Loewy Drug Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Loewy Drug Company, Inc. and District No. 12, International Association of Machinists and Aero- space Workers, AFL-CIO. Case 5-CA-8305 May 2, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on December 9, 1976, by District No. 12, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Loewy Drug Company, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint and notice of hearing on January 4, 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 6, 1976, following a Board election in Case 5-RC-9665, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about December 1, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is requesting it to do so. On January 10, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admitted that it met the Board's jurisdictional standards and that the Union is a labor organization within the meaning of the Act. It denied that on October 6, 1976, the Board certified the Union as the collective-bargaining representative of the employees in the unit found appropriate and that on November 17, 1976, the Union requested and is requesting that Respondent bargain collectively with respect to wages, rates of pay, and other terms and conditions of employment. Respondent denied the allegation that it has failed and refused, and continues to fail and refuse, to meet Official notice is taken of the record in the representation proceeding, Case 5-RC-9665, as the terms "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosysterms, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 229 NLRB No. 63 and bargain in good faith with the Union and it further denies the conclusory 8(a)(1) and (5) allega- tions. Respondent alleges that it was wrongfully denied a hearing with respect to substantial and material factual issues raised during the course of postelection proceedings. On January 21, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 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- dent thereafter filed a response to Notice To Show Cause. 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 its response to the Notice To Show Cause, Respondent attacks the Union's certification on the basis of preelection conduct which Respondent alleges improperly influ- enced the results of the election. Respondent con- tends, in its Notice To Show Cause, that a "substan- tial turnover" of employees in the voting unit raises a factual issue which necessitates resolution at a hearing. Review of the record herein reveals that in Case 5- RC-9665 the petition was filed by the Union on April 12, 1976, and on May 11, 1976, the Regional Director approved a Stipulation for Certification Upon Consent Election. On May 18, 1976, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local 570, requested approval to appear on the ballot as an Intervenor. The request was granted, and on May 26, 1976, the Regional Director approved a Stipulation for Certification Upon Consent Election. On June 16, 1976, the Regional Director conducted an election. The tally of ballots showed that, of approximately 89 eligible voters, 43 cast ballots for the Union and 2 cast ballots for the Intervenor. There were 41 valid ballots cast against participating labor organizations. There were two challenged ballots sufficient to affect the results of the election. The Union filed objections to conduct affecting the election results on June 22, 1976, and Respondent 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Interlype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Folleit Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the N LRA, as amended. 408 LOEWY DRUG CO. filed objections to conduct affecting the election results on June 23, 1976. The Regional Director issued his report on objections and challenges on August 2, 1976, recommending that one challenge be sustained and one be overruled and that the objections be overruled. On August 12, 1976, Respondent filed exceptions to the Regional Direc- tor's report, and on October 6, 1976, the Board issued its Decision and Certification of Representative, in which it adopted the Regional Director's findings and recommendations in his report on objections and challenges and certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. Following a request by the Union on or about November 17, 1976, that Respondent bargain collec- tively in good faith with respect to wages, rates of pay, hours, and other terms and conditions of employment, Respondent refused to recognize and bargain in good faith with the Union as the exclusive bargaining representative of its employees in the certified unit. Respondent has refused to bargain with the Union since December 1, 1976. In response to a Motion for Summary Judgment, an adverse party may not rest upon denials in its pleadings but must present specific facts which demonstrate that there are material facts at issue which require a hearing.2 Respondent in the instant case presented no material facts not admitted or previously denied. 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. 3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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.4 We there- fore find that 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: 2 Western Electric Company, 198 NLRB 623 (1972). 3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). 4 Respondent's contention that there exists newly discovered evidence is without merit. All the evidence referred to in Respondent's opposition to the FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Maryland corporation, is engaged in the warehousing and wholesale distribution of drugs, pharmaceuticals, candy, and related products. During the 12 months preceding the issuance of the complaint, a representative period, Respondent purchased and received, in interstate commerce, materials and supplies valued in excess of $50,000 from points located outside the State of Maryland. 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 the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time warehouse employees employed by the Employer at its Baltimore, Maryland, location, including truck- drivers, warehouse order takers, pickers and packers, medical equipment order takers, invento- ry control room employees, order processing room employees, cash and receipt room employ- ees, returned goods room employees, shipping, and receiving employees, warehouse floater-lead employees and leadmen; excluding all office clerical employees, salesmen, buyers, employees employed by Custom Kit Company, guards and supervisors as defined in the Act. 2. The certification On June 16, 1976, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional General Counsel's Motion for Summary Judgment has been raised and duly considered by the Board. Respondent's contention that there is a "factual" issue raised by turnover of unit employees has no basis in law, Postelection turnover among unit employees is no basis for setting aside an election. See Ray Brooks v. N. LRKB., 348 U.S. 96 (1954). 409 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for Region 5, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on October 6, 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 on or about November 17, 1976, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about December 1, 1976, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 1, 1976, and at 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Loewy Drug Company, Inc., 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 commerce 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 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. Loewy Drug Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time warehouse employees employed by the Employer at its Balti- more, Maryland, location, including truckdrivers, warehouse order takers, pickers and packers, medical equipment order takers, inventory control room employees, order processing room employees, cash and receipt room employees, returned goods room employees, shipping and receiving employees, ware- house floater-lead employees and leadmen; exclud- ing all office clerical employees, salesmen, buyers, employees employed by Custom Kit Company, 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 October 6, 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 on or about December 1, 1976, and at all times thereafter, to bargain collectively 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. 410 LOEWY DRUG CO. 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, Loewy Drug Company, Inc., Baltimore, Maryland, 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 District No. 12, International Association of Machinists and Aero- space Workers, AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All full-time and regular part-time warehouse employees employed by the Employer at its Baltimore, Maryland, location, including truck- drivers, warehouse order takers, pickers and packers, medical equipment order takers, invento- ry control room employees, order processing room employees, cash and receipt room employ- ees, returned goods room employees, shipping and receiving employees, warehouse floater-lead employees and leadmen; excluding all office clerical employees, salesmen, buyers, employees employed by Custom Kit Company, 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at 6801 Quad Avenue, Baltimore, Mary- land, copies of the attached notice marked "Appen- dix."5 Copies of said notice, on forms provided by the Regional Director for Region 5, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices 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. I 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 District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO, 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 full-time and regular part-time ware- house employees employed by the Employer at its Baltimore, Maryland, location, includ- ing truckdrivers, warehouse order takers, pickers and packers, medical equipment order takers, inventory control room em- ployees, order processing room employees, cash and receipt room employees, returned goods room employees, shipping and receiv- ing employees, warehouse floater-lead em- ployees and leadmen; excluding all office clerical employees, salesmen, buyers, em- ployees employed by Custom Kit Company, guards and supervisors as defined in the Act. LOEWY DRUG COMPANY, INC. 411