Midland-Ross, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1979

243 N.L.R.B. 1165 (N.L.R.B. 1979)

MIDL.AND-ROSS, IN(C.
Midland-Ross, Inc. and General Drivers, Warehouse-
men And Helpers Local No. 89, Affiliated With In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 9-
CA- 13598
August 7, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, ANI) TRULSDALE
Upon a charge filed on March 7. 1979, by General
Drivers, Warehousemen, and Helpers Local No. 89,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served on
Midland-Ross, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9, issued
a complaint on March 15, 1979, against Respondent,
alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (I) 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 proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges, in essence, that on January 29. 1979,
following a Board election in Case 9-RC- 11991. 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 February 28, 1979, 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.
Respondent filed its answer to the complaint dated
March 26, 1979, in which it admitted, in part, and
denied, in part, the allegations in the complaint. Spe-
cifically, Respondent admitted that it has declined to
bargain with the Union, but denied that it is under a
duty to do so or that it has committed the unfair
labor practices alleged. On March 28, 1979, Respon-
dent filed a motion to dismiss the complaint.
' Official notice is taken of the record in the representation proceeding,
Case 9-RC-11991. 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 NLRB 938 (1%7), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967)., enfd. 415 F.2d 26
(5th Cir. 1969): Intervpe 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 NLRA, as amended.
On May 18. 1979, counsel fr the General Counsel
filed directly with the Board a Motion for Summnar
Judgment and a motion to strike portions of' Respon-
dent's answer. Subsequently, on May 29, 1979. the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to Notice To Show Cause.
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
In its answer to the complaint in the instant case. as
well as in its reply to the Notice To Show Cause why
summary judgment should not be granted and in its
motion to dismiss filed on March 28, 1979. Respon-
dent argues that the instant complaint is premature
and that further proceedings should be held in abey-
ance, pending review of the Board's decision as to the
eligibility status of a challenged voter by the United
States Court of Appeals for the Sixth Circuit where
the Board's application for enforcement of its Order
is presently pending. General Counsel contends that
the matters raised by Respondent herein were liti-
gated in Cases 9-CA 11288 and 9-RC 11991. and
cannot be relitigated in this proceeding. We agree
with the General Counsel.
Our review of the record, including that of' Case 9-
RC-11991. shows that an election was held on May
19, 1977. pursuant to a Stipulation for Certification
Upon Consent Election, and that two ballots were
cast for the Union. two against, and one ballot was
challenged by the Employer on the ground that the
individual casting that ballot was not an eligible
voter. The challenged ballot, which was determina-
tive of the election outcome, was that of an employee
whose discharge on or about April 18, 1977, was al-
leged as an unfair labor practice in Case 9-C'A-
11288. Following an investigation, the Regional Di-
rector for Region 9 on June 21, 1977, issued a report
on challenged ballot and order directing Hearing, and
consolidated the representation and unfair labor
practice cases for hearing. Thereafter, a hearing was
held before an administrative law judge.
On March 22, 1978, the Administrative Law Judge
issued his Decision in Cases 9-CA- 11288 and 9- RC-
11991, finding that the discharge of the challenged
voter violated Section 8(a)(3) and (I) of the Act. and
recommending that the challenged voter's ballot be
opened and counted. Exceptions to the Administra-
243 NLRB No. 179
I I65
I)E('ISIONS () NAI I()NAI LABOR RELATIONS BOARD
tive Law Judge's Decision were filed by Respondent,
and the General Counsel filed limited cross-excep-
tions. On January 4, 1979. the Board issued its Deci-
sion and Order (idland-Ross.v Inc., 239 NLRB 1205).
adopting the Administrative Law Judge's findings,
conclusions, and recommendations, and further or-
dering the Regional Director for Region 9 to open
and count the challenged voter's ballot and issue the
appropriate certification. On January 19, 1979, the
Regional Director prepared a revised tally of ballots
showing that of five eligible voters, three cast ballots
for, and two against, the Union. On January 29, 1979,
the Regional Director issued a Certification of Repre-
sentative, certifying the Union as the exclusive bar-
gaining representative of Respondent's employees.
On February 6, 1979, the Union requested Respon-
dent to bargain collectively with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment. On February 28,
1979, and at all times thereafter, Respondent refused
to bargain with the Union.
