St. George Warehouse

333 NLRB No. 113 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. St. George Warehouse, Inc. and Merchandise Drivers Local No. 641, International Brotherhood of Teamsters. Case 22–CA–24362 April 10, 2001 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND WALSH Pursuant to a charge filed on January 12, 2001, the Acting General Counsel of the National Labor Relations Board issued a complaint on January 30, 2001, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Un- ion’s request to bargain following the Union’s certifica- tion in Case 22–RC–11703.1 (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 deny- ing in part the allegations in the complaint. On February 26, 2001, the Acting General Counsel filed a Motion for Summary Judgment. On February 28, 2001, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response and the Acting General Counsel filed a reply. 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 admits its refusal to bar- gain, but attacks the validity of the certification because the Board’s decision in 331 NLRB No. 55 (2000) is, as noted supra, currently pending in the United States Court of Appeals for the Third Circuit on the Respondent’s Petition for Review and the Board’s Cross Application for Enforcement.2 In that proceeding, the Respondent is challenging the Board’s finding that employees Sides and Tharp, whose ballots were determinative, were dis- charged in violation of Section 8(a)(3). 1 The challenged ballot issues in the underlying representation case were consolidated with certain unfair labor practice cases as reported at 331 NLRB No. 55 (2000). The unfair labor practice cases are currently pending before the United States Court of Appeals for the Third Cir- cuit. 2 The Respondent’s answer also raised two affirmative defenses which centered on the Respondent’s contention that the employer of “supplier employees” is not part of the unit. In its response, however, the Respondent has withdrawn these defenses in view of the Acting General Counsel’s acknowledgement in his Motion for Summary Judgment that “temporary agency employees” (who are excluded from the unit) and “supplied employees” are the same. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I JURISDICTION At all times material, the Respondent, a corporation with an office and a place of business in Kearny, New Jersey, has been engaged in the warehousing of com- modities. During the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its business operations described above, performed warehousing services valued in excess of $50,000 in States other than the State of 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 RACTICES A. The Certification Following the election held April 16, 1999, the Union was certified on October 27, 2000, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time warehouse em- ployees employed by the Respondent at its South Kearny, New Jersey facility, but excluding all temp o- rary agency employees, office clerical employees, professional employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since December 19, 2000, the Union, by letter, has re- quested the Respondent to bargain, and, since December 19, 2000, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 CONCLUSION OF LAW By refusing on and after December 19, 2000, to bar- gain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting 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 Section 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 understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent 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, St. George Warehouse, Inc., Kearny, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Merchandise Drivers Lo- cal No. 641, International Brotherhood of Teamsters, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, 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 employment, and if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time warehouse employ- ees employed by the Respondent at its South Kearny, New Jersey facility, but excluding all temporary agency employees, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Kearny, New Jersey, copies of the attached notice marked “Appendix.”3 Copies of the notice, on 3 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 Na- forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 19, 2000. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. April 10, 2001 John C. Truesdale, Chairman Wilma B. Liebman, Member Dennis P. Walsh, 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Merchandise Drivers Local No. 641, International Brotherhood of Teamsters, as the exclusive representative of the employ- ees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exe rcise 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 tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ST. GEORGE, WAREHOUSE, INC. 3 conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time warehouse employ- ees employed by us at our South Kearny, New Jersey facility, but excluding all temporary agency employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. ST. GEORGE WAREHOUSE, INC.