Hook Drugs, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1976

222 N.L.R.B. 274 (N.L.R.B. 1976)

274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hook Drugs, Inc. and Local No. 725, a/w Retail
Clerks International Association (AFL-CIO). Case
25-CA-7214-2
January 14, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on July 15, 1975, by Local No.
725, a/w Retail Clerks International Association
(AFL-CIO), herein called the Union, and duly
served on Hook Drugs, Inc., herein called the Re-
spondent, the Acting General Counsel of the Nation-
al Labor Relations Board, by the Regional Director
for Region 25, issued a complaint on August 27,
1975, against Respondent, alleging that Respondent
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 be-
fore an Administrative 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 June 24, 1975, fol-
lowing a Board election in Case 25-RC-5883 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate:' and that, commenc-
ing on or about June 24, 1975, and more particularly
on June 26 and July 11, 1975, and at all times there-
after, 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
September 3, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On October 8, 1975, counsel for the Acting Gener-
al Counsel filed directly with the Board a motion to
strike portions of Respondent's answer and a Motion
for Summary Judgment. On October 15, 1975, the
Respondent filed its answer opposing the Acting
General Counsel's motion to strike and the motion
for Summary Judgment, and its own motion to strike
Official notice is taken of the record in the representation proceeding,
Case 25-RC-5883, 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 (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_
and Motion for Summary Judgment. On October 20,
1975, the Respondent filed a supplemental motion
for hearing. Subsequently, on October 22, 1975, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Act-
ing General Counsel's Motion for Summary Judg-
ment should not be granted. Both the Acting General
Counsel and Respondent thereafter filed responses
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, the
Board makes the following:
Ruling on the Motions for Summary Judgment
In its answer to the complaint, motion to strike,
Motion for Summary Judgment, and supplemental
motion for hearing, and in its response to the Notice
To Show Cause, Respondent in effect admits the un-
derlying representation proceeding in Case
25-RC-5883 but denies the validity of the Union's
representative status, contending that its objections
to the election had been erroneously overruled with-
out a hearing on the material and substantial issues
of fact raised thereby. The Acting General Counsel
contends that Respondent is merely raising issues
which were considered and resolved in the prior rep-
resentation case, and this it may not do. We agree.
Review of the record herein, including the record
in Case 25-RC-5883, reveals that, pursuant to a Stip-
ulation for Certification Upon Consent Election, an
election was conducted on February 21, 1975, which
the Union won. The tally of ballots was 96 for the
Union, 94 against. Respondent filed timely objec-
tions alleging, in substance, that the Union coerced
Respondent's employees and interfered with their
free choice (1) by paying prize money to induce at-
tendance at organizational meetings, (2) by various
misrepresentations, including those concerning the
consequences of electing the Union, the reasons for
union fines, the results of a 1970 election among
Respondent's employees, and that the Union's ef-
forts secured issuance of a complaint against Re-
spondent, and (3) by the last-minute use of the offi-
cial notice of election and ballot in union campaign
material to indicate Board endorsement of the
Union.
After investigation, the Regional Director on April
4, 1975, issued his report in which he recommended
that Respondent's objections be overruled in their
entirety. Respondent filed timely exceptions to the
Regional Director's report, together with a support-
222 NLRB No. 52
HOOK DRUGS
ing brief in which Respondent reiterated its objec-
tions and alternatively requested a hearing if there
were substantial and material issues of fact. The
Board on June 24, 1975, after reviewing the record in
light of Respondent's exceptions and brief and find-
ing that the Respondent's exceptions raised no mate-
rial or substantial issues of fact or law warranting
reversal of the recommendations or requiring a hear-
ing, adopted the Regional Director's findings and
recommendations overruling Respondent's objec-
tions in their entirety and certified the Union. It thus
appears that the Respondent is attempting to raise
issues, including that of a hearing on issues raised by
its objections, which had been raised and resolved in
the prior representation case.
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 raised by the Respondent in this pro-
ceeding were or,could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce, at ahearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any, special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which- is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
deny the Respondent's Motion for Summary Judg-
ment and Supplemental Motion for Hearing and
grant the Acting General Counsel's Motion for Sum-
mary Judgment.'