Thus, it appears that Respondent's refusal to bar-
gain with the Union rests solely on the ground that
until the court agrees with the Board that the alleged
discriminatee who cast the determinative challenged
ballot was an eligible voter, the validity of the Board's
certification and, therefore, Respondent's duty to bar-
gain, is in doubt. Under Section 10(g) of the Act,
however, an application to a court of appeals for en-
forcement of a Board Order under Section 10(f) does
not operate as a stay of the Order unless the court
specifically so provides. Even though the Board's de-
cision ultimately may be reversed, a respondent must
honor the certification, and its duty to bargain is not
postponed by a pending petition for court review.2
It is well settled that, in the absence of newly 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.3
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 proceeding in question. We therefore find that
Respondent has not raised any issue which is prop-
2 Grand Auto, Inc.. d/hb/a Super Tire Stores, 239 NLRB 452 (1978); West-
ville Homes Corporation, 196 NLRB 963, 964 (1972), and cases cited therein
at fn. 2.
3See 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).
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment. 4
On the basis of the entire record, the Board makes
the following:
FINDINGS ()F FA("I
I. ItI BUSINESS OF RESP()ONL)NI
Respondent, an Ohio corporation, is engaged in the
nonretail sale, warehousing, and distribution of plas-
tic products from its 1450 South 10th Street, Louis-
ville, Kentucky. facility. During the 12 months pre-
ceding issuance of the complaint, a representative
period, Respondent purchased and received goods
and materials, valued in excess of $50,000, which
were shipped to its Louisville, Kentucky, facility di-
rectly from points outside the Commonwealth of
Kentucky.
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. IHE LABOR ORGANIZA'IION INVO)l.VED
General Drivers, Warehousemen and Helpers Lo-
cal No. 89, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warhousemen and Helpers
of America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II111. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All warehouse employees; but excluding profes-
sional employees, office clerical employees,
guards, and supervisors as defined in the Act and
all other employees.
4 In view of our decision to grant the General Counsel's Motion for Sum-
mary Judgment. Respondent's motion to dismiss the complaint is hereby
denied. In the motion to strinke portions of Respondent's answer, the General
Counsel requests that those portions of Respondent's answer denying the
allegations of the complaint be stricken, and that all allegations of the com-
plaint be deemed to be true. In view of our decision herein, we find it unnec-
essary to pass on the General Counsel's motion to strike portions of Respon-
dent's answer.
1166h
MIDLAND-ROSS. INC.
2. The certification
On May 19, 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 9, 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 January 29, 1979, 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 Re/fisal
Commencing on or about February 6, 1979, 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. On or about Febru-
ary 28, 1979, and continuing at all times thereafter to
date, Respondent has refused, and continues to re-
fuse, 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
February 28, 1979, 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 1, 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.
To insure that the employees in the appropriate
unit will be accorded the services of' their selected
bargaining agent for the period provided bh law, we
shall construe the initial period of certification as be-
ginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry CompanY, Inc.. 136 N.RB 785
(1962); Commiterce Companl dl/b/a Lamar Hotel. 140
NLRB 226. 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817: Burnett Consruction
Comlpatn. 149 NLRB 1419. 1421 (1964). enftd. 350
F.2d 57 (10th Cir. 1965).
The Board. upon the basis of the foregoing facts
and the entire record. makes the following:
CONC('I'SI()ONS ( l. LA\W
1. Midland-Ross, Inc., is an emploer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. General Drivers. Warehousemen and Helpers
Local No. 89. affiliated with International Brother-
hood of Teamsters, Chauffeurs. Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All warehouse employees: excluding protes-
sional employees, office clerical employees. guards.
and supervisors as defined in the Act and all other
employees, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since JanuarN 29. 1979, the above-named labor
organization has been and now is the certitied and
exclusive representative of all employees in the afore-
said appropriate unit fr the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about February 28. 1979. 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)(51 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 them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)( ) of the Act.
7. The aforesaid unfair labor practices are unftair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Midland-
Ross, Inc., Louisville, Kentucky, 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 General Drivers, Ware-
housemen, and Helpers Local No. 89, affiliated with
International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All warehouse employees, excluding professional
employees, office clerical employees, guards, and
.upervisors as defined in the Act and all other
employees.
(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. l ake 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 Louisville, Kentucky, warehouse
copies of the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the Re-
gional Director for Region 9, after being duly signed
by Respondent's representative, shall be posted by
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."
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive day's 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.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYIFS
PO)STED BY ORI)ER ()F'I IE
NAFIoNAL LABOR REI.A IIONS 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 Gen-
eral Drivers, Warehousemen and Helpers Local
No. 89, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America. as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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; excluding profes-
sional employees, office clerical employees,
guards, and supervisors as defined in the Act.
MIDLAND-Ross, INC.
1168