Draper-King Cole, Inc.

National Labor Relations Board - Board Decisions

May 8, 1979

242 N.L.R.B. 86 (N.L.R.B. 1979)

I)f('ISIONS O NAI'IONAI LABOR RELATIONS BOARD)
Draper-King Cole, Inc. and Draper Canning Compan
and Chauffeurs, Warehousemen & Helpers Local
Union No. 876, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 5 CA 10420
Mav 8, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MIMBLRS PNF.I0
ANt) TRUF}SI)AILE
Upon a charge and amended charge filed on Janu-
ary 3 and 10, 1979, respectively, by Chauffeurs,
Warehousemen & Helpers Local Union No. 876, af-
filiated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served on
Draper-King Cole, Inc., and Draper Canning Com-
pany, herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 5, issued a complaint and
notice of hearing on January 22, 1979, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(I) and Section 2(6) and (7) of the National Labor
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 September 21,
1978, following a Board election in Case 5 RC
10486, 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 December 14, 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 January 30, 1979, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint, and sub-
mitting an affirmative defense.
On March 1, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, with exhibits attached. Subsequently, on
Official notice is taken of the record in the representation proceeding,
Case 5 R 10486, 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
LT V Electrosysrten. nc. 166 NLRB 938 (19671. enfd. 388 F.2d 683 (4th Cir
1968); Golden Age Reverage Co. 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intervpe (Co v. Penello, 269 F. Supp. 573 ()D.C Va. 1967);
Follerr Corp. 164 NLRB 378 1967). enfd. 397 F 2d 91 (7th Cir. 19681: Sec
9(d) of the NLRA. as amended.
March 14, 1979, the Board issues an order transfer-
ring the proceeding to the Board and a Notice to
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response and opposition to the
Motion for Summary Judgment and to the 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 answers to the complaint, to the General
Counsel's Motion for Summary Judgment, and to the
Board's Notice to Show Cause, Respondent admitted
that it was served the instant charge: that it meets the
Board's jurisdictional standards; that the Union is a
labor organization within the meaning of the Act;
that on September 21, 1978, the Board certified the
Union as the collective-bargaining representative of
the employees in the unit set forth herein below; that
the Union requested, and is requesting, that it meet
and bargain collectively with respect to wages, rates
of pay, and other terms and conditions of employ-
ment: and that it has refused, and continues to refuse,
to meet and bargain in good faith with the Union.
Respondent denies that by the acts and conduct al-
leged in the complaint it has engaged in, and is engag-
ing in, unfair labor practices as defined in Section
8(a)(1) and (5) of the Act, affecting "commerce" as
defined in Section 2(6) of the Act. Respondent's affir-
mative defenses are that the Board's certification is
improper because the unit is inappropriate and it can-
not feasibly conduct bargaining with the Union for
such unit. The General Counsel contends that since
the sole issue raised by Respondent is the validity of
the certification in Case 5-RC 10486, and as Respon-
dent has not asserted that it wishes to present newly
discovered or previously unavailable evidence or that
special circumstances exist which require the Board
to reexamine the decision in the representation pro-
ceeding, Respondent is precluded from litigating in
this case any issue which was or could have been
raised in the representation proceeding. We agree
with the General Counsel.
Our review of the record herein, including that in
the underlying representation proceeding, Case 5
RC 10486, shows that the election in this matter was
held September 8, 1978,2 pursuant to a Decision and
Direction of Election issued August 9, and resulted in
2 All dates are 1978, except as otherwise noted.
242 NLRB No. 20
86
DRAPER-KING COLE, INC.
a vote of 20 for, and 6 against, the Union. There were
no challenged ballots. On September 15, Respondent
filed objections to conduct affecting the results of the
election. On September 21. the Acting Regional Di-
rector issued his Supplemental Decision and Certifi-
cation of Representative. Respondent thereafter filed
with the Board a request for review of said Supple-
mental Decision which was denied by the Board in a
telegram dated November 6.
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.'
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 previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we 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 RESPONDENT
At all times material herein, Respondent, a Dela-
ware corporation, engaged in the processing, distribu-
tion, and sale of various food products at its Milton.
Delaware, location. During the preceding 12 months,
a representative period. Respondent sold and
shipped, in interstate commerce, goods and products
valued in excess of $50,000 to points outside the State
of Delaware.
We find, on the basis of the foregoing, that Respon-
dent 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
Chauffeurs, Warehousemen & Helpers Local
Union No. 876, affiliated with the International
ISee Pittsburgh Plale Glass Co. v N L.R.B, 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
Brotherhood of Teamsters. Chauffeurs. Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
III. litE I'NI:AIR I.ABOR PRA('IIC(ES
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 over-the-road drivers employed by Respon-
dent at its Milton, Delaware, facility; but exclud-
ing all other employees, office clerical employees,
guards and supervisors as defined in the Act.
2. The certification
On September 8, 1978, 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 5, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on September 21. 1978. and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. Te Request To Bargain and Respondent'S Ref.usal
Commencing on or about December 7, 1978. and
at all times thereafter. the Union has requested Re-
spondent 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 December 14, 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 collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
December 14, 1978. and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
IV. 1HE EFFECT OF tIlE UNFAIR L.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 (5th
Cir. 1969), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Draper-King Cole, Inc., and Draper Canning
Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Chauffeurs, Warehousemen & Helpers Local
Union No. 876, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All over-the-road drivers employed by Respon-
dent at its Milton, Delaware, facility; but excluding
all other employees, office clerical employees, guards,
and supervisors 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 September 21, 1978, 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 December 14, 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 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 them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)( ) 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 Board hereby orders that the Respondent,
Draper-King Cole, Inc., and Draper Canning Com-
pany, Milton, Delaware, its officers, agents, succes-
sors, 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 Chauffeurs, Warehouse-
men & Helpers Local Union No. 876, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All over-the-road drivers employed by Respon-
dent at its Milton, Delaware, facility; but exclud-
ing all other employees, office clerical employees,
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
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 Milton, Delaware, facility copies of
the attached notice marked "Appendix."4 Copies of
said notice, on forms provided by the Regional Direc-
4 In 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."
88
DRAPER-KING COLE, INC.
tor for Region 5, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 5 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
Chauffeurs, Warehousemen & Helpers Local
Union No. 876, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclu-
sive representative of the employees in the bar-
gaining 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
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
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All over-the-road drivers employed by us at our
Milton, Delaware, facility; but excluding all
other employees, clerical employees, guards and
supervisors as defined in the Act.
DRAPER-KING COLE, INC. AND DRAPER
CANNING COMPANY
89