L.M. Berry and Co.Download PDFNational Labor Relations Board - Board DecisionsApr 17, 1980248 N.L.R.B. 1218 (N.L.R.B. 1980) Copy Citation 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L. M. Berry and Company and United Food and Commercial Workers International Union, Local 1636, AFL-CIO. Case 12-CA-8853 April 17, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on October 23, 1979, by United Food and Commercial Workers Internation- al Union, Local 1636, AFL-CIO, herein called the Union, and duly served on L. M. Berry and Com- pany, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a com- plaint and notice of hearing on November 23, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 September 18, 1979, following a Board election in Case 12- RC-5557, the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;1 and that, commencing on or about October 4, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On December 5, 1979, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint, and submitting affirma- tive defenses. On December 27, 1979, counsel for the General Counsel filed directly with the Board a "Motion to Transfer Case to Board and for Summary Judg- ment." Subsequently, on January 16, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why, inter alia, the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent I Official notice is taken of the record in the representation proceed- ing, Case 12-RC 5557, as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir 1968); Goden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir 1969); Interrype Co. 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 NI.RA, as amended. 248 NLRB No. 157 thereafter filed a response to Notice To Show Cause. 2 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 Respondent's answer and response to the Notice To Show Cause assert that the Certification of Representative is invalid and that it was therefore justified in refusing to bargain with the Union. Re- spondent contends that the unit is inappropriate, that all of its objections to the election should have been sustained or at least have gone to a hearing, and finally that there are issues as to the status of the Union as exclusive bargaining representative of its employees which require a hearing. A review of the entire record, including that in Case 12-RC-5557, reveals that after a hearing was held on issues raised by the Union's petition of September 22, 1978, the Acting Regional Director issued a Decision and Direction of Election on No- vember 8, 1978, in which he directed an election among the telephone sales employees as a separate appropriate unit. Respondent requested review of the Acting Regional Director's decision. By tele- gram dated November 30, 1978, the Board denied the request for review. On December 8, 1978, the Union won the elec- tion 7 to 4, with I challenged ballot. Respondent filed seven objections which, in substance, allege that agents of the Union and employee union sup- porters made (1) false misrepresentations; (2) threats; and (3) unlawful promises, which created an atmosphere of fear and coercion which warrant- ed setting aside the election. The Regional Direc- tor, on January 25, 1979, overruled all of the objec- tions and certified the Union. Respondent filed a request for review, contend- ing the Regional Director erred in overruling the objections and again urging that the unit determi- nation previously made was erroneous. On April 9, 1979, the Board granted Respondent's request for review with respect to Objections 4 and 5 and re- manded the case to the Regional Director for the purpose of holding a hearing as to these objections. 2 On January 3, 1980, Respondent filed a separate response to General Counsel's motion to transfer this case to the Board and an alternative motion to transfer the case to an administrative law judge, in which it urged the instant case be consolidated with Cases 12-CA-8443 and 12- CA 8480 as the relief sought was identical Counsel for the General Counsel thereafter filed a response to this motion In its response to Notice To Show Cause, Respondent withdrew its motion to transfer the case to an administrative law judge L. M. BERRY AND COMPANY 1219 The Board denied the request for review in all other respects. The Hearing Officer issued his Report and Rec- ommendation on Objections on June 26, 1979, rec- ommending that Respondent's Objections 4 and 5 be overruled. Thereafter, Respondent filed with the Board exceptions, contending the Hearing Officer made erroneous factual, legal, and credibility find- ings. On September 18, 1979, the Board issued its Decision and Certification of Representative, adopting the Hearing Officer's report3 and certify- ing the Union. 4 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 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.6 Accordingly, we grant the Motion for Summary Judgment. 3 Member Murphy agreed with the Hearing Officer that the alleged misrepresentations were not objectionable for the reasons set forth in her separate opinion in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977). See her dissent in General Knit of California. Inc., 239 NLRB No. 10l (1978). 