Romeo & Sons, Inc.

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. Romeo & Sons, Inc. and United Mine Workers of America, AFL–CIO. Case 6–CA–28414 January 27, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Pursuant to a charge filed on August 15, 1996, the General Counsel of the National Labor Relations Board issued a complaint on August 29, 1996, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer­ tification in Case 6-RC-11260. (Official notice is taken of the ‘‘record’’ in the representation proceeding as de- fined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com­ plaint. On December 18, 1996, the General Counsel filed a Motion for Summary Judgment. On December 20, 1996, the Board issued an order transferring the pro­ ceeding to the Board and a Notice to Show Cause why the motion should not be granted. On January 13, 1997, the Respondent filed a response. 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,1 but attacks the validity of the certification on the basis of its objections to the elec­ tion in the representation proceeding. 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 1 Although the Respondent admitted that it has refused to bargain with the Union, it denies the specific allegation that the Union re- quested bargaining by letters dated July 16 and 29, 1996, and that since August 2, 1996, by letter, it refused to recognize and bargain with the Union. The Respondent states that the documents speak for themselves. The letters are attached to the General Counsel’s motion and the Respondent’s August 2, 1996 letter states that in response to the Union’s letters, the Respondent will not engage in bargaining because the certification was improper. Although there is no basis for the Respondent’s denials, we find it unnecessary to grant the General Counsel’s motion to strike those defenses. 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, with its sole facility located in Uniontown, Pennsylvania, has been engaged in the wholesale grocery business. During the 12-month period ending July 31, 1996, the Respondent in conducting is business operations described above, sold and shipped from its Uniontown, Pennsylvania fa­ cility goods valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania and purchased and received at its Uniontown, Pennsylvania facility goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylva­ nia. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organi­ zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held January 19, 1996, the Union was certified on June 27, 1996, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time truckdrivers, warehousemen, meatcutters, showroom employ­ ees, artists and office clerical employees, em­ ployed by the Employer at its Uniontown, Penn­ sylvania facility; excluding all buyers, outside sales employees and guards, professional employ­ ees and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since July 16 and 29, 1996, the Union has requested the Respondent to bargain, and, since August 2, 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. CONCLUSION OF LAW By refusing on and after August 2, 1996, to bargain with the Union as the exclusive collective-bargaining 322 NLRB No. 171 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices af­ fecting commerce within the meaning of Section 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, Romeo & Sons, Inc., Uniontown, Penn­ sylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Mine Workers of America, AFL–CIO as the exclusive bargaining rep­ resentative of the employees 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 truckdrivers, warehousemen, meatcutters, showroom employ­ ees, artists and office clerical employees, em­ ployed by the Employer at its Uniontown, Penn­ sylvania facility; excluding all buyers, outside sales employees and guards, professional employ­ ees and supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Uniontown, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’2 Copies of 2 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 the notice, on forms provided by the Regional Director for Region 6 after being signed by the Respondent’s authorized 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 August 15, 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 27, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, Member (SEAL) 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 United Mine Workers of America, AFL–CIO as the exclusive rep­ resentative of the employees 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. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ ROMEO & SONS, INC. 3 All full-time and regular part-time truckdrivers, ees and guards, professional employees and super- warehousemen, meatcutters, showroom employ- visors as defined in the Act, and all other employ­ ees, artists and office clerical employees, em- ees. ployed by us at our Uniontown, Pennsylvania fa­ cility; excluding all buyers, outside sales employ- ROMEO & SONS, INC.