Bosart Co.

National Labor Relations Board - Board Decisions

Jul 14, 1978

236 N.L.R.B. 1531 (N.L.R.B. 1978)

Bosart Company and Retail, Wholesale and Depart-
ment Store Union, AFL-CIO. Case 9-CA-12154
July 14, 1978
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on February 1, 1978. by Re-
tail, Wholesale and Department Store Union, AFL
CIO, herein called the Union, and duly served on
Bosart Company, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9, issued
a complaint on February 15, 1978, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (I)
and Section 2(6) and (7) of the National Labor Rela-
tions Ace, as amended. Copies of the charge, com-
plaint, and notice of hearing before an Administra-
tive 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 November 25,
1977, following a Board election in Case 9-RC
11903 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate: I and that,
commencing on or about January 17, 1978, and at all
times thereafter, Respondent has refused, and con-
tinues 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 February 24, 1978, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On March 17, 1978, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on March 30, 1978,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
I Official notice is taken of the record in the representation proceeding.
Case 9 RC-11903, as the term "record" is defined in Secs. 102.68 and 102
.
6 9
(g) of the Board's Rules and Regulations, Series 8. as amended. See L7'V
Elecirosystems. Inc., 166 NLRB 938 (1967), enfd 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C Va., 1967):
Follerr Corp.. 164 NLRB 378 (1967). enfd. 397 F 2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
BOSART COMPANY
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 its response to
the Notice To Show Cause. Respondent attacks the
validity of the Union's certification in Case 9-RC-
11903. In essence, Respondent contends that the
Hearing Officer erred by finding that employee
Ward was not an agent of the Union and by failing
to consider the case in light of N.L.R.B. v. Savair
Manufacturing Co., 414 U.S. 270 (1973).
Review of the record herein reveals that in Case 9-
RC-11903 the petition was filed by the Union on
February 11, 1977. Pursuant to the provisions of the
parties' Stipulation for Certification Upon Consent
Election approved by the Regional Director for Re-
gion 9, on March 7, 1977, an election by secret ballot
was conducted on March 25, 1977, in the appropriate
unit. On March 31, 1977, Respondent filed timely
objections to conduct affecting the results of the elec-
tion. On May 17, 1977, the Regional Director issued
an Order Directing Hearing, Notice of Hearing and
Order Transferring Case to the Board. A hearing was
held on May 31, 1977, and on September 7, 1977, the
Hearing Officer issued his report and recommenda-
tions to overrule the Respondent's objections. On
November 25, 1977, the Board issued its Decision
and Certificate of Representative in which it adopted
the Hearing Officer's findings and recommendations.
On January 12, 1978, the Union requested bar-
gaining. Respondent has refused to bargain with the
Union since January 17, 1978.
It is well settled that in the absence of newly 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.2
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 pre-
viously 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 proper-
ly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
:See Pittsburgh Plate (Glass (Co s, .N'L RB., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board. Secs. 102 67(f) and 102.69(c)
236 NLRB No. 195
1531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record, the Board makes
the following:
FINDING;S OF FAC(I
IIt li BLSINLSS OF lF1E RESPONDtEN I
Respondent is. and has been at all times material
herein, an Ohio corporation with a facility in Spring-
field, Ohio, where it is engaged in the wholesale dis-
tribution of cigarettes, tobacco, candy, and related
items. During the past 12 months, a representative
period, Respondent purchased and received goods
and materials valued in excess of $50,000, which
were shipped directly to its Springfield, Ohio, facility
from points outside the State of Ohio.
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 juris-
diction herein.
II. I1F L.ABOR ORGANIZATION INSOLVt ED
Retail. Wholesale and Department Store Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III IHlE UNFAIR I.ABOR PRA( 'Il(tS
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 warehousemen and drivers of the Employer
at its Springfield, Ohio facility, but excluding
salesmen, office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
2. The certification
On March 25, 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 9, 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 November 25, 1977, 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 January 12, 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 em-
ployees in the above-described unit. Commencing on
or about January 17, 1978, 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 representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
January 17, 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. 'I tE FFElC'I OF FHE UNFAIR LABOR PRACTICES UPON
COMMERC E
The activities of Respondent set forth in section
I1, above, occurring in connection with its opera-
tions described in section 1, above, have a close, inti-
mate, 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 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
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); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
1532
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Bosart Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Retail, Wholesale and Department Store
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All warehousemen and drivers of the Employer
at its Springfield, Ohio facility. but excluding sales-
men, office clerical employees, professional emplo\-
ees, guards and supervisors as defined in the Act.
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since November 25, 1977, the above-named la-
bor 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 January 17, 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 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)(l) 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 Re-
lations Board hereby orders that the Respondent,
Bosart Company, Springfield, Ohio, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a)Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Retail, Wholesale and
Department Store Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
BOSART COMPANY
All warehousemen and drivers of the Empnloer-
at its Springfield. Ohio facility. but excluding
salesmen, office clerical emploxees. professional
employees. guards and supervisors as defined in
the Act.
(hb) 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 eiplo):es 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 its Springfield, Ohio, facility copies of
the attached notice marked "Appendix." I Copies of
said notice. on forms provided by the Regional Di-
rector for Region 9. after being duly signed by Re-
spondent's representative. shall be posted by Re-
spondent immediately upon receipt thereof. and be
maintained b, it for 60 consecutive days thereafter,
in conspicuous places. including all places where no-
tices to employees are customarily posted. Reason-
able 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 9. in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
;In the e ent that Ihis Order is enforced hb a Judgment of a U:nited
Stales, ( rurt of Appeals,. the sords in the nrtice reading "Posted hb Order
oif the Nallrllall l.abor Relations Board" shall read "Posted Pursuant to a
Judgment .f the I nited States ( ourt oIf \ppeals Enforcing an Order of the
Natlonal l.hbor Relatnins Barid-"
APPENDIX
Noir(ic- To EX1PI O YEE.S
PoslII) BY ORDER F0 1HII
NAII()NA. LABOR RELATIONS BOARD
An Agency of the United States Government
Wl. I 'ls Nol refuse to bargain collectively
concerning rates of pay, wages, hours. and other
terms and conditions of employment with Re-
tail. Wholesale and Department Store Union.
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
Wit: ll i. Nil in any like or related manner
interfere with, restrain, or coerce our employees
1533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WIL., upon request, bargain with the
above-nanled Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached.
WE WILL embody such understanding in a signed
agreement. The bargaining unit is:
All warehousemen and drivers of the Em-
ployer at its Springfield, Ohio facility, but ex-
cluding salesmen, office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
BOSART COMPANY
1534