Jobbers' Supply, Inc.

National Labor Relations Board - Board Decisions

May 24, 1979

242 N.L.R.B. 518 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jobbers' Supply Inc. and Associated Trade and Crafts
National Union. Case 8-CA-12277
May 24, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge filed on September 18, 1978, by As-
sociated Trade and Crafts National Union, herein
called the Union, and duly served on Jobbers' Supply
Inc., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 8, issued a complaint and
notice of hearing on September 29, 1978, 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 adminis-
trative 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 August 15, 1978,
following a Board election in Case 8-RC 10745, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about September 6, 1978, 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
October 9, 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On January 26, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 2,
1979, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after on February 5, 1979, filed a "Memorandum in
Opposition to General Counsel's Motion for Sum-
mary Judgment and Respondent's Motion for a Con-
tinuance."
Pursuant to the provisions )f Section 3(b) of the
National Labor Relations Act, as amended, the Na-
Official notice is taken of the record in the representation proceeding,
Case 8-RC 10745., 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 NI.RB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage (o., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969): Interlype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967).
Foller! Corp., 164 NLRB 378 (1967). enfd. 397 F2d 91 (7th (ir 1968); Sec.
9(d) of the NLRA, as amended.
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 opposition to
Motion for Summary Judgment, Respondent admits
all operative factual averments of the complaint but
denies that the Union is a labor organization within
the meaning of the Act2 and denies the appropriate-
ness of the unit, the validity of the majority status of
the Union, and the propriety of the certification. The
General Counsel contends that Respondent is at-
tempting to litigate issues which were, or could have
been, raised in the underlying representation proceed-
ing, and that summary judgment is, therefore, appro-
priate. We agree with the General Counsel.
An examination of the entire record, including the
record in Case 8-RC-10745, discloses that, pursuant
to a Stipulation for Certification Upon Consent Elec-
tion, an election was conducted on February II1,
1977, among the employees of Respondent in the fol-
lowing described unit:
All warehouse employees including warehouse
clerks, warehouse clericals and truck drivers at
the Employer's facility located at 104 East
Woodland, Youngstown, Ohio, but excluding
all office clerical employees, salesmen, the
stock buyer and professional employees,
guards and supervisors as defined in the Act.
The tally of ballots showed that of approximately
26 eligible voters 25 cast ballots, of which 10 were
cast for, and 11 against, the Union, and 4 were chal-
lenged. The challenged ballots were sufficient in num-
I In its answer to the complaint. Respondent denied that the Union is a
labor organization within the meaning of Sec. 2(5) of the Act. The Board has
already ruled to the contrary. and that finding is resjudicalu Johhers' Supplv
Inc., 236 NLRB 112 (1978). In its opposition to the Motion for Summary
Judgment, Respondent claims that it is now entitled to contest this finding
because the letter of August 31. 1978. by which the Union requested Respon-
dent to bargain, was written on the letterhead of a labor organization other
than the certified Union. We find no merit in this contention. In its letter to
the Union dated September 6 1978. by which Respondent refused the
Union's request for bargaining Respondent stated that its reason for refus-
ing to bargain was that the Board's decision to certify the Associated Trades
and Crafts National Union was erroneous and that Respondent intended to
appeal the Board's decision. Respondent did not base its refusal to bargain
on any alleged confusion as to the identily of the certified collective-bargain-
ing representative then, and it will not be heard to do so now, Furthermore,
inasmuch as the identity of the business representative of the certified Union
was well known to Respondent, and since it was the same agent who autho-
rized the Union's letter requesting bargaining and who filed the 8(a)(5)
charge herein on behalf of the certified Union, it appears that the incorrect
letterhead was an inadvertent clerical error and was recognized as such by
Respondent at the time that it refused to bargain with the certified Union
Respondent's motion for a continuance. pending the outcome of its ap-
peal, now before the Circuit (Court of Appeals for the Sixth Circuit. of our
decision in Johhers' Supp!h In,, supru, is denied
242 NLRB No. 87
518
JOBBERS' SUPPLY INC.
ber to affect the results of the election. On February
18, 1977, the Union filed timely objections to conduct
affecting the results of the election.
An investigation of the objections and challenges
was made. The Union, by a letter dated March 11,
1977, requested withdrawal of the objections. In his
Report on Objections and Challenges dated March
22, 1977, the Regional Director recommended that
the Union's request to withdraw its objections be ap-
proved. On April 14, 1977, the Board granted the
Union's request.
In the meantime, on February 11, 1977, the Union
had filed an unfair labor practice charge in Case 8-
CA-10793, alleging that the four individuals whose
ballots were challenged, Michael Damiano, Donald
Dixon, David Hershey, and James Sass, were dis-
charged by Respondent in violation of Section 8(a)(I)
and (3) of the Act. The Regional Director issued a
complaint in that case on March 25, 1977. Inasmuch
as the determination of the voting eligibility of these
four individuals depended on the resolution of the
issues raised in the unfair labor practice case, the Re-
gional Director recommended that the issues raised
by the challenges to their ballots be resolved at a
hearing before an administrative law judge and that
said hearing be consolidated with the hearing to be
held in Case 8-CA-10793. On April 14, 1977, the
Board adopted these recommendations.3
In his Decision dated November 22, 1977, the Ad-
ministrative Law Judge determined, inter alia, that
the challenges to two of the four ballots be overruled.
Upon the filing of exceptions by the Employer, the
Board adopted in part and reversed in part the Ad-
ministrative Law Judge's Decision. Jobbers' Supply
Inc., 236 NLRB 112 (1978). The Board overruled the
challenges to all four ballots, and remanded the rep-
resentation proceeding to the Regional Director for
the purpose of opening and counting the four ballots
and thereafter issuing a revised tally of ballots and
the appropriate certification. The revised tally of bal-
