King & Stanley

National Labor Relations Board - Board Decisions

Nov 10, 1972

200 N.L.R.B. 230 (N.L.R.B. 1972)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eller Outdoor Advertising Co. of Memphis, d/b/a
King & Stanley and Painters Local Union No. 49,
Brotherhood of Painters and Allied Trades,
AFL-CIO. Case 26-CA-4428
November 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on July 26, 1972, by Painters
Local Union No. 49, Brotherhood of Painters and
Allied Trades, AFL-CIO, herein called the Union,
and duly served on Eller Outdoor Advertising Co. of
Memphis, d/b/a King & Stanley, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 26, issued a complaint on August 3, 1972,
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
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 July 11, 1972,
following a Board election in Case 26-RC-4153 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 2 and that, commenc-
ing on or about July 24, 1972, 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.
Subsequently, the Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 1, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, alleging, inter alia, that the
Respondent's answer to the complaint raises no
factual issues warranting an evidentiary hearing and,
therefore, requests the Board to grant the Motion for
Summary Judgment. Subsequently, on September 14,
1972, 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 granted. Respon-
dent thereafter filed a reply opposing General
Counsel's Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 reply opposing the General Counsel's Motion
for Summary Judgment the Respondent raises
substantially the same matters that it raised in the
underlying representation case, and the affirmative
defenses in its answer to the complaint. The thrust of
the Respondent's contention is that the Union's
certification was improperly issued because it was
denied due process and an evidentiary hearing on
substantial and material issues of fact raised by its
objections to the election. The Respondent presses
the closeness of the election, which was decided by
one vote, and argues that it should have been
afforded the opportunity to cross-examine any
witnesses; question any of the evidence upon which
the Board relied; and to fully develop evidence in
rebuttal thereof. Upon the entire record before us,
including the record in Case 26-RC-4153 we find no
merit in the Respondent's contentions and argu-
ments.
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director,
an election was conducted on March 14, 1972. The
tally of ballots served on the parties at the conclusion
of the election reflected that of approximately 37
eligible voters, 37 cast ballots, of which 19 were for,
and 18 against the Union. The Respondent filed
timely objections to the election. Thereafter, the
Acting Regional Director conducted an investigation
of the objections, and, on April 27, 1972, issued his
Report on Objections in which he recommended that
the objections be overruled in their entirety and that
the Union be certified. On May 4, 1972, the
Respondent filed with the Board timely exceptions to
the Report on Objections. On July 11, 1972, the
Board issued its Decision and Certification of
Representative3 in which it, after having considered
the Acting Regional Director's Report and the
exceptions of the Respondent thereto, concluded that
the Respondent's exceptions raised no material or
substantial issues of fact or law which would require
, The title of "Trial Examiner" was changed to "Administrative Law LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4, 1968);
Judge" effective August 19, 1972. Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269
2 Official notice is taken of the record in the representation proceeding, F.Supp . 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd . 397 F.2d
Case 26-RC-4153, as the term "record" is defined in Secs. 102.68 and 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
102.69 (f) of the Board's Rules and Regulations , Series 8, as amended . See 3 Not reported in the bound volumes of the Board's decisions.
200 NLRB No. 36
KING & STANLEY
a hearing or warrant reversal of the Acting Regional
Director's findings, conclusions, and recommenda-
tions. Accordingly, the Union was certified.
Thus, the Respondent's answer to the complaint
and the affirmative defenses therein, as well as its
reply opposing the General Counsel's Motion for
Summary Judgment which argue that its objections
and exceptions raised substantial and material issues
warranting a hearing, merely reiterate the issues
previously raised and considered in the representa-
tion case.
It is established Board policy, in the absence of
newly discovered or previously unavailable evidence
or special circumstances, not to permit litigation in
an unfair labor practice case of issues which were or
could have been litigated in a prior representation
proceeding.4 It is clear that the Respondent had, and
exercised, the opportunity in the representation
proceeding in Case 26-RC-4153 to raise the issues in
its answer to the complaint and its reply opposing the
General Counsel's Motion for Summary Judgment.
The Respondent alleges no newly discovered or
previously unavailable evidence, and it alludes to no
special circumstances which would require the Board
to reexamine the decision made in the representation
proceeding. As all material issues have been previ-
ously decided by the Board, we find that there are no
matters requiring an evidentiary hearing before an
Administrative Law Judge. Accordingly, the General
Counsel's Motion for Summary Judgment is granted.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times
material herein, a corporation with a place of
business at Memphis, Tennessee, where it is engaged
in the sale of outdoor advertising space. During the
past 12 months, Respondent, in the course and
conduct of its business operations at Memphis,
Tennessee, purchased and received goods and
materials valued in excess of $50,000 directly from
points located outside the State of Tennessee.
We find, on the basis of the foregoing, that
Respondent 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
231
Painters Local Union No. 49 , Brotherhood of
Painters and Allied Trades , 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All employees employed at the Respondent's
Memphis, Tennessee, location, excluding all
salesmen , artists, real estate and leasing person-
nel, photographers, and paint and poster charting,
office clerical employees, guards, and supervisors
as defined in the Act.
2. The certification
On March 14, 1972, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted, pursuant to a Stipulation for Certification
Upon Consent Election, under the supervision of the
Regional Director for Region 26, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on July
11, 1972, 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 July 18, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about July 24, 1972, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since July 24, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
4 See Pittsburgh Plate Glass Co. v N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of the employees in the
appropriate unit, and that , by such refusal , Respon-
dent 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 the Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, 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 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
appropriate unit will be accorded the services of their
selected 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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Eller Outdoor Advertising Co. of Memphis,
d/b/a King & Stanley, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Painters Local Union No. 49, Brotherhood of
Painters and Allied Trades, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All employees employed at the Respondent's
Memphis, Tennessee, location, excluding all sales-
men, artists , real estate and leasing personnel,
photographers, and paint and poster charting, office
clerical employees, 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 July 11, 1972, the above-named labor
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 July 24, 1972, 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 practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain , Respon-
dent has interfered with , restrained , and coerced, and
is interfering with , restraining, and coercing, employ-
ees 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
meaning 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
Relations Board hereby orders that Respondent,
Eller Outdoor Advertising Co. of Memphis, d/b/a
King & Stanley , 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
conditions of employment , with Painters Local
Union, No. 49, Brotherhood of Painters and Allied
Trades, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All employees employed at the Respondent's
Memphis , Tennessee , location , excluding all
salesmen, artists , real estate and leasing person-
nel, photographers and paint and poster charting,
office clerical 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:
KING & STANLEY
(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 Memphis, Tennessee, location copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 26, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Paint-
ers Local Union No. 49, Brotherhood of Painters
and Allied Trades, AFL-CIO, as the exclusive
233
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
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 agree-
ment. The bargaining unit is:
All employees employed at the Respondent's
Memphis, Tennessee, location, excluding all
salesmen, artists, real estate and leasing
personnel, photographers, and paint and
poster charting, office clerical employees,
guards and supervisors as defined in the Act.
ELLER OUTDOOR
ADVERTISING CO. OF
MEMPHIS, D/B/A KING
& STANLEY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Clifford Davis Federal Building,
Room 746, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-31;61.