Handy Hardware Wholesale, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1976

222 N.L.R.B. 373 (N.L.R.B. 1976)

HANDY HARDWARE WHOLESALE, INC.
Handy Hardware Wholesale , Inc. and Teamsters,
General Drivers, Warehousemen and Helpers Local
Union No. 968. Case 23-CA-5396
January 16, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
Upon a charge filed on December 18, 1974, by
Teamsters, General Drivers, Warehousemen and
Helpers Local Union No. 968, herein called, the
Union, and duly served on Handy Hardware Whole-
sale, Inc., herein called the Respondent, the General
Counsel, of the National Labor Relations Board, by
the Acting Regional Director for Region 23, issued a
complaint on December 27, 1974, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(5) and (1)
and 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint,
and notice of hearing before an Administrative Law
Judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on November 13,
1974, following a Board election in Case
23-RC-4098, the Union was duly certified as the ex-
clusive collective-bargaining representative -of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about November
15, 1974, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On January 6, 1975,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On January 20, 1975, counsel for the General
Counsel filed directly with the Board a Motion To
Transfer and Continue Case Before the Board and
for Summary Judgment. On January 30, 1975, Re-
spondent filed an opposition thereto. On February
10, 1975, counsel for the General Counsel filed an
amendment to his Motion, a response to the
'Official notice is taken of the record in the representation proceeding,
Case 23-RC-4098, 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
373
Respondent's opposition, and a motion to strike por-
tions of the Respondent's answer as sham. Subse-
quently, on February 14, 1975, 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 grant-
ed. On February 10, 1975, Respondent filed an oppo-
sition to the General Counsel's February 10, 1975,
amendment, his response to opposition, and his mo-
tion to strike; and on February 20, 1975, it filed an
Application to Stay the Order Transferring the Pro-
ceeding to the Board. On June 12, 1975, the Board
denied Respondent's application to stay. 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,2 the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, its opposition to the
motion for summary judgment, and to the amend-
ment thereto, and in its response to the Notice To
Show Cause, Respondent basically questions the va-
lidity of the underlying representation proceeding
and the resulting certification of the Union because
of its objections to the election and the failure to
hold a hearing thereon, which it now requests. In
addition, the Respondent asserts there are issues as
to the allegations of a request and refusal to bargain
which require a hearing. We find no merit in the
Respondent's contentions.
An examination of the record in Case 23-RC-4098
reveals that an election conducted on July 3, 1974,
pursuant to a Stipulation for Certification Upon
Consent Election, resulted in a vote of 19 for and 1
against the Union, with 13 challenged ballots which
were not sufficient to affect the results of the elec-
tion. Respondent filed timely objections to conduct
affecting the results of the election, alleging, in sub-
stance, that an official notice of election was defaced
to show a preference for the Union, that an employee
was threatened in order to secure her signature on a
union authorization card, and that the Union utilized
the services of one of Respondent's supervisors in its
preelection campaign. After investigation, the Re-
gional Director, on August 30, 1974, issued his Re-
port and Recommendations on Objections to Con-
duct Affecting the Results of the Election in which
he recommended that the objections be overruled in
2 The General Counsel's amendment to his motion to transfer and for
summary judgment is hereby granted.
222 NLRB No. 58
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their entirety and that the Board certify the Union.
Respondent filed timely exceptions to the Regional
Director's report and the Board, on November 13,
1974, issued a Decision and Certification of Repre-
sentative in which it adopted the findings and recom-
mendations of the Regional Director and certified
the Union as exclusive bargaining representative of
employees in the stipulated appropriate unit.
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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues, except as discussed hereinafter, raised
by the Respondent in this proceeding were or could
have been litigated in the prior representation pro-
ceeding, and the Respondent does not offer to ad-
duce at a hearing any newly discovered or previously
unavailable evidence, nor does it allege that any spe-
cial circumstances exist herein which would require
the Board to reexamine the decision made in the rep-
resentation proceeding. We therefore find that the
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding .4
With respect to its contention that it is entitled to a
hearing on its objections, we find it to be without
merit as the Board has held, with judicial approval,
that evidentiary hearings are not required in unfair
labor practice cases where, as here, there are no sub-
stantial or material facts to be determined and in
such cases summary judgment is appropriate.'
