Unitog Co.

DECISIONS OF NATIONAL LABOR RELATIONS IOARI) Unitog Company and General Drivers and Warehousemen Local Union No. 534, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica. Case 17-CA-9813 December 8, 1980 DECISION AND ORDER BY MI MBLRS J:NKINS, PNEI O, ANI) TRUI SI)AI.E Upon a charge filed on July 25, 1980, by General Drivers and Warehousemen Local Union No. 534, affiliated with nternational Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Unitog Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint and notice of hearing on August 20, 1980, against Respondent, alleging that Re- spondent 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 administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 2, 1980, following a Board election in Case 17-RC-8885, the Union was duly certified as the exclusive col- lective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about July 17, 1980, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to recognize and to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On August 29, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On September 22, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 25, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- ' Official notice is taken of he record in Ihe representation proceed- ing, Case 17-RC-8885, as the term "record" is defined in Secs. 102.68 and 102 69(g) o the Board's Rules and Regulations, Series 8, as amended See LI'V leciroystems. Inc., 166 NLRB 938 (1967), enfd. 38 F 2d 683 (4th Cir 1968); Golden Age) Beverage Co., 167 NLRB 151 (1967), enfd 415 F 2d 26 (5th Cir 1969). Interrype Co. v. Pencllo, 269 F Supp 573 (D) C.Va 1967); rboleh Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91 (7th Cir 1968) Sec 9(d) of Ihe NLRA, as amended 253 NLRB No. 79 mary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National l.abor 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 answer to the complaint Respondent ad- mitted that the Union was certified as the exclusive bargaining representaive of the employees in the appropriate unit, and that the Union requested it to bargain with respect to rates of pay, wages, hours, and other terms and conditions of employment. Re- spondent also admitted that it has failed and re- fused to recognize and to bargain with the Union as the exclusive bargaining representative of its em- ployees. It denied that the Union was the exclusive representative of the employees in the unit. Re- spondent asserted in its answer to the complaint and in its reply to the Notice To Show Cause that the election in the underlying representation pro- ceeeding was invalid because of the Union's objec- tionable conduct and that a hearing on its objec- tions should have been held. It also asserted that its arguments in support of its defense were presented to the Regional Director during the course of the investigation of the objections, and to the Board in its exceptions to the Regional Director's Report on Objections. Respondent specifically asserts that rel- evant statements from a number of individuals, as well as documentary evidence, were given to the Regional Director during the investigation of the objections but that the Regional Director failed to transmit said evidence to the Board. Review of the record herein, including the record in Case 17-RC-8885, reveals that on De- cember 12, 1979, the Regional Director approved the parties' Stipulation for Certification Upon Con- sent Election in a unit of all full-time and regular part-time clerical employees at Respondent's War- rensburg, Missouri, facility. Subsequently, on Janu- ary 18, 1980, in a secret-ballot election, a majority of the unit employees designated the Union as their collective-bargaining representative. On January 25, 1980, Respondent filed timely objections to the election. Subsequently the Re- gional Director conducted an investigation of these objections. In his Report on Objections the Region- al Director recommended that the objections be overruled in their entirety and that the Union be certified by the Board as the bargaining representa- tive for the unit employees. 614 UNI0(i C()MPANY On March 5, 1980), Respondent filed exceptions to the Regional Director's Report on Objections with argument in support thereof. Respondent argued that the Regional D)irector had failed to consider certain written statements submitted to him by Respondent, and now argues that the Board has never considered that evidence, although it does not now specify such evidence. On July 2, 1980, the Board issued a Decision and Certification of Representative"2 finding in effect that Respond- ent provided no evidence to support its bare asser- tions that such written statements contained any evidence of objectionable conduct and adopting the Regional Director's recommendations and finding that the exceptions raised no material or substantial issues warranting a hearing.: On or about July 9, 1980, the Union by letter requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of its employees in the appropriate unit with respect to their rates of pay, wages, hours of employment, and other terms and conditions of employment. On or about July 17, 1980(), Respondent failed and refused to recog- nize and bargain with the Union. It thus appears that Respondent is attempting in this proceeding to relitigate issues fully litigated and finally deter- mined in the representation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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 proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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. We therefore find that Respondent has not raised any issue which is properly 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: Not reported n volules if Hoard i)eDilins, a Member Periello agreed Ihat the misrepresentation Illeged in Ihe ob- jectiolns did il waarranrit sctllnig asid the lection hbut did so fir the rea- sons set firrlh il Shopping Karl t,,id .firAci In. 228 NlRB 1311 1'77) As noted n his dlssenting opinioin (ieneral Kntil ,r ( ah/lrnia. In. 231 N I.R 619 (1978). Memer Penelli con ,rlnue Iio adhere I, the principles anntounced iii Shopping Aarl 4 See Phurgh P/a, (Giia , L(; R. R. 113 U S 14h It,2 (1)411 Rules and Regulatiols of the Biard, Sete I)2 67() and 12 6hq(c) FINDIN(iS )I FC,,c 1. 