4 The Board, in its September 18, 1979, Decision and Certification of Representative, amended the name of the Petitioner, formerly Retail Clerks International Union, Local 1636, AFL-CIO, to reflect the change resulting from the merging of Retail Clerks International Union and Amalgamated Meatcutters and Butcher Workmen of North America on June 7, 1979 (hereinafter called Retail Clerks and Meatcutters, respective- ly), See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 6 In its answer and response to the Notice To Show Cause, Respon- dent alleges, for the first time, that the Board's certification of United Food and Commercial Workers International Union, Local 1636, is inva- lid since the procedure used by the Board to amend the name of the Union constitutes a denial of administrative and substantive due process to it and to bargaining unit members, and since the merger of the Retail Clerks and the Meatcutters effected a substantial change in the bargaining representative. Respondent contends the Union should be considered a new bargaining representative and the Regional Director should, there- fore, order a new election, or at a minimum a hearing should be held to resolve the substantial and material factual issues raised by the merger. Respondent's contention is not only obviously an afterthought but is an attempt to relitigate an issue which could have been litigated in the prior representation proceeding. By letter dated October 4, 1979, Respondent informed the Union it was refusing to meet and bargain because its "ob- jections, and other matters, presented to the National Labor Relations Board were resolved in an incorrect manner ... " Respondent did not indicate in this letter that one of the reasons for refusing to bargain was that the merger of the unions constituted a change of representative. Moreover, after the Board issued its September 18, 1979, Decision and Certification of Representative, Respondent could have filed a motion for On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, an Ohio corporation with its princi- pal place of business located in Dayton, Ohio, is engaged in the business of selling telephone direc- tory advertising in several States, and has an office and place of business located in Tampa, Florida. During a representative 12-month period, Respon- dent received revenues in excess of $500,000, and sold advertising valued in excess of $5,000 directly to customers within the State of Florida, which customers, in turn, meet other than a solely indirect standard for assertion of the Board's jurisdiction. 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 United Food and Commercial Workers Interna- tional Union, Local 1636, AFL-CIO, is a labor or- ganization 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 telephone sales employees employed by the Respondent at its Tampa, Florida, office, but excluding art department employees, office clerical employees, telephone salesclerks, spe- cial sales representatives, premise sales em- ployees, guards and supervisors as defined in the Act. 2. The certification On December 8, 1978, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 12, designated the Union as their representative for the purpose of collective bargaining with Respondent. reconsideration of that decision pursuant to Sec. 102.65(e) of the Board's Rules and Regulations, Series 8, as amended: it did not file such a motion. L. M. BERRY AND COMPANY 21 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union was certified as the collective-bar- gaining representative of the employees in said unit on September 18, 1979, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 24, 1979, and at all times thereafter, the Union has requested 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 October 4, 1979, and continu- ing at all times thereafter to date, 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 Respondent has, since October 4, 1979, 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. L. M. Berry and Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Inter- national Union, Local 1636, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All telephone sales employees employed by Respondent at its Tampa, Florida, office, but ex- cluding art department employees, office clerical employees, telephone salesclerks, special sales rep- resentatives, premise sales employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since September 18, 1979, 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 October 4, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive 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, Respon- dent 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. 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, L. M. BERRY AND COMPANY 1221 L. M. Berry and Company, Tampa, Florida, its of- ficers, 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 United Food and Commercial Workers International Union, Local 1636, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All telephone sales employees employed by Respondent at its Tampa, Florida, office, but excluding art department employees, office clerical employees, telephone salesclerks, spe- cial sales representatives, premise sales em- ployees, guards and supervisors as defined 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. Post at its Tampa, Florida, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Di- rector for Region 12, after being duly signed by Respondent'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 insure that said notices are not altered, defaced, or covered by any other material. 7 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 Pursu- ant to a Judgment of the UunitedStates Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director for Region 12, 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 United Food and Commercial Workers International Union, Local 1636, AFL-CIO, 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 represen- tative 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 agreement. The bargaining unit is: All telephone sales employees employed at our Tampa, Florida, office, but excluding art department employees, office clerical employees, telephone salesclerks, special sales representatives, premise sales employ- ees, guards and supervisors as defined in the Act. L. M. BERRY AND COMPANY L. M. BERRY AND COMPANY 221 Copy with citationCopy as parenthetical citation