Jobbers' Supply, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jobbers' Supply Inc. and Associated Trade and Crafts National Union. Case 8-CA-12277 May 24, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon a charge filed on September 18, 1978, by As- sociated Trade and Crafts National Union, herein called the Union, and duly served on Jobbers' Supply Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 8, issued a complaint and notice of hearing on September 29, 1978, 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 (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and 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 August 15, 1978, following a Board election in Case 8-RC 10745, 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 September 6, 1978, and at all times there- after, Respondent has refused, and continues 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 October 9, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 26, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 2, 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after on February 5, 1979, filed a "Memorandum in Opposition to General Counsel's Motion for Sum- mary Judgment and Respondent's Motion for a Con- tinuance." Pursuant to the provisions )f Section 3(b) of the National Labor Relations Act, as amended, the Na- Official notice is taken of the record in the representation proceeding, Case 8-RC 10745., 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 LTV Electrosystems, Inc., 166 NI.RB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage (o., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969): Interlype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967). Foller! Corp., 164 NLRB 378 (1967). enfd. 397 F2d 91 (7th (ir 1968); Sec. 9(d) of the NLRA, as amended. 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 answer to the complaint and opposition to Motion for Summary Judgment, Respondent admits all operative factual averments of the complaint but denies that the Union is a labor organization within the meaning of the Act2 and denies the appropriate- ness of the unit, the validity of the majority status of the Union, and the propriety of the certification. The General Counsel contends that Respondent is at- tempting to litigate issues which were, or could have been, raised in the underlying representation proceed- ing, and that summary judgment is, therefore, appro- priate. We agree with the General Counsel. An examination of the entire record, including the record in Case 8-RC-10745, discloses that, pursuant to a Stipulation for Certification Upon Consent Elec- tion, an election was conducted on February II1, 1977, among the employees of Respondent in the fol- lowing described unit: All warehouse employees including warehouse clerks, warehouse clericals and truck drivers at the Employer's facility located at 104 East Woodland, Youngstown, Ohio, but excluding all office clerical employees, salesmen, the stock buyer and professional employees, guards and supervisors as defined in the Act. The tally of ballots showed that of approximately 26 eligible voters 25 cast ballots, of which 10 were cast for, and 11 against, the Union, and 4 were chal- lenged. The challenged ballots were sufficient in num- I In its answer to the complaint. Respondent denied that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. The Board has already ruled to the contrary. and that finding is resjudicalu Johhers' Supplv Inc., 236 NLRB 112 (1978). In its opposition to the Motion for Summary Judgment, Respondent claims that it is now entitled to contest this finding because the letter of August 31. 1978. by which the Union requested Respon- dent to bargain, was written on the letterhead of a labor organization other than the certified Union. We find no merit in this contention. In its letter to the Union dated September 6 1978. by which Respondent refused the Union's request for bargaining Respondent stated that its reason for refus- ing to bargain was that the Board's decision to certify the Associated Trades and Crafts National Union was erroneous and that Respondent intended to appeal the Board's decision. Respondent did not base its refusal to bargain on any alleged confusion as to the identily of the certified collective-bargain- ing representative then, and it will not be heard to do so now, Furthermore, inasmuch as the identity of the business representative of the certified Union was well known to Respondent, and since it was the same agent who autho- rized the Union's letter requesting bargaining and who filed the 8(a)(5) charge herein on behalf of the certified Union, it appears that the incorrect letterhead was an inadvertent clerical error and was recognized as such by Respondent at the time that it refused to bargain with the certified Union Respondent's motion for a continuance. pending the outcome of its ap- peal, now before the Circuit (Court of Appeals for the Sixth Circuit. of our decision in Johhers' Supp!h In,, supru, is denied 242 NLRB No. 87 518 JOBBERS' SUPPLY INC. ber to affect the results of the election. On February 18, 1977, the Union filed timely objections to conduct affecting the results of the election. An investigation of the objections and challenges was made. The Union, by a letter dated March 11, 1977, requested withdrawal of the objections. In his Report on Objections and Challenges dated March 22, 1977, the Regional Director recommended that the Union's request to withdraw its objections be ap- proved. On April 14, 1977, the Board granted the Union's request. In the meantime, on February 11, 1977, the Union had filed an unfair labor practice charge in Case 8- CA-10793, alleging that the four individuals whose ballots were challenged, Michael Damiano, Donald Dixon, David Hershey, and James Sass, were dis- charged by Respondent in violation of Section 8(a)(I) and (3) of the Act. The Regional Director issued a complaint in that case on March 25, 1977. Inasmuch as the determination of the voting eligibility of these four individuals depended on the resolution of the issues raised in the unfair labor practice case, the Re- gional Director recommended that the issues raised by the challenges to their ballots be resolved at a hearing before an administrative law judge and that said hearing be consolidated with the hearing to be held in Case 8-CA-10793. On April 14, 1977, the Board adopted these recommendations.3 In his Decision dated November 22, 1977, the Ad- ministrative Law Judge determined, inter alia, that the challenges to two of the four ballots be overruled. Upon the filing of exceptions by the Employer, the Board adopted in part and reversed in part the Ad- ministrative Law Judge's Decision. Jobbers' Supply Inc., 236 NLRB 112 (1978). The Board overruled the challenges to all four ballots, and remanded the rep- resentation proceeding to the Regional Director for the purpose of opening and counting the four ballots and thereafter issuing a