The Respondent also contends that its answer al-
leging lack of knowledge of requests to bargain and a
denial of a refusal to bargain raises issues warranting
a hearing. We disagree. In his amended motion,
counsel for the General Counsel has alleged letter
requests for bargaining dated November 15 and De-
cember 5, 1974, and January 16, 1975, supported by
attached Exhibits P, Q, and R, two of which show
service by certified mail. The contents of these letters
have not been controverted by the Respondent and
therefore are deemed to be true, and establish re-
quests to bargain from November 15, 1974. Further,
the allegation of counsel for the General Counsel
that the Respondent had failed to respond to the re-
3 See Pittsburgh Plate Glass Co v. NLRB, 313 U.S. 146, 162 (1941),
Rules and Regulations of the Board , Secs . 102.67(f) and 102.69(c)
4 In addition to its attack upon the validity of the underlying representa-
tion proceedings , the Respondent , in its answer, also denies its status as an
employer engaged in commerce , the Union 's status as a labor organization,
and the appropriateness of the unit These matters were stipulated by the
Respondent and were so found in Case 23-RC-4098 and may not be reliti-
gated herein.
5Janler Plastic Mold Corporation, 191 NLRB 662 (1971), Crest Leather
Manufacturing Corporation, 167 NLRB 1085 (1967), and cases cited therein
quests despite the passage of a reasonable time
stands uncontroverted and is accepted as true, and
establishes the refusal to bargain as of November 15,
1974.6 Accordingly, we shall grant the General
Counsel's 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, a Texas corporation with its princi-
pal office and place of business in Houston, Texas, is
engaged in the wholesale distribution of commercial
hardware. During the past '12 months Respondent
purchased goods and materials valued in excess of
$50,000 from suppliers located outside of the State of
Texas.
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
Teamsters , General Drivers , Warehousemen and
Helpers Local Union No. 968 is a labor organization
within the meaning 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 con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All truckdrivers, production and maintenance
employees, including stockmen, order fillers,
warehouse helpers and porters, but excluding of-
fice clerical employees, sales and commission
employees, watchmen, guards and supervisors as
defined in the Act.
6Jason/Empire, Inc, 212 NLRB 137 (1974). The Respondent also denies,
because of alleged lack of knowledge , the filing and service of the unfair
labor practice charge as alleged in the complaint . Attached to the General
Counsel' s Motion for Summary Judgment as Exhs . A and B are copies of
the charge and the affidavit of service thereof These exhibits stand uncon-
troverted and are deemed to be true, and establish the filing and service of
the charge as alleged.
HANDY HARDWARE WHOLESALE, INC. 375
2. The certification
On July 3, 1974, 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 23, 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 November 13, 1974, and the
Union continues to be such exclusive represenative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about November 15, 1974, 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. Commencing
on or about November 15, 1974, and continuing at
all times thereafter to date, the Respondent has re-
fused, and,continues to refuse, to recognize and bar-
gain with the Union as the exclusive representative
for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since November 15, 1974, 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 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. 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.
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. Handy Hardware Wholesale, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters, General Drivers, Warehousemen
and Helpers Local Union No. 968 is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All truckdrivers, production and maintenance
employees, including stockmen, order fillers, ware-
house helpers and porters, but excluding office cleri-
cal employees, sales and commission employees,
watchmen, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since November 13, 1974, 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 November 15, 1974,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has ,engaged in and is engaging in unfair labor prac-
tices 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 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
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices affecting commerce within the mean- insure that said notices are not altered, defaced, or
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 Re-
lations Board hereby orders that Respondent, Handy
Hardware Wholesale, Inc., Houston, Texas, its offi-
cers, 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 Teamsters, General
Drivers, Warehousemen and Helpers Local Union
No. 968 as the exclusive bargaining representative of
its employees in the following appropriate unit:
All truckdrivers, production and maintenance
employees, including stockmen, order fillers,
warehouse helpers and porters, but excluding of-
fice clerical employees, sales and commssion
employees, watchmen, 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its place of business in Houston, Texas,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 23, after being duly
signed by Respondent's representative, shall be post-
ed 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
covered by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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."
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
Teamsters, General Drivers, Warehousemen
and Helpers Local Union No. 968, 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates 'of pay, wag-
es, 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 truckdrivers, production and mainte-
nance employees, including stockmen, order
fillers, warehouse helpers and porters, but ex-
cluding office clerical employees, sales and
commission employees, watchmen, guards
and supervisors as defined in the Act.
HANDY HARDWARE WHOLESALE, INC.