City Products Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1976

225 N.L.R.B. 244 (N.L.R.B. 1976)

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ben Franklin Division of City Products Corporation
and International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America-UAW. Case 21-CA-14412
June 28, 1976
DECISION AND ORDER'
By MEMBERS FANNING, PENELLO, AND WALTHER
Upon a charge filed on February 23, 1976, by In-
ternational Union, United Automobile, Aerospace
and Agricultural Implement Workers of America-
UAW, herein called the Union, and duly served on
Ben Franklin Division of City Products Corporation,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 21, issued a complaint
and notice of hearing on February 27, 1976, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative 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 February 4, 1976,
following a Board election in Case 21-RC-14270, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 1 and that, commenc-
ing on or about February 16, 1976, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative and to fur-
nish relevant and necessary bargaining information,
although the Union has requested and is requesting it
to do so. On March 2, 1976, Respondent filed its
' On July 15, 1976, counsel for the General Counsel filed with the Board
a Motion for Reconsideration contending that the Board had inadvertently
failed ( I) to make findings of fact or conclusions of law as to allegations of
the complaint concerning Respondent 's refusal to supply certain relevant
and necessary bargaining information requested by the Union and (2) to
specify in its Order that such conduct was violative of Section 8 (a)(1) and
(5) of the Act.
The Board granted the General Counsel's Motion for Reconsideration
and amended its Decision and Order as it appears herein
i Official notice is taken of the record in the representation proceeding,
Case 21-RC-14270, as the term "record" is defined in Secs 102 68 and
102.69(g) of the Board 's Rules and Regulations , Series 8, as amended See
LTV Electrosystems, 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),
Follett Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec
9(d) of the NLRA , as amended
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On April 12, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 21, 1976, the
Board issued an order transferring the proceeding 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 Notice To Show Cause.
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 answer to the complaint and response to the
Notice To Show Cause, Respondent, in substance,
(1) denies the validity of the certification based on its
election objections, (2) contends that the refusal of
the Regional Director to consider or hold a hearing
on a late-filed objection was a denial of due process,
and (3) requests a hearing on its objections, including
the late-filed objection. Counsel for the General
Counsel argues in her Motion for Summary Judg-
ment that Respondent seeks to relitigate issues previ-
ously considered in the representation case and that
there are no factual issues warranting a hearing. We
agree.
Review of the record, including that of the repre-
sentation proceedings in Case 21-RC-14270, shows
that, upon a Stipulation for Certification Upon Con-
sent Election, an election was held on October 2,
1975, which the Union won, 24 to 19, with no chal-
lenged ballots. On October 3, 1975, Respondent filed
timely objections alleging, in substance, threats by
the Union and its employee supporters to the effect
that employees not voting for the Union would be
terminated and that Cuban employees would be dis-
charged if the Union lost. Respondent filed a motion
for a hearing on October 23, 1975, contending that
subpenas were required to fully uncover the cam-
paign of threats because the threats had made certain
employees reluctant to give testimony. By telegram
of October 24, 1975, Respondent stated that an em-
ployee affidavit had disclosed supervisory threats
and requested that this allegation be considered as
constituting part of Respondent's original objections.
On November 5, 1975, the request was denied by the
Regional Director as untimely.
After an investigation, the Regional Director is-
sued his Report on Objections on November 25,
225 NLRB No. 42
BEN FRANKLIN DIV. OF CITY PRODUCTS CORP. 245
1975, in which he denied the hearing request as un-
necessary. He found that only four employees had
been threatened, the threats were not made by union
agents, the alleged supervisory threat was made to
only one employee,2 and, even if the threats had been
more pervasive, Respondent had assured employees
1 week before the election that no employee would
be fired even if the Union won. Under all these cir-
cumstances, the Regional Director concluded that
the alleged threats of discharge made by fellow em-
ployees did not preclude a fair election and accord-
ingly he recommended that the objections be over-
ruled and the Union be certified. Thereafter,
Respondent filed timely objections to the report, reit-
erating its objections and seeking a hearing or a sec-
ond election. Respondent contended that the failure
to grant a hearing was a denial of due process and
that the refusal to consider Respondent's supervisory
threat allegation was an abuse of discretion. On Feb-
ruary 4, 1976, the Board issued its Decision and Cer-
tification of Representative in which it specifically
found that Respondent's exceptions raised no mate-
rial or substantial issues of fact or law warranting
reversal of the Regional Director's findings and rec-
ommendations or requiring a hearing. With regard to
Respondent's late-filed objection, the Board noted
that the supervisory threat had been disclosed during
the Regional Director's investigation but that, in
light of the assurance of employment security made
by Respondent, employees could not reasonably
have relied on any earlier made assertions to the con-
trary by Respondent's supervisor. Accordingly, the
Board adopted the findings and recommendations of
the Regional Director and certified the Union.
Respondent requests a hearing on its objections in
this proceeding. We deny this request. It is well es-
tablished that a party is not entitled to a hearing on
objections absent a showing of substantial and mate-
rial issues.' Here the Board specifically found that
Respondent had failed to make such a showing. Fur-
ther, the Board has held, with judicial approval, that
evidentiary hearings are not required in unfair labor
practice cases and summary judgment is appropriate,
where, as here, there are no substantial or material
facts to be determined." It thus appears that Respon-
dent is attempting to relitigate herein issues raised
and resolved in the underlying representation case.
