King Wholesale

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 76 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
King Wholesale, Inc. and International Longshore-
men's Association, AFL-CIO. Case 5-CA-
15978
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 28 November
1983, the General Counsel of the National Labor
Relations Board issued a complaint 5 December
1983 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 2 August 1983,
following a Board election in Case 5-RC-11576,
the Union was certified as the exclusive collective-
bargaining representative of the Company's em-
ployees in the unit found appropriate. (Official
notice is taken of the "record" in the representation
proceeding as defined in the Board's Rules and
Regulations, Secs. 102.68 and 102.69(g), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 23 August 1983 and 16 No-
vember 1983 the Company has refused to furnish
the Union with certain information necessary to the
Union's performance as bargaining representative,
and, since 16 November 1983, the Company has re-
fused to bargain with the Union although the
Union has requested and is requesting it to do so.
On 15 December 1983 the Company filed its
answer to the complaint and on 23 December 1983
filed an amended answer admitting in part and de-
nying in part the allegations in the complaint.
On 3 January 1984 the General Counsel filed a
Motion for Summary Judgment, with exhibits at-
tached. The Company filed a response to the
motion. On 11 January 1984 the Board issued an
order transferring the proceeding to the Board and
a Notice to Show Cause why the motion should
not be granted. The Company then filed an amend-
ed response and cross-motion for summary judg-
ment and/or hearing. The General Counsel filed a
response to the Company's cross-motion. The
Union also filed a separate response to the Compa-
ny's cross-motion.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on the General Counsel's Motion for
Summary Judgment and the Company's Cross-
Motion for Summary Judgment and/or
Hearing
The Company's amended answer admits its re-
fusal to bargain but attacks the validity of the
Union's certification on the basis of its Objections 1
and 2 to the election in the representation proceed-
ing. Inter alia, it claims the Board erred in overrul-
ing its Objection 2 after a hearing and that it erred
in overruling its Objection I without a hearing
have been held. In its amended response, it further
claims that certain recent Board and court deci-
sions necessitate a hearing on that objection. It also
argues that the Board should have considered an
affidavit of a labor consultant to the Company
which the Company had submitted in its exceptions
to the Acting Regional Director's report. The
Company further asserts a defense that, after the
election, the employees directed a letter to the
Board stating that they did not wish to be repre-
sented by the Union and that, therefore, it is ques-
tionable whether representation by the Union re-
flects the choice of the Company's current employ-
ees. The General Counsel argues that all material
issues have been previously decided. We agree
with the General Counsel.
The record, including the record in Case 5-RC-
11576, reveals that an election was held 10 Septem-
ber 1981 pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows that, of approxi-
mately 18 eligible voters, 12 cast valid ballots for
and 6 cast ballots against the Union; there were no
challenged ballots. On 17 September 1981 the
Company filed objections that (1) the Union threat-
ened illegal secondary activity during a strike to
put the Company out of business and indicated it
could take economic reprisals against employees
who did not support the Union and/or a strike; and
(2) that a union representative promised at a meet-
ing to waive initiation fees but only for those em-
ployees who signed authorization cards at that
meeting.
On 4 November 1981 the Acting Regional Di-
rector issued a Report on Objections recommend-
ing that the Company's first objection be overruled
and that the Company's second objection be set for
hearing. Regarding the first objection, the Acting
Regional Director found that, if the version of
facts submitted by the Company were accepted as
accurate, nonetheless those facts did not establish
that the Union was threatening illegal secondary
activity as alleged. The Company filed exceptions
to the report. On 20 April 1982 the Board issued its
Decision and Order Directing Hearing (not report-
270 NLRB No. 6
76
KING WHOLESALE
ed in Board volumes) recommended by the Acting
Regional Director on Objection 2 but it overruled
Objection 1. Further, the Board refused to consider
the affidavit and its attachment which the Compa-
ny had appended to its exceptions regarding Objec-
tion I because the Company had not served a copy
of the affidavit on the Union and therefore had not
complied with Section 102.69(c) of the Board's
Rules and Regulations.
