Nathan'S Furniture Store Of Hazleton, Inc.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nathan's Furniture Store of Hazleton, Inc. and Teamsters Local Union No. 401, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Case 4-CA- 15233 28 January 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a charge filed by the Union 5 August 1985, the General Counsel of the National Labor Rela- tions Board issued a complaint 12 September 1985 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 5 July 1985, fol- lowing a Board election in Case 4-RC-15788, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 9 August 1985 the Company has refused to bargain with the Union. On 2 October 1985 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 1 November 1985 the General Counsel filed a Motion for Summary Judgment. On 6 November 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company failed to file a timely response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer admits the complaint's jurisdictional allegations, that the Union was certi- fied as the exclusive representative of the unit, and that it has failed and refused to bargain with the Union. It denies, however, that the unit is appro- priate, that the Union is the exclusive representa- tive for the unit, that the Union requested bargain- ing subsequent to its certification, and that its refus- al to bargain is unlawful. The General Counsel contends that the Company is seeking to relitigate those issues rejected by the Board in the represen- tation proceeding. We agree. 278 NLRB No. 34 The record shows that an election was held 18 January 1985 pursuant to a Stipulated Election Agreement. The tally of ballots was four for and three against the Union, with one challenged ballot. The challenged ballot was determinative of the results of the election. On 19 April 1985, after a hearing concerning the challenge, the hearing offi- cer issued her report recommending that the chal- lenge be sustained on the grounds that James Lu- katch, the individual who cast the ballot, is a super- visor. The Respondent filed exceptions to the hear- ing officer's recommendation, contending, inter alia, that Lukatch is not a supervisor. On 5 July 1985 the Board adopted the hearing officer's rec- ommendation and certified the Union as the exclu- sive representative of the stipulated unit. Subsequently, by certified letters dated 17 and 22 July 1985, the Union requested the Company to meet and negotiate a contract.' Thereafter, by letter dated 9 August 1985, the Company notified the Regional Director that it was refusing to bar- gain with the Union because it believed that the Board's certification was "incorrect" insofar as "the evidence of record amply demonstrates that James Lukatch was not a supervisor within the meaning of the National Labor Relations Act." The General Counsel argues in its Motion for Summary Judgment that, although the Company denies the appropriateness of the unit, the Union's representative status, and the Union's request to bargain, it is clear that the sole point of contention is Lukatch's ballot. Accordingly, the General Counsel argues, summary judgment is appropriate because the Company has not raised any issue which was not considered by the Board in the rep- resentation case. As noted above, the Company failed to file a timely response to the Notice to Show Cause. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special ' Although the Company denies that the Union requested bargaining, the certified mail receipts accompanied by the Union's letters were sub- mitted with the General Counsel's motion NATHAN'S FURNITURE STORE circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore fmd that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Pennsylvania corporation, is en- gaged in the retail sale of furniture and carpet at its facility in West Hazleton, Pennsylvania, where it annually had gross revenues in excess of $500,000 and purchased and received_ - supplies and materials valued in excess of -$50,000- directly from points lo- cated outside the Commonwealth of Pennsylvania. We find that the Company 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 or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 18 January 1985 the Union was certified 5 July 1985 as the collective- bargaining representative of the employees in the following unit: All warehousemen, truck drivers, and furniture finishers employed by the Employer at its West Hazleton, Pennsylvania facility, exclud- ing all other employees, office clericals, sales- persons, clerks, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 17 July 1985 the Union has requested the Company to bargain, and since 9 August 1985 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 9 August 1985 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 269 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.2 To ensure that the employees are accorded the services of their selected bargaining agent, for the period provided by law, we shall construe the ini- tial period of the certification 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, Nathan's Furniture Store of Hazleton, Inc., West Hazleton, Pennsylvania, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local Union No. 401, International, Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive bargaining representa- tive of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All warehousemen, truck drivers, and furniture finishers employed by the Employer at its West Hazleton, Pennsylvania facility, exclud- ing all other employees, office clericals, sales- persons, clerks, guards and supervisors as de- fined in the Act. (b) Post at its facility in West Hazleton, Pennsyl- vania, copies of the attached notice marked "Ap- 2 The General Counsel requests a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States Court of Appeals enforcing this Order Under the, circumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel' s request 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendix."3 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 8 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 Nation- al 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 with the Team- sters Local Union No. 401, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 conditions of employment for our employees in the bargaining unit: All warehousemen, truck drivers, and furniture finishers employed by the Employer at its West Hazleton, Pennsylvania facility, exclud- ing, all other employees, office clericals, sales- persons, clerks, guards and supervisors as de- fined in the Act. NATHAN'S FURNITURE STORE OF HAZLETON, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.