On the basis of the entire record, the Board makes
the =following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Indiana corporation - with its
2See Pittsburgh Plate Glass Co. v. NL.R.B., 313 U.S- 146, 162 (1941),
Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c)
3 Having granted the Acting General Counsel's Motion for Summary
Judgment, we find it unnecessary to pass upon his motion to- strike portions
of Respondent's answer. The Respondent also filed a motion to strike from
the Acting General Counsel's consolidated motion all reference to other
cases pending between these parties because of their lack of relevancy to the
technical refusal to bargain herein. We note that both parties are in effective
agreement that other pending cases are irrelevant to the resolution of this
case, especially as the Acting General Counsel alleges that his purpose in
mentioning these cases was only to advise the Board of pending cases in
light of the salutory Board policy of avoiding multiple litigation In these
circumstances , and since we have not considered these cases in the resolu-
tion of the instant proceeding, we deny Respondents motion to strike.
275
principal office and place of business at Indianapolis,
Indiana, and various other facilities in the State of
Indiana, including a warehouse at 2800 Enterprise
Street, Indianapolis, Indiana, and is and has been at
all times material herein, engaged at said facilities in
the retail sale and distribution of drugs and related
products. During the past year, a representative peri-
od, the Respondent, in the course and conduct of its
business operations, sold and distributed products,
the gross value of which exceeded $500,000, of which
goods and materials valued in excess of $50,000 were
transported to said facilities directly from States
other than the State of Indiana.
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
Local No. 72-5, a/w Retail Clerks International As-
sociation (AFL-CIO), 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 warehouse employees working at the
Respondent's 2800 Enterprise Street, Indianapo-
lis Indiana, warehouse, including all housekeep-
ers, all porters, all maintenance employees, all
warehouse truckdrivers, and all warehouse cleri-
cal employees; but excluding all food service
employees, all food service vendor drivers, all
food service hostesses,-all office clerical employ-
ees, all guards, and supervisors as defined in the
Act, and all other employees. , -
2. The certification
On February 21, 1975, 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 25, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the collective-bargaining representative of the em-
ployees in said unit on June 24, 1975, 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 June 24, 1975, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about June 24, 1975, 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 June 24, 1975, 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. 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. Hook Drugs, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local No. 725, a/w Retail Clerks International
Association (AFL-CIO), is a labor organization
within the meaning of Section 2(5) of the Act.
3. All warehouse employees working at the
Respondent's 2800 Enterprise Street, Indianapolis,
Indiana, warehouse, including all housekeepers, all
porters, all maintenance employees, all warehouse
truckdrivers, and all warehouse clerical employees;
but excluding all food service employees, all food
service vendor drivers, all food Service hostesses, all
office clerical employees, all guards, and supervisors
as defined in the Act, and all other employees, con-
stitute' a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
4. Since June 24, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about June 24, 1975, 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 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
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
HOOK DRUGS
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Hook
Drugs, Inc., Indianapolis, Indiana, 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 con-
ditions of employment with Local No. 725, a/w Re-
tail Clerks International Association (AFL-CIO), as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All warehouse employees working at the
Respondent's 2800 Enterprise Street, Indianapo-
lis, Indiana, warehouse, including all housekeep-
ers, all porters, all maintenance employees, all
warehouse truckdrivers, and all warehouse cleri-
cal employees; but excluding all food service
employees, all food service vendor drivers, all
food service hostesses, all office clerical employ-
ees, all guards, and supervisors as defined in the
Act, and all other employees.
(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 2800 Enterprise Street, Indianapolis,
Indiana, warehouse copies of the attached notice
marked "Appendix.." a Copies of said notice, on
forms provided by the Regional Director for Region
25, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director for Region 25, in
277
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
° 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 Local
No. 725, a/w Retail Clerks International Associ-
ation (AFL-CIO), as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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
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 warehouse employees working at the
Respondent's 2800 Enterprise Street, India-
napolis, Indiana, warehouse, including all
housekeepers, all porters, all maintenance em-
ployees, all warehouse truckdrivers, and all
warehouse clerical employees; but excluding
all food service employees, all food service
vendor drivers, all food service hostesses, all
office clerical employees, all guards, and su-
pervisors as defined in the Act, and all other
employees.
HOOK DRUGS, INC.