Bosart Co.Download PDFNational Labor Relations Board - Board DecisionsJul 14, 1978236 N.L.R.B. 1531 (N.L.R.B. 1978) Copy Citation 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 Copy with citationCopy as parenthetical citation