Office Depot, Inc.

1 325 NLRB No. 139 1 On March 6, 1998, the Board issued an Order denying the Re- spondent’s request for review of the Regional Director’s Supple- mental Decision on Objections to Election and Certification of Rep- resentative. 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. Office Depot, Inc. and Teamsters Local 470, a/w International Brotherhood of Teamsters, AFL– CIO. Case 4–CA–26953 May 12, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND LIEBMAN Pursuant to a charge filed on March 19, 1998, the General Counsel of the National Labor Relations Board issued a complaint on March 25, 1998, 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 4–RC–19192. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined 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 April 13, 1998, the Acting General Counsel filed a Motion for Summary Judgment. On April 16, 1998, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. The Respondent filed a re- sponse and moved for dismissal of the complaint or, alternatively, a hearing on its objections in the underly- ing representation proceeding. 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 the Respondent asserts that any failure to bargain with the Union was lawful. The Respondent attacks the validity of the certification on the basis of its objections to the election and the Board’s unit de- termination 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 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 General Counsel’s Motion for Summary Judgment and deny the Respondent’s motion to dismiss the complaint or, alternatively, for a hearing on its objections. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware corporation with headquarters in Del Ray, Florida, and with a facility in Westhampton, New Jersey, has been engaged in the retail and nonretail sale of office sup- plies, products, and furniture. During the 12-month pe- riod preceding issuance of the complaint, the Respond- ent, in conducting its business operations, derived gross revenues in excess of $500,000, and purchased and received goods valued in excess of $50,000 di- rectly from points outside the States of Delaware, Flor- ida, and New Jersey. 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 November 14, 1997, the Union was certified on December 23, 1997,1 as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time truckdrivers employed by the Respondent at its Westhampton, New Jersey Customer Service Center, but exclud- ing all other employees, production employees, warehouse employees, shipping and receiving em- ployees, maintenance employees, plant clerical and print employees, satellite delivery center driv- ers, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since March 9, 1998, the Union has requested the Respondent to bargain, and, since that date, the Re- spondent has refused. We find that this refusal con- stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ CONCLUSION OF LAW By refusing on and after March 9, 1998, to bargain with the Union as the exclusive collective-bargaining 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, Office Depot, Inc., Westhampton, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local 470, a/w International Brotherhood of Teamsters, AFL–CIO as the exclusive bargaining representative of the em- ployees 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 employed by the Respondent at its Westhampton, New Jersey Customer Service Center, but exclud- ing all other employees, production employees, warehouse employees, shipping and receiving em- ployees, maintenance employees, plant clerical and print employees, satellite delivery center driv- ers, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Westhampton, New Jersey, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 4 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 March 9, 1998. (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. May 12, 1998 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Wilma B. Liebman, 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 Teamsters Local 470, a/w International Brotherhood of Team- sters, AFL–CIO as the exclusive representative of the employees in the bargaining unit. 3 OFFICE DEPOT, INC. 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: All full-time and regular part-time truckdrivers employed by us at our Westhampton, New Jersey Customer Service Center, but excluding all other employees, production employees, warehouse em- ployees, shipping and receiving employees, main- tenance employees, plant clerical and print em- ployees, satellite delivery center drivers, guards and supervisors as defined in the Act. OFFICE DEPOT, INC.