Interstate Cigar Co., Inc. and L. S. Amster Co., Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1982

262 N.L.R.B. 782 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interstate Cigar Co., Inc. and L. S. Amster Co., Inc.
and Highway and Local Motor Freight Drivers,
Dockmen and Helpers, Local 707, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 29-
CA-9012
July 9, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on July 10, 1981, by High-
way and Local Motor Freight Drivers, Dockmen
and Helpers, Local 707, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, and
duly served on Interstate Cigar Co., Inc. and L. S.
Amster Co., Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 29,
issued a complaint on July 22, 1981, 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 (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 administrative 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 June 11,
1981,1 following a Board election in Case 29-RC-
4969, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;2 and
that, commencing on or about June 29, 1981, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On July 31, 1981, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On November 24, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment (which was subsequently
amended). Subsequently, on December 4, 1981, the
Official notice is taken of the record in the representation proceed-
ing, Case 29--RC-4969, as the term "record" is defined in Secas. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV E!ectrosysterns 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 Ca v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
256 NI.RB 496.
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a response 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 answer to the complaint, Respondent
admits the operative facts set forth in the complaint
and denies only the conclusionary averments while
affirmatively contending simply that the Union was
not properly certified and thus did not represent a
majority of the employees. Respondent contends
that a new election should be held in order to es-
tablish a majority or lack thejeof.
Review of the record herein, including the
record in Case 29-RC-4969, reveals that an elec-
tion pursuant to a Stipulation for Certification
Upon Consent Election resulted in a vote of 59 to
49 in favor of the Union with 5 ballots challenged.
Respondent, on June 18, 1980, filed an unfair labor
practice charge in Case 29-CB-4210 alleging that
the Union violated Section 8(b)(1)(A) of the Act
by restraining and coercing its employees by phys-
ically preventing ingress to and egress from its fa-
cility, by threatening its employees, and by photo-
graphing its employees who attempted to cross a
picket line at Respondent's facility. Respondent
also filed timely objections to conduct affecting the
results of the election which, inter alia, included
the conduct alleged as unfair labor practices in
Case 29-CB-4210. On August 14, 1980, the Re-
gional Director issued a complaint and notice of
hearing in Case 29-CB-4210. On August 29, 1980,
after investigation of the objections supra, the Re-
gional Director issued his Report on Objections,
Order Consolidating Cases and Notice of Hearing
in Cases 29-RC-4969 and 29-CB-4210 in which he
overruled all of Respondent's objections except
that portion of Objection I which relates to the
blocking of ingress to and egress from Respond-
ent's plant, the writing down of license plate num-
bers of vehicles attempting to cross the picket line,
and the photographing of employees trying to
cross the picket line and threatening employees. He
found that these issues raised substantial and mate-
rial issues of fact, including issues of credibility,
which could best be resolved in a hearing. On
August 29, 1980, the Union filed its answer to the
complaint in Case 29-CB-4210 in which it denied
262 NLRB No. 100
782
INTERSTATE CIGAR CO., INC.
the allegation of unfair labor practices, and, on
September 22, filed its exceptions to the Regional
Director's report. On September 30, the Board
issued its Decision and Order3 in which it adopted
the Regional Director's report and remanded the
case to the Regional Director for the purpose of
conducting a hearing pursuant to his report of
August 29, 1980.
