D. W. Newcomers Sons

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 351 (N.L.R.B. 1970)

D. W. NEWCOMERS SONS 351
D. W. Newcomers Sons and Roanoke Services, Inc.
and Local 3022 , Embalmers, Funeral Directors and
Assistants, AFL-CIO Case 17-CA-4375
October 31, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge duly filed on July 22, 1970, and
served on Respondent, D. W. Newcomers Sons and
Roanoke Services, Inc., on the same date, by Local
3022, Embalmers, Funeral Directors and Assistants,
AFL-CIO, the General Counsel for the National
Labor Relations Board, by the Regional Director for
Region 17, issued a complaint on July 31, 1970,
against Respondent, alleging that it 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 served on the Respondent and
Charging Party.
With respect to the unfair labor practices, the
complaint alleges that on or about April 28, 1970,
following a Board election and an investigation of
objections, the Union was certified by the Regional
Director in representation Case 17-RC-6255 as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; i
and that, commencing on or about May 18, 1970, 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,
although the Union has requested and is requesting it
to do so. On August 5, 1970, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
Respondent declines to recognize and bargain with
the Union because it believes that the National Labor
Relations Board's decision to include certain part-
time employees in the bargaining unit was erroneous.
Respondent contends that the Union certification,
based on the results of the election, is invalid.
On August 10, 1970, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment, alleging that there were and are
no factual issues warranting a hearing in this
proceeding since all issues and contentions were duly
considered and passed on by the Regional Director
and the Board in Case 17-RC-6255, and that
therefore the Board should grant his motion for
summary judgment. Subsequently, on August 14,
1970, the Board issued an order transferring the
proceeding to the Board, and on the same date the
Board issued 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
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
Upon the entire record in this proceeding, the Board
makes the following:
Ruling on Motion for Summary Judgment
In its response Respondent contends that the
Regional Director's Decision and Direction of Elec-
tion of January 15, 1970, was erroneous in that it
included temporary, part-time college students in the
collective-bargaining unit. The Respondent further
contends that the National Labor Relations Board
erroneously denied Respondent's request for review
of this decision on February 3, 1970. For these
reasons, the Respondent alleges that the certification
of the Union issued by the Regional Director on April
28, 1970, is invalid; that the charge filed by the Union
on July 22, 1970, was without merit; and that the
subsequent complaint issued on July 31, 1970, is
likewise lacking in factual support or legal justifica-
tion.
These contentions are without merit for the follow-
ing reasons: On November 18, 1969, the Union filed a
petition in Case 17-RC-6255, seeking an election in a
unit of the Respondent's employees. A hearing was
conducted on December 18, 1969, on the issues raised
by the Union's petition. The Respondent appeared
and offered evidence on the issues. Thereafter on
January 15, 1970, the Regional Director for Region 17
issued a Decision and Direction of Election. On
January 28, 1970, Respondent filed its request for
review of the Regional Director's Decision and
Direction of Election. By telegraphic communication
of February 3, 1970, the Board denied the Respon-
dent's request for review on the basis that it raised no
substantial issues warranting review.
It is established Board policy, in the absence of
newly discovered or previously unavailable evidence
or special circumstances, not to permit litigation in an
unfair labor practice case , of issues which were or
' Official notice is taken of the record in the representation proceeding , 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello,
Case 17-RC-6255, as the term "record " is defined in Section 10268 and 269 F Supp 573 (D .C Va., 1967), Follett Corp , et a!, 164 NLRB 378,
102.69(f) of the Board's Rules and Regulations , Series 8 , as amended See enfd 397 F.2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA 4,
186 NLRB No. 55
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have been litigated in a prior representation
proceeding.2
Inasmuch as the Respondent has had in the
representation case the opportunity to litigate the
issues raised in its response to notice to show cause
and as the Respondent does not offer to adduce at a
hearing any newly discovered or previously unavaila-
ble 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 find that the Respon-
dent has not raised any issue which is properly
litigable in this unfair labor practice proceeding. We
shall, therefore, 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
The Respondent is a partnership owning and
operating several funeral homes in the Kansas City,
Missouri, area. In the course and conduct of its
business operations, the Respondent annually has a
gross volume of business in excess of $500,000 and
annually receives products valued in excess of $50,000
which are shipped to it directly from points outside
the State of Missouri.
