Oshman's Sporting Goods

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oshman's Sporting Goods, Inc. and Teamsters, Warehousemen & Miscellaneous Union, Local 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 20-CA-12335 June 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on January 5, 1977, by Teamsters, Warehousemen & Miscellaneous Union, Local 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Oshman's Sporting Goods, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 20, issued a complaint and notice of hearing on January 28, 1977, 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, 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 complaint alleges in substance that on October 7, 1976, following a Board election in Case 20-RC- 13255 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; and that, commencing in July 1976 and on December 3, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 7, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 28, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 8, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- I Official notice is taken of the record in the representation proceeding, Case 13-RC-13255, as the term "record" is defined in Secs. 102.68 and 102.6 9(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, 230 NLRB No. 34 dent thereafter filed a response to Notice To Show Cause, entitled "Memorandum in Opposition to Motion for Summary Judgment." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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, the Respondent attacks the Union's majority status and certification, asserting that its election objections, which were overruled without a hearing, warranted setting aside the election and alternatively asserting that it is entitled to an evidentiary hearing on its objections. On the other hand, the General Counsel contends that there are no issues of law or fact requiring a hearing and that the Motion for Summary Judgment should be granted. We agree with the General Counsel. Review of the entire record, including that in Case 20-RC-13255, discloses that the Union lost the March 3, 1976, election conducted pursuant to the Regional Director's Decision and Direction of Election. The Union filed timely objections. On April 14, 1976, the Regional Director issued a Supplemen- tal Decision ordering that a hearing be held on some of the objections. Thereafter, pursuant to a stipula- tion of the parties approved by the Regional Director, the results of the election were set aside and a rerun election was conducted. In the rerun election, 14 votes were cast for, and 8 against, the Union, and there were no challenged ballots. The Respondent filed timely objections alleging, in substance, that the Union (I) threatened and coerced employees to support it; and (2) made material misrepresentations of fact concerning wage increases, prevailing wage rates, and the Respondent's unlawful conduct during the first election. After investigation of the objec- tions, the Regional Director issued on July 7, 1976, her Second Supplemental Decision and Certification of Representative in which she overruled the objec- tions in their entirety and certified the Union. The Respondent filed a timely request for review of the Regional Director's Second Supplemental Decision, reiterating its objections and contending that it was error to overrule the objections without a hearing and to certify the Union. On October 7, 1976, the Board denied the Respondent's request for review as it raised no substantial issues warranting review. By 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 312 OSHMAN'S SPORTING GOODS, INC. this denial of review, because of the lack of substantial issues, the Board also necessarily found that there were no issues warranting a hearing.2 It thus appears that there are no issues of fact or law requiring a hearing herein and that the Respondent is attempting to raise issues which were raised and resolved in the underlying representation proceeding. This it may not do. 3 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging 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.4 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer 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 properly 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 retail and wholesale facilities located in the State of California, including a warehouse facility located at Millbrae, California, has been engaged in the retail sale of sporting goods and equipment. During the past calendar year, Respondent, in its business opera- tions, received gross revenues in excess of $500,000. During that period, Respondent, in its business operations, received in California goods valued in excess of $50,000 directly from suppliers located outside the State of California. We find, on the basis of the foregoing, that Respondent 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. 2 Williams Energy Company, 218 NLRB 1080, 1081 (1975). 3 Modine Manufacturing Company, 203 NLRB 527, enfd. 500 F.2d 914 (C.A. 8, 1974); CSC Oil Company, 220 NLRB 19 (1975). II. THE LABOR ORGANIZATION INVOLVED Teamsters, Warehousemen & Miscellaneous Union, Local 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All warehouse employees employed by the Employer at its Millbrae, California, facility, including shippers, receivers, stockers, packers, order fillers, order pullers, truck drivers and warehouse clerical employees; excluding all other employees, guards and supervisors as defined in the Act. 2. The certification On May 13, 1976, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on July 7, 1976, 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 in July 1976 and on December 3, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining repre- sentative of all the employees in the above-described unit. Commencing in July 1976 and on December 3, 1976, 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 in July 1976 and on December 3, 1976, and at 4 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 313 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 opera- tions described 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 disputes burdening and obstructing commerce and the free flow of com- merce. 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 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. Oshman's Sporting Goods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Warehousemen & Miscellaneous Union, Local 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees employed by the Employer at its Millbrae, California, facility, includ- ing shippers, receivers, stockers, packers, order fillers, order pullers, truck drivers and warehouse clerical employees; excluding all other employees, guards 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 July 7, 1976, 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 in July 1976 and on December 3, 1976, and at all times thereafter, to bargain collec- tively 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged 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 mean- ing 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 Relations Board hereby orders that the Respondent, Oshman's Sporting Goods, Inc., Millbrae, California, 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 Teamsters, Ware- housemen & Miscellaneous Union, Local 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All warehouse employees employed by the Employer at its Millbrae, California, facility, including shippers, receivers, stock- ers, packers, order fillers, order pullers, truck drivers and warehouse clerical employees; excluding all other employees, guards and supervisors as defined in the Act. 314 OSHMAN'S SPORTING GOODS, INC. (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 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Millbrae, California, facility, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 20, 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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." 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 Team- sters, Warehousemen & Miscellaneous Union, Local 860, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, 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 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 representa- tive 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 understanding in a signed agree- ment. The bargaining unit is: All warehouse employees employed by the Employer at its Millbrae, California, facility, including shippers, receivers, stock- ers, packers, order fillers, order pullers, truck drivers and warehouse clerical employees; excluding all other employees, guards and supervisors as defined in the Act. OSHMAN'S SPORTING GOODS, INC. 315