Thereafter, the Company filed with the Board a
motion for reconsideration regarding the exclusion
of the affidavit and, on 10 May 1982, the Board
denied the motion. Thereafter, a hearing was held
on Objection 2 and, on 14 June 1982, the hearing
officer issued his report recommending that the ob-
jection be overruled and that a Certification of
Representative be issued. The Company then filed
exceptions to this report and the Union filed a brief
in opposition. On 30 September 1982 the Board
issued a Supplemental Decision, Order and Direc-
tion of Second Election in which it rejected the
hearing officer's recommendation and instead sus-
tained the objection, and directed a second elec-
tion.' The Union then filed a motion for reconsid-
eration and the Company filed a brief in opposi-
tion. On 2 August 1983 the Board issued its Deci-
sion on Reconsideration, Order, and Certification
of Representative in which it granted the motion
for reconsideration; overruled the objection; and
certified the Union as the collective-bargaining rep-
resentative for the unit involved. 2 Subsequently,
the Company filed a "Motion for Reconsideration
En Banc" and requested oral argument. The Union
filed a letter in opposition. The Board denied the
motion on 27 October 1983.
By letters dated 11 August and 3 November
1983 the Union requested the Company to bargain
about terms and conditions of employment and to
furnish certain information to it. The information
sought was an updated list of the names and ad-
dresses of employees in the unit. By letter dated 16
November 1983 the Company acknowledged re-
ceipt of the bargaining demand and stated that "we
reject your demand and deny your request to bar-
gain." Regarding the request for the employee list,
the Company indicated that it would supply that
list only if the Union would use it to verify that, on
4 February 1982, the Company had received a
264 NLRB No. 118 (Sept. 30. 1982) [vacated by 266 NLRB 1163
(1983)].
266 NLRB 1163. The Board concluded that, read in context, the al-
leged unlawful statements by a union representative did not violate the
rule announced by the Supreme Court in NLRB v. Sawair Mfg. Co., 414
U.S. 270 (1973).
letter from its employees saying they no longer
wanted the Union as their representative.s
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or
special circumstances, a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Ca v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. Further, there are no factual issues re-
garding the Union's request for information be-
cause the Company's letter on 23 August 1983 did
not supply this information and by its letter of 16
November 1983 the Company admitted that it re-
fused to furnish the information insofar as the
Union's request was for the purpose of commenc-
ing negotiations. We therefore find that the Com-
pany has not raised any issue that is properly litiga-
ble in this unfair labor practice proceeding.4 Ac-
a In its answer to the complaint, the Company denied the allegations
concerning the Union's aending of the August and November 1983 letters
and the Company's responses to them. But the Company has not disputed
the authenticity of the various letters appended to the General Counsel's
Motion for Summary Judgment which detail the Union's various requests
to bargain and the Company's refusals. Moreover, in its amended answer,
the Company admits it has refused the Union's request to bargain in
order to test the certification.
' As noted regarding Objection 1, the Company again urges the Board
to consider an affidavit of a company representative submitted with the
exceptions it filed to the Acting Regional Director's report. That affida-
vit is accompanied by another, unsigned and undated, affidavit allegedly
of an employee who heard the union representatives make objectionable
statements relating to Objection 1. We note that, although the Company's
representative allegedly obtained the information averred in the affidavit
on 16 September 1981 (which was prior to the issuance of the Acting
Regional Director's report), it was not until after the Acting Regional
Director's report issued that the Company prepared and submitted the
company representative's document to the Board. Thus, the affidavit
could not have been considered because neither it bor the employee
statement was timely submitted to the Regional Director for due consid-
eration. Frontier Hotel. supra. Further, in its Decision and Order Direct-
ing Hearing, the Board refused to consider the affidavit inasmuch as the
Company refused to serve a copy on the Union in contravention of Sec.
102.69(c) of the Board's Rules and Regulations. We reaffirm that ruling.