We find, on the basis of the foregoing, that
Respondent 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.
II. THE LABOR ORGANIZATION INVOLVED
Local 3022, Embalmers , Funeral Directors and
Assistants , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
Kansas City, Missouri, excluding office-clerical em-
ployees, guards, and supervisors who have the
authority to hire and fire.
2. The certification
On February 27, 1970, a majority of the employees
of the Respondent in said unit, in a secret-ballot
election, conducted under the supervision of the
Regional Director for Region 17, selected the Union
as their representative for the purposes of collective
bargaining with the Respondent. On March 4, 1970,
the Respondent filed objections to conduct affecting
the results of election, which objections were subse-
quently overruled in their entirety, and the Union was
certified as the exclusive representative for purposes
of collective bargaining for employees in the appro-
priate unit on April 28, 1970.
B. The Request To Bargain and the
Respondent's Refusal
Commencing on or about May 4, 1970, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about May 18, 1970, and continuing at all times
thereafter to date, the Respondent admittedly 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.
We find that the Union was duly certified as the
collective-bargaining representative of the employees
of the Respondent in the appropriate unit described
above, and that the Union at all times since April 28,
1970, has been and now is the exclusive bargaining
representative of all the employees in the aforesaid
unit within the meaning of Section 9(a) of the Act. We
further find that the Respondent has, since May 18,
1970, refused to bargain collectively with the Union as
the exclusive bargaining representative of its employ-
ees in the appropriate unit, and that by such refusal,
the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
The following employees of the Respondent consti-
tute a unit appropriate for collective bargaining
within the meaning of the Act:
All employees of the Company employed at three
locations, namely, 1331 Brush Creek and 3235
Gillham Plaza, Kansas City, Missouri (Stine &
McClure Funeral Home), and 832 Armour, North
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to
2 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c).
D. W. NEWCOMERS SONS
labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged 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 represent-
ative of all employees in the appropriate unit and, if
an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the
appropriate 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 beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed 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
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. D. W. Newcomers Sons and Roanoke Services,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 3022, Embalmers, Funeral Directors and
Assistants, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All employees of the Company employed at
three locations, namely, 1331 Brush Creek and 3235
Gillham Plaza, Kansas City, Missouri (Stine &
McClure Funeral Home), and 832 Armour, North
Kansas City, Missouri, excluding office-clerical em-
ployees, guards, and supervisors who have the
authority to hire and fire constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since April 28, 1970, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about May 18, 1970, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
3 In the event that the Board's 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,
353
bargaining representative of all the employees of
Respondent 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
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby engaged 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 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
Relations Board hereby orders that Respondent, D.
W. Newcomers Sons and Roanoke Services, Inc., 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 conditions
of employment with Local 3022, Embalmers, Funeral
Directors and Assistants, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All employees of the Company employed at three
locations, namely, 1331 Brush Creek and 3235
Gillham Plaza, Kansas City, Missouri (Stine &
McClure Funeral Home), and 832 Armour, North
Kansas City, Missouri, excluding office clerical
employees, guards and supervisors who have the
authority to hire and fire.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Kansas City and North Kansas City,
Missouri, funeral homes, copies of the attached notice
marked "Appendix."3 Copies of said notice, on forms
provided by the Regional Director for Region 17,
after being duly signed by Respondent's representa-
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees as
exclusive collective-bargaining representative, or
in any like or related manner interfere with
employee efforts at self-organization or bargain-
ing.
WE WILL bargain collectively with the Union as
exclusive collective-bargaining representative of
the employees in the appropriate unit, and, if an
understanding is reached, we will sign a contract
with the Union.
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 with
Local 3022, Embalmers, Funeral Directors and
Assistants, AFL-CIO, as the exclusive collective-
bargaining representative of all our following
employees:
All employees of the Company employed at
three locations, namely, 1331 Brush Creek
and 3235 Gillham Plaza, Kansas City, Mis-
souri (Stine & McClure Funeral Home), and
832 Armour, North Kansas City, Missouri,
excluding office-clerical employees, guards,
and supervisors who have the authority to
hire and fire.
D. W. NEWCOMERS SONS
AND ROANOKE SERVICES,
INC.
(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 compliance
with its provisions, may be directed to the Board's
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone
816-374-5181.