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
2 This threat was the subject of Respondent's late-filed objection
3 National Beryllia Corporation, 222 NLRB 1289 (1976), and cases cited
therein
4 Handy Hardware Wholesale, Inc, 222 NLRB 373 (1976), and cases cited
therein
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.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.6 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 is a corporation engaged in the sale of
merchandise at wholesale to franchised variety
stores, with a facility located at 3030 South Atlantic
Boulevard, Vernon, California. In the course and
conduct of its business operations, Respondent an-
nually purchases and receives goods valued in excess
of $50,000 directly from suppliers located outside the
State of California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica-UAW, is a labor organization within the mean-
ing of Section 2(5) of the Act.
5 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102 67(1) and 102 69(c)
6 In its answer , Respondent denied the allegations of the complaint with
respect to the Union's request for bargaining and information and
Respondent 's refusal thereto Attached to the Motion for Summary Judg-
ment are a letter from the Union dated February 10, 1975, requesting nego-
tiations and information and a letter of refusal from Respondent dated
February 16, 1976 As Respondent offers nothing to controvert this evi-
dence , we deem the complaint allegations concerning the request and refus-
al to bargain to be admitted to be true and so find Thrift Drug, a Division of
J C Penney Company, Inc, 215 NLRB 259 (1974), and cases cited therein
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All warehouse employees including order fil-
lers, stockmen and stockhelpers, lift operators,
receiving and shipping department employees,
packers, journal clerk, service inspector and
combination order filler/order preparation em-
ployee; excluding computer operator, truckdriv-
ers, office clerical employees and supervisors
and guards as defined in the Act.
2. The certification
On October 2, 1975, 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 21, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on February 4, 1976, 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
Accordingly, we find that the Respondent has,
since February 16, 1976, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit and to furnish relevant and necessary
bargaining information, 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.
Commencing on or about February 10, 1976, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit and to furnish
it with relevant and necessary bargaining informa-
tion concerning the employees in the above-de-
scribed unit, including, but not limited to, the names,
classifications, wage rates, length of employment,
and fringe benefits of said employees. Commencing
on or about February 16, 1976, 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 bargaining of all employees in said unit
and to furnish relevent and necessary bargaining in-
formation.
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 opera-
tions described in section I, 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,
and furnish relevant and necessary bargaining infor-
mation concerning the employees in the appropriate
unit, including, but not limited to, the names, classifi-
cations, wage rates, length of employment, and fringe
benefits of said employees.
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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Ben Franklin Division of City Products Corpo-
ration is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
BEN FRANKLIN DIV. OF CITY PRODUCTS CORP. 247
ica-UAW, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All warehouse employees including order fillers,
stockmen and stockhelpers, lift operators, receiving
and shipping department employees, packers, journal
clerk, service inspector and combination order filler/
order preparation employee; excluding computer op-
erator, truckdrivers, office clerical employees and su-
pervisors and guards as defined in the Act, constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since February 4, 1976, the above-named labor
organization has been and now is the certified and
exclusive 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 February 16, 1976, 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, and to furnish
relevant and necessary bargaining information
concerning said employees, including, but not limit-
ed to, the names, classifications, wage rates, length of
employment, and fringe benefits of employees. Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
of the Act.
5. 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)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce with 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,
Ben Franklin Division of City Products Corporation,
Vernon, California, its officers, 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 con-
ditions of employment with International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America-UAW, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All warehouse employees including order fil-
lers, stockmen and stockhelpers, lift operators,
receiving and shipping department employees,
packers, journal clerk, service inspector and
combination order filler/order preparation em-
ployee; excluding computer operator, truckdriv-
ers, office clerical employees and supervisors
and guards as defined in the Act.
(b) Refusing to furnish relevant and necessary
bargaining information concerning the employees in
the above-described unit, including, but not limited
to, the names, classifications, wage rates, length of
employment, and fringe benefits of said employees.
(c) 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 employees 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, and upon request furnish relevant
and necessary bargaining information concerning the
employees in the aforesaid appropriate unit, includ-
ing, but not limited to, the names, classifications,
wage rates, length of employment, and fringe bene-
fits of said employees.
(b) Post at its Vernon, California, facility copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Di-
rector for Region 21, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by 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 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Tin the event that 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
248 DECISIONS OF 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 collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Ameri-
ca-UAW, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT refuse to furnish the above-
named Union with relevant and necessary bar-
gaining information concerning employees in
the bargaining unit described below, including,
but not limited to, the names, classifications,
wage rates, length of employment, and fringe
benefits of such employees.
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
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect 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
agreement, and upon request furnish the Union
with relevant and necessary bargaining informa-
tion concerning the employees in the bargaining
unit described below, including, but not limited
to, the names, classifications, wage rates, length
of employment, and fringe benefits of such em-
ployees. The bargaining unit is:
All warehouse employees including order
fillers, stockmen and stockhelpers, lift opera-
tors, receiving and shipping department em-
ployees, packers, journal clerk, service inspe"-
tor and combination order filler/order
preparation employee; excluding computer
operator, truckdrivers, office clerical employ-
ees and supervisors and guards as defined in
the Act
BEN FRANKLIN DIVISION OF CITY PRODUCTS
CORPORATION