Cashway Lumber Co.

National Labor Relations Board - Board Decisions

Mar 10, 1972

195 N.L.R.B. 809 (N.L.R.B. 1972)

CASHWAY LUMBER COMPANY 809
Payless Cashways , Inc. d/b/a Cashway Lumber Com-
pany and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Local Union No. 371. Case 38-CA-1287
March 10, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a charge -filed on September 30, 1971, by Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Local Union No.
371, herein called the Union, and duly served on Pay-
less Cashways, Inc. d/b/a Cashway Lumber Company,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Acting
Officer-in-Charge for Subregion 38, issued a complaint
on October 7, 1971, against Respondent, alleging that
Respondent 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, complaint, and notice of hearing before
a Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on August 27, 1971,
following a Board election in Case 38-RC-1002 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about September 27, 1971, and at all times there-
after, Respondent has refused, and continues 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
October 22, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On November 15, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 19,
1971, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter filed a
response to Notre To Show Cause.
' Official notice is taken of the record in the representation proceeding,
Case 38-RC-1002, as the term "record" is defined in Sees . 102 68 and
102 69(f) of the Board 's Rules and Regulations , Series 8, as amended See
LTVElectrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA 4,
1968), Golden Age Beverage Co. 167 NLRB 151, Intertype Co. v Penello,
269 F.Supp 573 (D C Va, 1967); Follett Corp., 164 NLRB 378, enfd. 397
F.2d 91 (C.A 7, 1968); Sec 9(d) of the NLRA.
Pursuant to the provisions of Section 3(b) of the
National Labor 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 opposition to the Motion for Summary Judg-
ment and in its answer to the complaint, Respondent
contends that the Union's certification in Case 38-RC-
1002 is invalid since the Regional Director's Decision
and Direction of Election in that case defined a unit
which is inappropriate for purposes of collective bar-
gaining. We find no merit in this contention.
The record in Case 38-RD-1002 indicates that the
Regional Director for Region. 13 issued a Decision and
Direction of Election on June 22, 1971, in which he
directed an election among certain of Respondent's em-
ployees, i.e., a unit including yardmen, truckdrivers,
and the receiving clerk, excluding all other employees.
On July 6, 1971, Respondent filed a request for review
of the Decision and Direction of Election in which it
argued that the Regional Director erred in directing an
election among only the nonselling employees of Re-
spondent's self-service retail store because Board prece-
dent does not authorize a unit limited to such em-
ployees. In a telegram dated July 23, 1971, the Board
denied Respondent's request for review on the ground
that it raised no substantial issues warranting review.
Thereafter, in a secret ballot election conducted un-
der the supervision of the Regional Director for Region
13, a majority of the employees, by an eight to five vote,
selected the Union as their exclusive bargaining agent.
Respondent filed timely objections to conduct affecting
the results of the election. On August 27, 1971, the
Regional Director issued a Supplemental Decision and
Certification of Representative which overruled Re-
spondent's objections in their entirety and certified the
Union as the bargaining representative in the unit
previously found to be appropriate. Respondent did not
request review of the Supplemental Decision and Cer-
tification of Representative.
It appears that the Respondent, in its answer to the
complaint, denies that the certified unit is appropriate
for collective bargaining and, by this denial, is attempt-
ing to relitigate issues raised and determined in Case
38-RD-1002,
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
195 NLRB No. 144
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues which were or could have been litigated in a prior
representation proceeding.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not
offer to adduce at a hearing any newly discovered 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
the Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
We shall, accordingly, grant the Motion for Summary
Judgment.
On, the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Iowa corporation with an office and
place of business at Davenport, Iowa, is engaged in the
retail sale of hardware, lumber, and related products in
various States of the United States. During the past
year it sold and shipped from its Davenport, Iowa,
facility, goods valued in excess of $50,000 to points
outside the State of Iowa. During the same period it
performed services and sold goods valued in excess of
$500,000.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
ier, cashier-clerk, bookkeeper, salesmen, guards, and
supervisors as defined in the Act.
2. The certification
On July 27, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 13, designated the Union as their represent-
ative for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on August 27, 1971, 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 September 17, 1971, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on or
about September 27, 1971, and continuing at all times
thereafter to date, the Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
September 27, 1971, and at all times thereafter, refused
to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate 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.
IL THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen & Helpers of America, Local
Union No. 371, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time and regular part-time yardmen, truck-
drivers, and the receiving clerk employed at the Em-
ployer's Davenport, Iowa, facility; excluding the cash-
See Pattsbu tgh P l a t e Gl a s s C o . v NLR.B, 313 U S 146,162 (1941),
Rules and Regulations of the Board , Secs. 102 67(f) and 102 69(c)
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed 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 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 meaning
of Section 8(a)(5) and (1) of the Act, we shall order that
it cease and desist therefrom, and, upon request, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
CASHWAY LUMBER COMPANY
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit . See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Payless Cashways, Inc. d/b/a Cashway Lumber
Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen & Helpers of America, Local
Union No . 371, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time yardmen,
truckdrivers , and the receiving clerk employed at the
Employer's Davenport, Iowa, facility; excluding the
cashier , cashier-clerk, bookkeeper , salesmen , guards,
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since August 27, 1971, the above -named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about September 27, 1971, 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 Respond-
ent in the appropriate unit, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8 (a)(5) of the Act.
6. By the aforesaid refusal to bargain , Respondent
has interfered with, restrained, and coerced, and is in-
terfering 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 engag-
ing 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
811
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that Respondent , Payless Cash-
ways, Inc. d/b/a Cashway Lumber Company, 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 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local Union No. 371, as the exclusive bar-
gaining representative of its employees in the following
appropriate unit:
All full-time and regular part -time yardmen, truck-
drivers, and the receiving clerk employed at the Em-
ployer 's Davenport, Iowa , facility; excluding the cash-
ier, cashier-clerk , bookkeeper, salesmen , guards, and
supervisors as defined in the Act.
(b) 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect to rates of pay , wages , hours , and other terms and
conditions of employment, and, if an understanding is
reached , embody such understanding in a signed agree-
ment.
(b) Post at its Davenport, Iowa, facility copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Officer-in-Charge for
Subregion 38, after being duly signed by Respondent's
representative, shall be posted by Respondent immedi-
ately 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Officer-in-Charge for Subregion 38, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event 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 NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX All full-time and regular part-time yard-
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 collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local
Union No. 371, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive, representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
men, truckdrivers , and the receiving clerk
employed at the Employer 's, Davenport,
Iowa, facility; excluding the cashier , cashier-
clerk , bookkeeper', salesmen , guards, and
supervisors as defined in the Act.
PAYLESS CASHWAYS,
INC. D/B/A CASHWAY
LUMBER
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or complaince
with its provisions may be directed to the Board's
Office, Savings Center Tower, 10th Floor, 411 Hamil-
ton Boulevard, Peoria, Illinois 61602, Telephone 309-
673-9283.