revised tally of ballots and the appropriate certification. The revised tally of bal- lots issued thereafter shows that of approximately 26 eligible voters 25 cast ballots, of which 14 were cast for, and 11 against, the Union. There were no unde- termined challenged ballots. On June 13, 1978, Re- spondent filed objections to both the conduct of the election and to conduct affecting the results of the election. The Regional Director investigated the ob- jections and, on June 28, 1978, issued a Supplemental Report on Objections. In it he concluded that Re- spondent's objections did not raise any substantial is- sues of either fact or law with respect to the conduct of the election or conduct affecting the results of the election, that they were without merit, and recom- mended that they be overruled and that a certifica- 3 Not included in the bound volumes of Board Decisions. tion of representative be issued in favor of the Union. On August 15, 1978, the Board issued a Decision and Certification of Representative in which it adopted the Regional Director's findings and recommenda- tions and certified the Union as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate therein.4 By letter dated August 31, 1978, the Union re- quested that Respondent bargain with it concerning rates of pay, wages, hours of employment, and other conditions of employment. By letter dated September 6, 1978, Respondent informed the Union that: I have been asked to respond to your letter of August 31, 1978, addressed to Curtis Noll, Labor Relations Department. As we have previously discussed by telephone, Jobbers Supply has de- cided to appeal the decision of the National La- bor Relations Board certifying the Associated Trades and Crafts National Union as the collec- tive-bargaining representative of the Company's warehouse employees in Youngstown, Ohio. It is the Company's position that the Labor Board's decision is clearly erroneous, and that as a result, your union does not validly represent a majority of the employees in an appropriate unit at the present time. Therefore, the Company will not recognize and/or negotiate with your union at this time. I would also like to direct your attention to the fact that Case No. 8-CA 10793, which was originally consolidated with the above matter and which concerns some of the same issues, is presently pending in the United States Court of Appeals for the Sixth Circuit. It is well settled that in the absence of newlv 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 reliti- gate 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. I Not included in the bound volumes of Board Decisions. 'See Pittsburgh Plate Glass Co \ L..RB. 313 .S 146. 162 1941): Rules and Regulations of the Board, Secs. 102 67(f) and 102 69 1c) 519 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Jobbers' Supply Inc. is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Ohio. At all times material herein, Respondent has maintained a facility in Youngstown, Ohio, the only location involved herein, where it is engaged in the wholesale warehousing and distribution of automo- tive parts. Annually, in the course and conduct of its business operations, Respondent ships goods valued in excess of $50,000 from its facility at Youngstown, Ohio, di- rectly to points located outside the State of Ohio. 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 Associated Trade and Crafts National Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES 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 9b) of the Act: All warehouse employees including warehouse clerks, warehouse clericals, and truckdrivers at the Employer's facility located at 104 East Woodland, Youngstown, Ohio, but excluding all office clerical employees, salesmen, the stock buyer and professional employees, guards and supervisors as defined in the Act. 2. The certification On February 11, 1977, 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 8, 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 August 15, 1978, and the Union contin- ues 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 on or about August 31, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about September 6, 1978, and continuing at all times thereafter to date, Respondent has refused, and con- tinues 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 September 6, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate 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 operations 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 520 JOBBERS' SUPPLY INC. 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. 1964), cert. denied 379 U.S. 817; Burnett Con- struction 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. The Respondent, Jobbers' Supply Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Associated Trade and Crafts National Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees, including warehouse clerks, warehouse clericals, and truckdrivers, at the Employer's facility located at 104 East Woodland, Youngstown, Ohio, but excluding all office clerical employees, salesmen, the stock buyer, and profes- sional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 15, 1978, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 6, 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing 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 Rela- tions Board hereby orders that the Respondent, Job- bers' Supply Inc., Youngstown, Ohio, 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 con- ditions of employment with Associated Trade and Crafts National Union, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All warehouse employees including warehouse clerks, warehouse clericals, and truckdrivers at the Employer's facility located at 104 East Woodland, Youngstown, Ohio, but excluding all office clerical employees, salesmen, the stock buyer, and professional 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 facility located at 104 East Wood- land, Youngstown, Ohio, copies of the attached no- tice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's represent- ative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable 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 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that his 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" 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPI.()OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILI. NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Asso- ciated Trade and Crafts National Union 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 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 warehouse employees including warehouse clerks, warehouse clericals, and truckdrivers at the Employer's facility located at 104 East Woodland, Youngstown, Ohio, but excluding all office clerical employees, salesmen, the stock buyer, and professional employees. guards and supervisors as defined in the Act. JOBBERS' SPPI.Y IN('. 522