A hearing was held on December 8-10, 1980, in
Cases 29-RC-4969 and 29-CB-4210 before Admin-
istrative Law Judge Raymond P. Green, who
issued his Decision on February 19, 1981, in which
he recommended that the complaint be dismissed in
its entirety, that the involved portion of Objection
1 be overruled, and that the Union be certified as
the exclusive collective-bargaining representative in
the unit stipulated to be appropriate. On January 21
and March 18, 1981, the General Counsel and Re-
spondent, respectively, filed exceptions to the Ad-
ministrative Law Judge's Decision and the Union
filed a brief in support thereof. On June 11, 1981,
the Board issued its Decision, Order, and Certifica-
tion of Representative 4 in Cases 29-RC-4969 and
29-CB-4210 in which it certified the Union as ex-
clusive bargaining agent of the employees in a unit
of all drivers, warehousemen, maintenance men,
porters, and shipping and receiving employees, em-
ployed by the Company at its facilities located at
255 and 275 Grand Boulevard, Westbury, New
York, and 530 John Street, Hicksville, New York,
excluding all salesmen, office clerical employees,
guards and supervisors as defined in the Act. On
July 30, 1981, Respondent filed a petition for elec-
tion in Case 29-RM-654, requesting that an elec-
tion be held in the certified unit. On August 14,
1981, the Regional Director dismissed the petition
and Respondent did not file a request for review of
the Regional Director's dismissal. It thus appears
that Respondent is attempting in this proceeding to
relitigate matters fully litigated and finally deter-
mined in the representation proceeding.
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. 5
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, nor does
it allege that any special circumstances exist herein
s Not reported in volumes of Board Decisions.
· 256 NLRB 496.
* See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly 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
I. THE BUSINESS OF RESPONDENT
Respondent Interstate Cigar Co., Inc. and L. S.
Amster Co., Inc., are New York corporations, and
are affiliated businesses with common officers,
owners, and directors which constitute a single in-
tegrated business enterprise engaged in the sale and
distribution of over-the-counter drugs and related
products. During its past fiscal year, Respondent
sold and shipped from its New York facilities prod-
ucts valued in excess of $50,000 which were
shipped in interstate commerce directly to States
other than the State of New York.
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.
II. THE LABOR ORGANIZATION INVOLVED
Highway and Local Motor Freight Drivers,
Dockmen and Helpers, Local 707, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All drivers, warehousemen, maintenance men,
porters, and shipping and receiving employees
employed by the Respondent at facilities locat-
ed at 255 and 275 Grand Boulevard, West-
bury, New York, and 530 John Street, Hicks-
ville, New York, excluding all salesmen, office
clerical employees, guards and supervisors as
defined in the Act.
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On June 13, 1980, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 29, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on June 11, 1981, 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 18, 1981, 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 June 29, 1981, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
June 29, 1981, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate 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 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Interstate Cigar Co., Inc. and L. S. Amster
Co., Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Highway and Local Motor Freight Drivers,
Dockmen and Helpers, Local 707, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All drivers, warehousemen, maintenance men,
porters, and shipping and receiving employees em-
ployed by Respondent at its facilities located at 255
and 275 Grand Boulevard, Westbury, New York,
and 530 John Street, Hicksville, New York, exclud-
ing all salesmen, 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 June 11, 1981, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about June 29, 1981, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
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, Respond-
ent 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)(1) of the Act.
784
INTERSTATE CIGAR CO., INC.
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,
Interstate Cigar Co., Inc. and L. S. Amster Co.,
Inc., Westbury and Hicksville, New York, 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
conditions of employment with Highway and
Local Motor Freight Drivers, Dockmen and Help-
ers, Local 707, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All drivers, warehousemen, maintenance men,
porters, and shipping and receiving employees
employed by the Employer at facilities located
at 255 and 275 Grand Boulevard, Westbury,
New York, and 530 John Street, Hicksville,
New York, excluding all salesmen, office cleri-
cal employees, guards and supervisors as de-
fined 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 facilities at 255 and 275 Grand
Boulevard, Westbury, New York, and 530 John
Street, Hicksville, New York, copies of the at-
tached notice marked "Appendix."6 Copies of said
6 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 Lahor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor Relations Board."
notice, on forms provided by the Regional Direc-
tor for Region 29, after being duly signed by Re-
spondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Highway and Local Motor Freight Driv-
ers, Dockmen and Helpers, Local 707, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All drivers, warehousemen, maintenance
men, porters, and shipping and receiving
employees employed by us at our facilities
located at 255 and 275 Grand Boulevard,
Westbury, New York, and 530 John Street,
Hicksville, New York, excluding all sales-
men, office clerical employees, guards and
supervisors as defined in the Act.
INTERSTATE CIGAR Co., INC. AND L.
S. AMSTER Co., INC.
785