Korb's Trading Post

National Labor Relations Board - Board Decisions

Sep 19, 1977

232 N.L.R.B. 67 (N.L.R.B. 1977)

KORB'S TRADING POST
Korb's Trading Post, Inc. and Warehouse, Processing
& Distribution Workers' Union, Local 26, Interna-
tional Longshoremen's & Warehousemen's Union.
Case 31-CA-6887
September 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on March 9, 1977, by
Warehouse, Processing & Distribution Workers'
Union, Local 26, International Longshoremen's &
Warehousemen's Union, herein called the Union,
and duly served on Korb's Trading Post, Inc., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 31, issued a complaint on April
26, 1977, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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, order severing cases, amended
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
amended complaint alleges in substance that on
December 20, 1976, following a Board election in
Case 31-RC-3604, the Union was duly certified as
the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate; 2 and that, commencing on or about February
18, 1977, and at all times thereafter, Respondent
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On May 13, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint, and raising as affirmative defenses
that (I) the Acting Regional Director had no
authority to certify a labor organization as an
exclusive collective-bargaining representative, (2)
Respondent was denied due process in the represen-
tation proceeding, and (3) the results of the election
are tainted by improper preelection conduct engaged
in by the Union.
I The complaint was issued as part of an order sevenng cases, amended
complaint, and notice of heanng. Severed were Cases 31-CA-6594 and 31-
CA-6736, which were settled by the parties on that date.
2 Official notice is taken of the record in the representation proceeding,
Case 31-RC 3604, 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
232 NLRB No. 13
On June 23, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 1, 1977, 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. 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
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 answer to the amended complaint and
response to the Notice To Show Cause, the Respon-
dent admits its refusal to bargain, but attacks the
Union's certification on the basis that (I) a unit
including inventory control employees is inappropri-
ate, (2) its objections in the underlying representation
case were improperly overruled without a hearing,
and (3) the Acting Regional Director has no
authority to certify a labor organization as an
exclusive representative. Counsel for the General
Counsel argues that there are no matters warranting
a hearing because the issues concerning the Union's
certification were litigated and determined in the
underlying representation case and that the Acting
Regional Director acted within its delegated authori-
ty. We agree with the General Counsel.
A review of the record herein, including the record
in Case 31-RC-3604, indicates that on October 14,
1976, an Acting Regional Director issued a Decision
and Direction of Election in the unit found appropri-
ate which included, inter alia, inventory control
employees. The Union won the election conducted
on November 10, 1976. Thereafter, the Respondent
filed timely objections to the election alleging that
the Union (1) made promises and guarantees of
improved wages and benefits, (2) sent misleading
campaign material, (3) threatened, coerced, and
intimidated employees, (4) discriminated upon the
basis of race, national origin, and sex, and (5)
induced employees to vote for the Union by telling
them that unless they voted for the Union they would
have to pay initiation fees. On December 20, 1976,
after investigation of the Respondent's objections,
LTV Electrosystents, 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):
Foller Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Acting Regional Director issued a Supplemental
Decision and Certification of Representative, 3 over-
ruling the objections and certifying the Union. The
Respondent filed a timely request for the review of
the Acting Regional Director's Supplemental Deci-
sion and Certification of Representative, and the
Board, by telegraphic order dated February 9, 1977,
denied the request as it raised no substantial issue
warranting review.
As to Respondent's contention that its objections
to the election in the underlying representation
proceeding were improperly overruled without a
hearing, we necessarily found in denying review of
the Acting Regional Director's Supplemental Deci-
sion and Certification of Representative that Re-
spondent had not raised issues warranting a hearing
and, therefore, a hearing was not required. 4 It thus
appears that Respondent is attempting to raise herein
issues which were raised and determined in the
underlying representation case. It is well settled that
in the absence of newly discovered or 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
which were or could have been litigated in a prior
representation proceeding.5
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision 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
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation, is engaged
in the warehousing and distribution of clothing to its
retail outlets. Respondent annually purchases and
receives goods or services valued in excess of $10,000
directly from suppliers located outside the State of
3 We find no merit to the Respondent's affirmative defense that the
Acting Regional Director has no authonty to certify a labor organization as
an exclusive collective-bargaining representative. Acting Regional Directors
have the same authority as the Regional Director in whose stead they are
designated to serve. The Board has delegated authority over representation
cases to Regional Directors under Sec. 3(b) of the Act, and that delegation
has been held to be valid. Wallace Shops, Inc., 133 NLRB 36 (1961);
Weyerhaeuser Company, 142 NLRB 702 (1963); Magnesium Casting Co. v.
California. It also annually derives gross revenues in
excess of $500,000.
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
Warehouse, Processing & Distribution Workers'
Union, Local 26, International Longshoremen's &
Warehousemen's Union, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
i. 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 warehouse employees, shipping and receiving
employees, maintenance and repair employees,
plant clerical workers, inventory control clerks,
and truck drivers employed by the Employer at
its warehouse located at 4795 McGrath, Ventura,
California; excluding all guards, watchmen,
salesmen, office clerical employees and supervi-
sors as defined in the Act.
2. The certification
On November 10, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of Acting
Regional Director for Region 31 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
December 20, 1976, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
N.L.R.B., 401 U.S. 137 (1971). Accordingly, the Acting Regional Director
acted within the authority conferred upon him by his office in issuing the
Supplemental Decision and Certification of Representative. See also Otis
Hospital. Inc., 219 NLRB 164(1975).
Williams Energy Company, 218 NLRB 1080, 1081 (1975).
5 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
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KORB'S TRADING POST
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 10, 1976, and
continuing to date, and more particularly, on
February 18 and March 4 and 14, 1977, 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 February 18, 1977, 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 February 18, 1977, and at all times thereafter,
refused to bargain collectively with the Union as the
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 1, 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 com-
mences to bargain in good faith with the Union as
the recognized 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Korb's Trading Post, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Warehouse, Processing & Distribution Work-
ers' Union, Local 26, International Longshoremen's
& Warehousemen's Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All warehouse employees, shipping and receiv-
ing employees, maintenance and repair employees,
plant clerical workers, inventory control clerks, and
truck drivers employed by the Employer at its
warehouse located at 4795 McGrath, Ventura,
California; excluding all guards, watchmen, sales-
men, office clerical employees 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 December 20, 1976, 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 February 18, 1977, 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(aX5) 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 the Respondent,
Korb's Trading Post, Inc., Ventura, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Warehouse, Process-
ing & Distribution Workers' Union, Local 26,
International Longshoremen's & Warehousemen's
Union, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All warehouse employees, shipping and receiving
employees, maintenance and repair employees,
plant clerical workers, inventory control clerks,
and truck drivers employed by the Employer at
its warehouse located at 4795 McGrath, Ventura,
California; excluding all guards, watchmen,
salesmen, office clerical employees and supervi-
sors 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its 4795 McGrath, Ventura, California,
location, copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent 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. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
s 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."
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Ware-
house, Processing & Distribution Workers'
Union, Local 26, International Longshoremen's
& Warehousemen's 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
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 warehouse employees, shipping and
receiving employees, maintenance and re-
pair employees, plant clerical workers, in-
ventory control clerks, and truck drivers
employed by the Employer at its warehouse
located at 4795 McGrath, Ventura, Califor-
nia; excluding all guards, watchmen, sales-
men, office clerical employees and supervi-
sors as defined in the Act.
KoRB's TRADING POST,
INC.
70