lots issued thereafter shows that of approximately 26
eligible voters 25 cast ballots, of which 14 were cast
for, and 11 against, the Union. There were no unde-
termined challenged ballots. On June 13, 1978, Re-
spondent filed objections to both the conduct of the
election and to conduct affecting the results of the
election. The Regional Director investigated the ob-
jections and, on June 28, 1978, issued a Supplemental
Report on Objections. In it he concluded that Re-
spondent's objections did not raise any substantial is-
sues of either fact or law with respect to the conduct
of the election or conduct affecting the results of the
election, that they were without merit, and recom-
mended that they be overruled and that a certifica-
3 Not included in the bound volumes of Board Decisions.
tion of representative be issued in favor of the Union.
On August 15, 1978, the Board issued a Decision and
Certification of Representative in which it adopted
the Regional Director's findings and recommenda-
tions and certified the Union as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate therein.4
By letter dated August 31, 1978, the Union re-
quested that Respondent bargain with it concerning
rates of pay, wages, hours of employment, and other
conditions of employment. By letter dated September
6, 1978, Respondent informed the Union that:
I have been asked to respond to your letter of
August 31, 1978, addressed to Curtis Noll, Labor
Relations Department. As we have previously
discussed by telephone, Jobbers Supply has de-
cided to appeal the decision of the National La-
bor Relations Board certifying the Associated
Trades and Crafts National Union as the collec-
tive-bargaining representative of the Company's
warehouse employees in Youngstown, Ohio. It is
the Company's position that the Labor Board's
decision is clearly erroneous, and that as a result,
your union does not validly represent a majority
of the employees in an appropriate unit at the
present time. Therefore, the Company will not
recognize and/or negotiate with your union at
this time.
I would also like to direct your attention to the
fact that Case No. 8-CA 10793, which was
originally consolidated with the above matter
and which concerns some of the same issues, is
presently pending in the United States Court of
Appeals for the Sixth Circuit.
It is well settled that in the absence of newlv 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 Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
I Not included in the bound volumes of Board Decisions.
'See Pittsburgh Plate Glass Co \ L..RB. 313 .S 146. 162 1941):
Rules and Regulations of the Board, Secs. 102 67(f) and 102 6
9
1c)
519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Jobbers' Supply Inc. is now, and has been at all
times material herein, a corporation duly organized
under and existing by virtue of the laws of the State
of Ohio. At all times material herein, Respondent has
maintained a facility in Youngstown, Ohio, the only
location involved herein, where it is engaged in the
wholesale warehousing and distribution of automo-
tive parts.
Annually, in the course and conduct of its business
operations, Respondent ships goods valued in excess
of $50,000 from its facility at Youngstown, Ohio, di-
rectly to points located outside the State of Ohio.
We find, on the basis of the foregoing, that Respon-
dent 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
Associated Trade and Crafts National Union is a
labor organization within the meaning of Section 2(5)
of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9b) of the Act:
All warehouse employees including warehouse
clerks, warehouse clericals, and truckdrivers at
the Employer's facility located at 104 East
Woodland, Youngstown, Ohio, but excluding all
office clerical employees, salesmen, the stock
buyer and professional employees, guards and
supervisors as defined in the Act.
2. The certification
On February 11, 1977, 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 8, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on August 15, 1978, and the Union contin-
ues 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 31, 1978, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about September 6, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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 Respondent has, since
September 6, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent 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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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
520
JOBBERS' SUPPLY INC.
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 Con-
struction 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. The Respondent, Jobbers' Supply Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Associated Trade and Crafts National Union is
a labor organization within the meaning of Section
2(5) of the Act.
3. All warehouse employees, including warehouse
clerks, warehouse clericals, and truckdrivers, at the
Employer's facility located at 104 East Woodland,
Youngstown, Ohio, but excluding all office clerical
employees, salesmen, the stock buyer, and profes-
sional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since August 15, 1978, 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 September 6, 1978, 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 Rela-
tions Board hereby orders that the Respondent, Job-
bers' Supply Inc., Youngstown, Ohio, 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 Associated Trade and
Crafts National Union, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All warehouse employees including warehouse
clerks, warehouse clericals, and truckdrivers at
the Employer's facility located at 104 East
Woodland, Youngstown, Ohio, but excluding all
office clerical employees, salesmen, the stock
buyer, and 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 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its facility located at 104 East Wood-
land, Youngstown, Ohio, copies of the attached no-
tice marked "Appendix."6 Copies of said notice, on
forms provided by the Regional Director for Region
8, after being duly signed by Respondent's represent-
ative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that his 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"
521
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPI.()OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILI. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Asso-
ciated Trade and Crafts National Union 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 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 representa-
tive 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 warehouse employees including warehouse
clerks, warehouse clericals, and truckdrivers at
the Employer's facility located at 104 East
Woodland, Youngstown, Ohio, but excluding
all office clerical employees, salesmen, the
stock buyer, and professional employees.
guards and supervisors as defined in the Act.
JOBBERS' SPPI.Y IN('.
522