'I11. HBUSINI SS (01 RISP'ONI)I.NI Respondent, a State of Missouri corporation, is engaged in the production and distribution of uni- forms at various facilities, including a facility locat- ed at Warrensburg, Missouri, herein called the fa- cility. Respondent, in the course and conduct of its business operations within the State of Missouri, annually purchases goods and services valued in excess of $50,(XX) directly from sources located out- side the State of Missouri. We find, on the basis of the foregoing, that Re- spondent 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. 11. TrH I ABO)R OR(iANIZATION IN\11 't : l) General Drivers and Warehousemen Iocal Union No. 534, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemenl & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 1it. THE UNFAIR AOR PRACTICIES A. 7he Representation Proceeding I. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time clerical em- ployees in the Customer Service and Distribu- tion departments at the Unitog Company's Warrensburg, Missouri, facility, but excluding confidential employees, professional employ- ees, guards and supervisors as defined in the Act. 2. The certification On January 18, 1980, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 17 designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on July 2, 1980, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 61S I)ECISI()NS O)F NATII)NAL LABO()R REI.ATIONS BOARD B. he Request To Bargain and Respondent's Rcefu.sal Commencing on or about July 9, 1980, and at all times thereafter, the Union has requested Respond- ent to recognize it and to bargain collectively with it as the exclusive collective-bargaining representa- tive of all the employees in the above-described unit. Commencing on or about July 17, 1980, and continuing at all times thereafter to date, Respond- ent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that Respondent has, since July 17, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate 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. THE IFFCT[ OF THE UNFAIR LABOR PRACTICFS UPON COMMERCE The activities of Unitog Company 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 ob- structing commerce and the free flow of com- merce. V. TIHI REMEI)Y 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 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: CONCIUSIONS O: LAW I. Unitog Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers and Warehousemen Local Union No. 534, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time clerical em- ployees in the Customer Service and Distribution departments at the Unitog Company's Warrens- burg, Missouri, facility, but excluding confidential employees, professional employees, guards and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 2, 1980 the above-named labor or- ganization has been and now is the certified and ex- clusive 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 July 17, 1980, 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 prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 Re- lations Board hereby orders that the Respondent, Unitog Company, Warrensburg, Missouri, its offi- cers, 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 General Drivers and Warehousemen Local Union No. 534, affiliated UNITOG COMPANY with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time and regular part-time clerical em- ployees in the Customer Service and Distribu- tion departments at the Unitog Company's Warrensburg, Missouri, facility, but excluding confidential employees, professional employ- ees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Warrensburg, Missouri, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 17, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. : Il thc c Cit Ihill this ()rdcr is tCllrirrcd h\ iL Judgmenti I L i lUnilcd Stiatc Cot r of Appca lk Ihe words I the i ll(, Ictidlllg 'o,led h) Order o Ihec Nalltial I ahalr Rlallns oard" hill read "',otcd Puru- anl It( i JllilglTrllt f th tited SI .t (Courtl o Appeal I'itoictig 11 ()rdcorof lIht Nat mi l I ahbo R .lulimlls H trd (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. APPENDIX NOTICIt To EMPI OY[PES PosrTI) BY ORI)DR 01: THL NATIONAl LABOR RlI ATIONS BOARD An Agency of the United States Government WE Wil.I NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with General Drivers and Warehousemen Local Union No. 534, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. Wt: Will NOI in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. Wi. wi , upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of enmployment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time clerical employees in the Customer Service and Dis- tribution departments at the Unitog Compa- ny's Warrensburg, Missouri facility, but ex- cluding confidential employees, professional employees, guards and supervisors as de- fined in the Act. UNITo); COM PANY 617