Hook Drugs, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1976

224 N.L.R.B. 612 (N.L.R.B. 1976)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hook Drugs, Inc. and Local No. 725, a/w Retail
Clerks International Association (AFL-CIO) Case
25-CA-7713
June 10, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on February 9, 1976, 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 General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 25, issued a complaint and notice of hearing
on March 2, 1976, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce 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 hear-
ing before 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 October 17, 1975,
following a Board election in Case 25-RC-5963 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 October 23, 1975, and at all times
thereafter, 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 March 12, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint
On March 17, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment Subsequently, on April 1, 1976, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
'Official notice is taken of the record in the representation proceeding
Case 25-RC-5963, 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, as amended
General Counsel's Motion for Summary Judgment
should not be granted 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, the
Board makes the following
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice to Show Cause Respondent admits all factual
averments of the complaint but denies the majority
representation status of the Union Respondent con-
cedes that it refused to bargain with the certified
union in order to test the validity of the certification
in the United States Court of Appeals
A review of the record in the representation pro-
ceeding, Case 25-RC-5963, discloses that in an elec-
tion conducted pursuant to a Stipulation for Certifi-
cation Upon Consent Election the Union won by a
vote of 225 to 138, with 12 challenged ballots which
did not affect the results Respondent, thereafter,
filed timely objections to conduct affecting the re-
sults of the election in which it alleged, in substance,
that the Union, during its preelection campaign, had
represented to employees that they would become
members regardless of the outcome of negotiations
and that employees who did not support the Union
would be discharged, represented to employees that
Respondent's representatives were engaged in ha-
rassment and surveillance, represented that employ-
ees would benefit regardless of the outcome of the
election, misrepresented wage scales of certain of
Respondent's executives, and misrepresented bene-
fits secured from another employer and the number
of elections in which it was successful in the preced-
ing year
After investigation, the Regional Director issued a
report on objections in which he recommended that
the objections be overruled in their entirety and that
the Union be certified The Board, on October 17,
1975, issued a Decision and Certification of Repre-
sentative in which it adopted the Regional Director's
recommendations and certified the Union as exclu-
sive collective-bargaining representative of employ-
ees in the unit herein found appropriate It is thus
clear that Respondent is seeking to relitigate matters
previously raised and determined in the representa-
tion proceeding 2
2 In view of our disposition herein we shall deny the General Counsel s
motion to strike certain portions of Respondents answer
224 NLRB No 86
HOOK DRUGS, INC
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 3
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 a hearing 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,
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
Respondent is an Indiana corporation with its
principal office and place of business at Indianapolis,
Indiana, and which maintains facilities including re-
tail drugstores in various locations in Marion and
Johnson Counties, where it engages in the retail sale
of drugs and related products During the past year
Respondent purchased and received goods and ma-
terials valued in excess of $50,000 which were trans-
ported to its Indiana facilities from outside the State
of Indiana During the same period Respondent sold
products, the gross value of which exceeded
$500,000
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 725, a/w Retail Clerks International As-
sociation (AFL-CIO), is a labor organization within
the meaning of Section 2(5) of the Act
3 See Pittsburgh Plate 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)
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
I The unit
613
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 regular full-time and regular part-time em-
ployees working at the Employer's retail drug
stores located in Marion and Johnson Counties,
Indiana, but excluding all store managers, assis-
tant store managers, intern pharmacists, appren-
tice pharmacists, pharmacists, and all profes-
sional employees, snack bar employees, casual
and/or seasonal employees, confidential em-
ployees, and all guards and supervisors as de-
fined in the Act
2 The certification
On June 27, 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
the collective-bargaining representative of the em-
ployees in said unit on October 17, 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 October 20, 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 October 23, 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 October 23, 1975, 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
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 (CA 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 regular full-time and regular part-time em-
ployees working at the Employer 's retail drug stores
located in Marion and Johnson Counties , Indiana,
but excluding all store managers , assistant store man-
agers, intern pharmacists, apprentice pharmacists,
pharmacists, and all professional employees, snack
bar employees , casual and/or seasonal employees,
confidential employees, and all guards and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act
4 Since October 17, 1975, the above-named labor
organization has been and now is the certified and
exclusive 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 October 23, 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
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Hook Drugs, Inc, Indianapolis, Indiana, 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 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 regular full-time and regular part-time em-
ployees working at the Employer's retail drug-
stores located in Marion and Johnson Counties,
Indiana, but excluding all store managers, assis-
tant store managers, intern pharmacists, appren-
tice pharmacists, pharmacists, and all profes-
sional employees, snack bar employees, casual
and/or seasonal employees, confidential em-
ployees, and all guards and supervisors as de-
fined in the Act
HOOK DRUGS, INC
(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 retail drugstores in Marion and
Johnson Counties, Indiana, copies of the attached
notice marked "Appendix " 4 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 25, after being duly signed by Respondent's rep-
resentative, 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
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
4In 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
615
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 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 regular full-time and regular part-time em-
ployees working at the Employer's retail drug
stores located in Marion and Johnson Coun-
ties, Indiana, but excluding all store manag-
ers, assistant store managers, intern pharma-
cists, apprentice pharmacists, pharmacists,
and all professional employees, snack bar em-
ployees, casual and/or seasonal employees,
confidential employees, and all guards and su-
pervisors as defined in the Act
HOOK DRUGS, INC