Draper-King Cole, Inc.

I)f('ISIONS O NAI'IONAI LABOR RELATIONS BOARD) Draper-King Cole, Inc. and Draper Canning Compan and Chauffeurs, Warehousemen & Helpers Local Union No. 876, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 5 CA 10420 Mav 8, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MIMBLRS PNF.I0 ANt) TRUF}SI)AILE Upon a charge and amended charge filed on Janu- ary 3 and 10, 1979, respectively, by Chauffeurs, Warehousemen & Helpers Local Union No. 876, af- filiated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Draper-King Cole, Inc., and Draper Canning Com- pany, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 5, issued a complaint and notice of hearing on January 22, 1979, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) 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 Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on September 21, 1978, following a Board election in Case 5 RC 10486, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate:' and that, commencing on or about December 14, 1978, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On January 30, 1979, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint, and sub- mitting an affirmative defense. On March 1, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subsequently, on Official notice is taken of the record in the representation proceeding, Case 5 R 10486, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8. as amended. See LT V Electrosysrten. nc. 166 NLRB 938 (19671. enfd. 388 F.2d 683 (4th Cir 1968); Golden Age Reverage Co. 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intervpe (Co v. Penello, 269 F. Supp. 573 ()D.C Va. 1967); Follerr Corp. 164 NLRB 378 1967). enfd. 397 F 2d 91 (7th Cir. 19681: Sec 9(d) of the NLRA. as amended. March 14, 1979, the Board issues an order transfer- ring 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- dent thereafter filed a response and opposition to the Motion for Summary Judgment and to the Notice To Show Cause. 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 In its answers to the complaint, to the General Counsel's Motion for Summary Judgment, and to the Board's Notice to Show Cause, Respondent admitted that it was served the instant charge: that it meets the Board's jurisdictional standards; that the Union is a labor organization within the meaning of the Act; that on September 21, 1978, the Board certified the Union as the collective-bargaining representative of the employees in the unit set forth herein below; that the Union requested, and is requesting, that it meet and bargain collectively with respect to wages, rates of pay, and other terms and conditions of employ- ment: and that it has refused, and continues to refuse, to meet and bargain in good faith with the Union. Respondent denies that by the acts and conduct al- leged in the complaint it has engaged in, and is engag- ing in, unfair labor practices as defined in Section 8(a)(1) and (5) of the Act, affecting "commerce" as defined in Section 2(6) of the Act. Respondent's affir- mative defenses are that the Board's certification is improper because the unit is inappropriate and it can- not feasibly conduct bargaining with the Union for such unit. The General Counsel contends that since the sole issue raised by Respondent is the validity of the certification in Case 5-RC 10486, and as Respon- dent has not asserted that it wishes to present newly discovered or previously unavailable evidence or that special circumstances exist which require the Board to reexamine the decision in the representation pro- ceeding, Respondent is precluded from litigating in this case any issue which was or could have been raised in the representation proceeding. We agree with the General Counsel. Our review of the record herein, including that in the underlying representation proceeding, Case 5 RC 10486, shows that the election in this matter was held September 8, 1978,2 pursuant to a Decision and Direction of Election issued August 9, and resulted in 2 All dates are 1978, except as otherwise noted. 242 NLRB No. 20 86 DRAPER-KING COLE, INC. a vote of 20 for, and 6 against, the Union. There were no challenged ballots. On September 15, Respondent filed objections to conduct affecting the results of the election. On September 21. the Acting Regional Di- rector issued his Supplemental Decision and Certifi- cation of Representative. Respondent thereafter filed with the Board a request for review of said Supple- mental Decision which was denied by the Board in a telegram dated November 6. It is well settled that in the absence of newly dis- covered 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.' All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly 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 At all times material herein, Respondent, a Dela- ware corporation, engaged in the processing, distribu- tion, and sale of various food products at its Milton. Delaware, location. During the preceding 12 months, a representative period. Respondent sold and shipped, in interstate commerce, goods and products valued in excess of $50,000 to points outside the State of Delaware. We find, on the basis of the foregoing, that Respon- dent 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 Chauffeurs, Warehousemen & Helpers Local Union No. 876, affiliated with the International ISee Pittsburgh Plale Glass Co. v N L.R.B, 313 U.S. 146, 162 (1941): Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c). Brotherhood of Teamsters. Chauffeurs. Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. litE I'NI:AIR I.ABOR PRA('IIC(ES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All over-the-road drivers employed by Respon- dent at its Milton, Delaware, facility; but exclud- ing all other employees, office clerical employees, guards and supervisors as defined in the Act. 2. The certification On September 8, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 5, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on September 21. 1978. and the Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. Te Request To Bargain and Respondent'S Ref.usal Commencing on or about December 7, 1978. and at all times thereafter. the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about December 14, 1978, and continuing at all times thereafter to date. 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 Respondent has, since December 14, 1978. and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate 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. IV. 1HE EFFECT OF tIlE UNFAIR L.ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing 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 mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate 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. 1969), cert. denied 379 U.S. 817 (1964); 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. Draper-King Cole, Inc., and Draper Canning Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Warehousemen & Helpers Local Union No. 876, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All over-the-road drivers employed by Respon- dent at its Milton, Delaware, facility; but excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since September 21, 1978, the above-named la- bor 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 December 14, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( ) 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 Board hereby orders that the Respondent, Draper-King Cole, Inc., and Draper Canning Com- pany, Milton, Delaware, its officers, agents, succes- sors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Chauffeurs, Warehouse- men & Helpers Local Union No. 876, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All over-the-road drivers employed by Respon- dent at its Milton, Delaware, facility; but exclud- ing all other employees, office clerical employees, guards and supervisors as defined in the Act. (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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Milton, Delaware, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Direc- 4 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." 88 DRAPER-KING COLE, INC. tor for Region 5, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Chauffeurs, Warehousemen & Helpers Local Union No. 876, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclu- sive representative of the employees in the bar- gaining 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 de- scribed 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 agreement. The bargaining unit is: All over-the-road drivers employed by us at our Milton, Delaware, facility; but excluding all other employees, clerical employees, guards and supervisors as defined in the Act. DRAPER-KING COLE, INC. AND DRAPER CANNING COMPANY 89