Davis Sales Co.

National Labor Relations Board - Board Decisions

Feb 18, 1972

195 N.L.R.B. 464 (N.L.R.B. 1972)

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis Sales Co. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America , Local Union No. 452 . Case 27-CA-3332
February 18, 1972
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND KENNEDY
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
Upon a charge filed on August 23, 1971, by Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union No.
452, herein called the Union, and duly served on Davis
Sales Co., here in called the Respondent , the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 27, issued a complaint on
Septe nW 14, 1971, which was amended on September
17, 1971, against Respondent , alleging that Respond-
ent 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 June 17, 1971, fol-
lowing a Board election in Case 27-RC-3871 the Un-
ion was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about August 6, 1971, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it to
do so. On September 21, 1971, Respondent filed its
answer to the complaint admitting in part, and denying
in part, the allegations in the complaint.
On November 12, 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 the Notice To Show Cause.
' Official notice is taken of the record in the representation proceeding,
Case 27-RC-3871, as the term "record" is defined in Secs 102 68 and
102.69(1) of the Board 's Rules and Regulations , Series 8, as amended See
LTV Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C A 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 NLRB
195 NLRB No. 85
In its answer to the amended complaint the Re-
spondent denies the appropriateness of the unit and the
Union's status as the exclusive bargaining representa-
tive of the employees in the unit. The Respondent also
questions the validity of the certification of the Union
on grounds that the Regional Director refused to con-
duct a hearing on the Respondent's objections to the
election in the representation proceeding, thereby de-
nying it an opportunity to litigate fully the alleged sub-
stantial issues raised. In his Motion for Summary Judg-
ment, counsel for the General Counsel contends that
the issues raised by the Respondent were fully litigated
during the representation proceeding, or could have
been. As the response to the Notice To Show Cause
only reiterates Respondent's request for a hearing, we
agree with counsel for the General Counsel.
On March 18, 1971, upon a petition filed by the
Union, the Regional Director issued a Decision and
Direction of Election in Case 27-RC-3771 directing a
representation election in the appropriate unit as
found. The Respondent did not seek Board review of
this decision.
On April 14, 1971, the Union received a majority of
the ballots in the election held as directed. The Re-
spondent then filed Objections to Conduct Affecting
the Results of the Election, moving that the election be
set aside because of campaigning unknown to the Re-
spondent by Kathleen Mikelson, an alleged supervisor;
the presence of an alleged Union agent in the polling
area; the conducting of meetings with employees by the
alleged agent within 24 hours of polling; and the prom-
ising by alleged Union agents of decreased dues for
employees voting for the Union and threatening of in-
creased dues for those voting against the Union. On
June 17, 1971, after investigating the Respondent's ob-
jections and supporting affidavits, the Regional Direc-
tor issued a Supplemental Decision on Objections and
Certification of Representative in which he overruled
the Respondent's objections, finding in accordance
with his earlier ruling in the Decision and Direction of
Election that Kathleen Mikelson did not have super-
visory status, and further finding no other evidence of
a union agency relationship in Kathleen Mikelson or
the other alleged agents. Accordingly, he certified the
Union as the exclusive bargaining representative.
DAVIS SALES CO.
The Respondent then filed a request for review with
the Board, alleging as grounds for review the failure of
the Regional Director to order a hearing to resolve
substantial factual issues raised by the objections and
the erroneous certification of the Union which prejudi-
cially affected the rights of the Respondent. On July 27,
1971, the Board denied the Respondent's request for
review as raising no substantial issues warranting re-
view.
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
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
I THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation organized under and
existing by virtue of the laws of the State of Colorado,
is engaged in the sale and distribution of wholesale
phonograph records and maintains its principal office
and place of business at 4555 Kingston, Denver,
Colorado. In the course and conduct of its business
operations, the Respondent annually purchases and re-
ceives goods and materials valued in excess of $50,000
from outside the State of Colorado.
' See Pittsburgh Plate Glass Co v NL RB, 313 U S 146 , 162 (1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
' In its answer the Respondent also denies the Union's request to bargain
and its own refusal Attached to the Motion for Summary Judgment are
Appendix G, a letter of July 30, 1971, from the Union's representative to
Mr William Davis , president of the Respondent, requesting to meet for the
purpose of negotiating a contract , and Appendix H, a letter of August 6,
1971, on behalf of Mr William Davis to the Union's representative in
response to his letter of July 20, 1971, declining to bargain with the Union
Since the Respondent does not seek to deny those letters in its response, the
truth of the factual allegations in the complaint concerning the request and
refusal to bargain stands admitted by the uncontroverted factual averments
in the General Counsel's Motion for Summary Judgment Carl Simpson
Buick, Inc, 161 NLRB 1389 (1966)
465
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.
II THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No. 452 is a labor organization within the mean-
ing 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 warehouse employees employed by Davis
Sales Co., 4555 Kingston, Denver, Colorado, but
excluding all office clerical employees, salesmen,
driver-salesmen, guards, professional employees,
and supervisors as defined in the Act.
2. The certification
On April 14, 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 27 designated the Union as their representa-
tive 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 June 17, 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 July 30, 1971, and at all
times thereafter , the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
August 6 , 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 bargaining of all
employees in said unit.
Accordingly, we find that the Respondent has, since
August 6 , 1971, and at all times thereafter , refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described 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.
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. Davis Sales Co. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No. 452, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All warehouse employees employed by Respond-
ent at its 4555 Kingston, Denver, Colorado, plant, but
excluding office clerical employees , salesmen , driver-
salesmen , and all guards, professional employees, and
supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since June 17, 1971, the above-named labor organ-
ization has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about August 6, 1971, 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, 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
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Davis Sales Co.,
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 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 452, as the exclusive bar-
gaining representative of its employees in the following
appropriate unit:
All warehouse employees employed by Respond-
ent at its 4555 Kingston, Denver, Colorado, plant,
but excluding office clerical employees, salesmen,
driver-salesmen, and all guards, professional em-
ployees, 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.
DAVIS SALES CO 467
(b) Post at its 4555 Kingston, Denver, Colorado,
location copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 27, after being duly
signed by Respondent's representative, 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 no-
tices 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 27, 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 "
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 them by
Section 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:
All warehouse employees employed by Davis
Sales Co. at its 4555 Kingston, Denver,
Colorado, plant, but excluding office clerical
employees, salesmen , driver-salesmen, and all
guards, professional employees, and super-
visors as defined in the Act.
DAVIS SALES CO
(Employer)
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 Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 452, as the exclusive representative of
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, Room 260, New Custom House, 721 19th
Street, Denver, Colorado 80202, Telephone 303-837-
3551.