, 1997 DECISION AND ORDER BY MEMBERS BROWNING, FOX, AND HIGGINS Pursuant to a charge filed on October 23, 1996, the General Counsel of the National Labor Relations Board issued a complaint on November 4, 1996, alleg­ ing that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus­ ing the Union’s request to bargain following the Union’s certification in Case 18–RC–15911. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu­ lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an an­ swer admitting in part and denying in part the allega­ tions in the complaint and asserting affirmative de­ fenses. On December 2, 1996, the General Counsel filed a Motion for Summary Judgment and brief in support. On December 4, 1996, the Board issued an order trans­ ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On December 18, 1996, the Union filed a statement in support of the General Counsel’s Motion for Summary Judgment. On December 24, 1996, the Respondent filed a memorandum in opposition to the Motion for Summary Judgment and in response to the Notice to Show Cause. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain but attacks the validity of the certifi­ cation on the grounds that the unit is inappropriate, the election was contract-barred, the Respondent was not permitted to challenge ineligible voters during the elec­ tion, the Union and Board agent engaged in objection- able activity during the election period, the petition violated the Union’s agreement not to represent certain employees, and the Board failed to conduct an appro­ priate self-representation election among the previously unrepresented employees not covered by the contract. All representation issues raised by the Respondent were or could have been litigated in the prior represen­ tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre­ viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro­ ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg­ ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times the Respondent, a corporation with an office and place of business in St. Paul, Min­ nesota, has been engaged in the wholesale sale and distribution of liquor products. During the 12-month period ending December 31, 1995, a representative pe­ riod, the Respondent, in conducting its business oper­ ations, derived gross revenues in excess of $500,000, purchased and received at its St. Paul, Minnesota facil­ ity goods valued in excess of $50,000 directly from sellers located outside the State of Minnesota, and sold and shipped from its St. Paul, Minnesota facility goods valued in excess of $50,000 directly to purchasers lo­ cated outside the State of Minnesota. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 16, 1996, the Union was certified on July 31, 1996, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time driver and warehouse employees employed by the Employer at its St. Paul, Minnesota facility; excluding office clerical employees, managers, guards, and super- visors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About August 12, 1996, the Union requested the Re­ spondent to bargain, and, since about August 23, 1996, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. 322 NLRB No. 159 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW By refusing on and after August 23, 1996, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac­ tices affecting commerce within the meaning of Sec­ tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec­ tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the un­ derstanding in a signed agreement. To ensure that the employees are accorded the serv­ ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe­ riod of the certification as beginning the date the Re­ spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Johnson Brothers Wholesale Liquor Com­ pany, St. Paul, Minnesota, its officers, agents, succes­ sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local 792 as the exclusive bargaining representative of the employ­ ees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu­ sive representative of the employees in the following appropriate unit on terms and conditions of employ­ ment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time driver and warehouse employees employed by the Employer at its St. Paul, Minnesota facility; excluding office clerical employees, managers, guards, and super- visors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in St. Paul, Minnesota, copies of the at­ tached notice marked ‘‘Appendix.’’1 Copies of the no­ tice, on forms provided by the Regional Director for Region 18 after being signed by the Respondent’s au­ thorized representative, shall be posted by the Re­ spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no­ tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro­ ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re­ spondent at any time since October 23, 1996. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 17, 1997 llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 1 If 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 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or­ dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Teamsters Local 792 as the exclusive representative of the em­ ployees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. JOHNSON BROS. WHOLESALE LIQUOR CO. 3 WE WILL, on request, bargain with the Union and Paul, Minnesota facility; excluding office clerical put in writing and sign any agreement reached on employees, managers, guards, and supervisors as terms and conditions of employment for our employees defined in the Act. in the bargaining unit: All full-time and regular part-time driver and JOHNSON BROTHERS WHOLESALE LIQ­ UOR COMPANY warehouse employees employed by us at our St.