The Company's reliance on certain recent Board and court decisions as
dictating the need for a hearing on Objection I (see, e.g., Home & Indus-
trial Disposal Service, 266 NLRB 100 (1983); Holladay Corp., 266 NLRB
621 (1983); and NLRB v T7plex Mfg. Co., 701 F.2d 703 (7th Cir. 1983))
is misplaced. In Home & Industrial Service, the Board was concerned with
union threats of unlawful activity to be taken during a strike. Here, as the
Acting Regional Director noted, the evidence viewed in the light most
favorable to the Employer showed no threat of unlawful activity. Thus,
there was no need for a hearing. In Holladay Corp., the Board reversed
the regional director who had conducted no investigation despite formal-
ly being presented with a specific hearsay affidavit. Here, the Company's
Continued
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly we grant the General Counsel's Motion
for Summary Judgment and deny the Company's
Cross-Motion for Summary Judgment and/or
Hearing.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company, a Virginia corporation, is en-
gaged in the wholesale warehousing and distribu-
tion of beer and related products at its facility in
Chantilly, Virginia, where in the year preceding is-
suance of the complaint it had gross revenues in
excess of $500,000 and purchased goods and prod-
ucts valued over $50,000 directly from outside the
State. We find that the Company is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 10 September 1981
the Union was certified 2 August 1983 as the col-
lective-bargaining representative of the employees
in the following appropriate unit:
All full-time and regular part-time driver-sales-
men employed by the Company at its Chantil-
ly, Virginia facility, but excluding all other
employees, warehousemen, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
On 11 August 1983 and 3 November 1983 the
Union requested the Company to bargain and to
supply it with information relevant to its collective-
bargaining responsibilities. On 23 August 1983 the
Company refused to supply the requested informa-
tion and on and since 16 November 1983 the Com-
affidavit was not submitted to the Acting Regional Director although it
could have been. Hence Holladay Corp. is inapposite. In NLRB v. Triplex
Mfg. Co., the court found that the employer had presented a prima facie
case of election impropriety and that the regional director was in error in
overruling the objections. Here, however, the Acting Regional Director
found no prima facie showing of unlawful conduct had been made.
Lastly, we reject the conclusion that the alleged employee petition of 4
February 1982 warrants denial of the General Counsel's Motion for Sum-
mary Judgment. As we have found the election was valid, the alleged
employee petition, filed only 5 months after the election, may not be con-
tidered. Brooks v. NLRB, 348 U.S. 96 (1954).
pany has refused to bargain generally and to supply
the requested information. We find that the refusal
to bargain and to supply the requested information
constitute an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 23 August 1983 to
supply relevant requested information, and from on
and after 16 November 1983 to supply relevant re-
quested information and to bargain with the Union
as the exclusive collective-bargaining representative
of employees in the appropriate unit, the Company
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(aXS) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement,
and to provide the Union, on request, information
necessary for collective bargaining.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, King Wholesale, Inc., Chantilly,
Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with International Long-
shoremen's Association, AFL-CIO, as the exclu-
sive bargaining representative of the employees in
the bargaining unit.
(b) Refusing to supply relevant requested infor-
mation to the Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
78
KING WHOLESALE
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement,
and provide the Union, on request, information
necessary for collective bargaining:
All full-time and regular part-time driver-sales-
men employed by the Company at its Chantil-
ly, Virginia facility, but excluding all other
employees, warehousemen, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
(b) Post at its facility in Chantilly, Virginia,
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
' If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Internation-
al Longshoremen's Association, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit.
WE WILL NOT refuse to supply relevant request-
ed information to the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All full-time and regular part-time driver-sales-
men employed by the Company at its Chantil-
ly, Virginia facility, but excluding all other
employees, warehousemen, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
WE WILL, on request, furnish the Union, as it re-
quested in its 11 August and 3 November 1983 let-
ters, the information that is relevant and necessary
to its role as the exclusive bargaining representative
of the employees in the bargaining unit.
KING WHOLESALE, INC.
79