Eckerd Drugs of Georgia, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1980

248 N.L.R.B. 151 (N.L.R.B. 1980)

ECKERD DRUGS OF GEORGIA, INC. 151
Eckerd Drugs of Georgia, Inc. and Truck Drivers
and Helpers Local Union No. 728. Case 10-
CA-15069
March 5, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on October 1, 1979, by
Truck Drivers and Helpers Local Union No. 728,
herein called the Union, and duly served on
Eckerd Drugs of Georgia, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 10, issued a complaint and notice of
hearing on October 15, 1979, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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
and complaint and notice of hearing before an ad-
ministrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 17,
1979, following a Board election in Case 10-RC-
11797 the Union was duly certified as the exclusive
collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about September 6,
1979, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On October
25, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On November 14, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November
23, 1979, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary 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 proceed-
ing, Case 10-RC-11797, as the term "record" is defined in Sees. 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
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va., 1967); Folletrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
248 NLRB No. 4
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 support of the Motion for Summary Judg-
ment, the General Counsel asserts that Respondent
has admitted its refusal to recognize and bargain
with the Union which has been certified by the
Board, and has only raised issues which it raised or
could have raised in the representation proceeding.
In opposition to the Motion for Summary Judg-
ment, Respondent contends that the unit of over-
the-road drivers found appropriate in the represen-
tation proceeding is not appropriate within the
meaning of the Act. Respondent requests the
Board to review the unit determination, and argues
that the Board's rule against relitigation of repre-
sentation issues in an unfair labor practice case is
not inflexible.
A review of the record herein, including the
record of the representation proceeding, shows
that, following a hearing, the Regional Director
made the unit determination that Respondent con-
tends is inappropriate and considered Respondent's
unit position. Thereafter, Respondent requested
Board review of the Regional Director's decision.
Upon consideration, the Board decided that the re-
quest raised no substantial issues warranting review
and denied the request on August 6, 1979.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, and we do
not see any special circumstances in the case which
would require the Board to reexamine the decision
made in the representation proceeding. We there-
fore find that Respondent has not raised any issue
which is properly litigable in this unfair labor prac-
tice proceeding. Accordingly, we grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
2 See Pittsburgh Plate Gloss Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs 102 67(f) and 102 6
9
(c)
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Georgia corporation with an
office and place of business located at College
Park, Georgia, where it is engaged in the distribu-
tion of drugs, cosmetics, and sundries for its ap-
proximately 150 retail drug store facilities in Geor-
gia, Alabama, Tennessee, and nothern Florida.
During the past calendar year, which is a represen-
tative period, Respondent received gross revenues
in excess of $500,000. During the same period Re-
spondent received goods valued in excess of
$50,000 directly from suppliers located outside the
State of Georgia.
We find, on the basis of the foregoing, that Re-
spondent 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.
11. THE LABOR ORGANIZATION INVOLVED
The Union, Truck Drivers and Helpers Local
Union No. 728, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All over-the-road drivers, employed by the
Respondent at its College Park, Georgia, fa-
cility, but excluding all other employees, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On August 9, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 10, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining represen-
tative of the employees in said unit on August 17,
1979, 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 August 30, 1979, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about September 6, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
September 6, 1979, 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, Respon-
dent 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 Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
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, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
---
ECKERD DRUGS OF GEORGIA, INC. 153
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Eckerd Drugs of Georgia, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Truck Drivers and Helpers Local Union No.
728 is a labor organization within the meaning of
Section 2(5) of the Act.
3. All over-the-road drivers, employed by Re-
spondent at its College Park, Georgia, facility, but
excluding all other employees, office clerical em-
ployees, professional employees, guards and super-
visors 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 August 17, 1979, 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 purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about September 6, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) 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
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Eckerd Drugs of Georgia, Inc., College Park,
Georgia, its officers agents, successors, and assigns,
shall:
i. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Truck Drivers and
Helpers Local Union No. 728 as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All over-the-road drivers, employed by the
Respondent at its College Park, Georgia, fa-
cility, but excluding all other employees, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facility at College Park, Georgia,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 10, 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 notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
:' In the event that this Order is enforced h 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enfiorcing an
Order of the 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 Truck Drivers and Helpers Local Union
No. 728 as the exclusive bargaining representa-
tive of the employees in the bargaining unit
described below.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rightQ 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
described 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 the
Respondent at its College Park, Georgia, fa-
cility, but excluding all other employees,
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
ECKERD DRUGS OF GEORGIA, INC.