Oshman's Sporting Goods

National Labor Relations Board - Board Decisions

Jun 20, 1977

230 N.L.R.B. 312 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oshman's Sporting Goods, Inc. and Teamsters,
Warehousemen & Miscellaneous Union, Local
860, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 20-CA-12335
June 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on January 5, 1977, by
Teamsters, Warehousemen & Miscellaneous Union,
Local 860, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on
Oshman's Sporting Goods, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 20, issued a complaint and
notice of hearing on January 28, 1977, 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 October 7,
1976, following a Board election in Case 20-RC-
13255 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; and that,
commencing in July 1976 and on December 3, 1976,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On February 7, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On February 28, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 8,
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. Respon-
I Official notice is taken of the record in the representation proceeding,
Case 13-RC-13255, as the term "record" is defined in Secs. 102.68 and
102.6 9(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 (C.A. 4,
230 NLRB No. 34
dent thereafter filed a response to Notice To Show
Cause, entitled "Memorandum in Opposition to
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 answer to the complaint and response to the
Notice To Show Cause, the Respondent attacks the
Union's majority status and certification, asserting
that its election objections, which were overruled
without a hearing, warranted setting aside the
election and alternatively asserting that it is entitled
to an evidentiary hearing on its objections. On the
other hand, the General Counsel contends that there
are no issues of law or fact requiring a hearing and
that the Motion for Summary Judgment should be
granted. We agree with the General Counsel.
Review of the entire record, including that in Case
20-RC-13255, discloses that the Union lost the
March 3, 1976, election conducted pursuant to the
Regional Director's Decision and Direction of
Election. The Union filed timely objections. On April
14, 1976, the Regional Director issued a Supplemen-
tal Decision ordering that a hearing be held on some
of the objections. Thereafter, pursuant to a stipula-
tion of the parties approved by the Regional
Director, the results of the election were set aside and
a rerun election was conducted. In the rerun election,
14 votes were cast for, and 8 against, the Union, and
there were no challenged ballots. The Respondent
filed timely objections alleging, in substance, that the
Union (I) threatened and coerced employees to
support it; and (2) made material misrepresentations
of fact concerning wage increases, prevailing wage
rates, and the Respondent's unlawful conduct during
the first election. After investigation of the objec-
tions, the Regional Director issued on July 7, 1976,
her Second Supplemental Decision and Certification
of Representative in which she overruled the objec-
tions in their entirety and certified the Union. The
Respondent filed a timely request for review of the
Regional Director's Second Supplemental Decision,
reiterating its objections and contending that it was
error to overrule the objections without a hearing
and to certify the Union. On October 7, 1976, the
Board denied the Respondent's request for review as
it raised no substantial issues warranting review. By
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);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
312
OSHMAN'S SPORTING GOODS, INC.
this denial of review, because of the lack of
substantial issues, the Board also necessarily found
that there were no issues warranting a hearing.2 It
thus appears that there are no issues of fact or law
requiring a hearing herein and that the Respondent is
attempting to raise issues which were raised and
resolved in the underlying representation proceeding.
This it may not do. 3
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.4
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
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Texas corporation with retail and
wholesale facilities located in the State of California,
including a warehouse facility located at Millbrae,
California, has been engaged in the retail sale of
sporting goods and equipment. During the past
calendar year, Respondent, in its business opera-
tions, received gross revenues in excess of $500,000.
During that period, Respondent, in its business
operations, received in California goods valued in
excess of $50,000 directly from suppliers located
outside the State of California.
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.
2 Williams Energy Company, 218 NLRB 1080, 1081 (1975).
3 Modine Manufacturing Company, 203 NLRB 527, enfd. 500 F.2d 914
(C.A. 8, 1974); CSC Oil Company, 220 NLRB 19 (1975).
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Warehousemen & Miscellaneous
Union, Local 860, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, 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 warehouse employees employed by the
Employer at its Millbrae, California, facility,
including shippers, receivers, stockers, packers,
order fillers, order pullers, truck drivers and
warehouse clerical employees; excluding all other
employees, guards and supervisors as defined in
the Act.
2. The certification
On May 13, 1976, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 20, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on July 7, 1976, 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 in July 1976 and on December 3,
1976, and at all times thereafter, the Union has
requested the Respondent to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-described
unit. Commencing in July 1976 and on December 3,
1976, 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 in July 1976 and on December 3, 1976, and at
4 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 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 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 (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. Oshman's Sporting Goods, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters, Warehousemen & Miscellaneous
Union, Local 860, International Brotherhood 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 employed by the
Employer at its Millbrae, California, facility, includ-
ing shippers, receivers, stockers, packers, order fillers,
order pullers, truck drivers and warehouse clerical
employees; excluding all other 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 7, 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 in July 1976 and on December 3,
1976, and at all times thereafter, to bargain collec-
tively 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 the Respondent,
Oshman's Sporting Goods, Inc., Millbrae, California,
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 Teamsters, Ware-
housemen & Miscellaneous Union, Local 860,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All warehouse employees employed by
the Employer at its Millbrae, California,
facility, including shippers, receivers, stock-
ers, packers, order fillers, order pullers, truck
drivers and warehouse clerical employees;
excluding all other employees, guards and
supervisors as defined in the Act.
314
OSHMAN'S SPORTING GOODS, INC.
(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 Millbrae, California, facility, copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 20, 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 20, 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 Team-
sters, Warehousemen & Miscellaneous Union,
Local 860, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, 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 employed by
the Employer at its Millbrae, California,
facility, including shippers, receivers, stock-
ers, packers, order fillers, order pullers, truck
drivers and warehouse clerical employees;
excluding all other employees, guards and
supervisors as defined in the Act.
OSHMAN'S SPORTING
GOODS, INC.
315