St. George Warehouse

National Labor Relations Board - Board Decisions

Apr 10, 2001

333 N.L.R.B. 113 (N.L.R.B. 2001)

333 NLRB No. 113
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
St. George Warehouse, Inc. and Merchandise Drivers
Local No. 641, International Brotherhood of
Teamsters. Case 22–CA–24362
April 10, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND WALSH
Pursuant to a charge filed on January 12, 2001, the
Acting General Counsel of the National Labor Relations
Board issued a complaint on January 30, 2001, alleging
that the Respondent has violated Section 8(a)(5) and (1)
of the National Labor Relations Act by refusing the Un-
ion’s request to bargain following the Union’s certifica-
tion in Case 22–RC–11703.1 (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); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint.
On February 26, 2001, the Acting General Counsel
filed a Motion for Summary Judgment. On February 28,
2001, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed a
response and the Acting General Counsel filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain, but attacks the validity of the certification because
the Board’s decision in 331 NLRB No. 55 (2000) is, as
noted supra, currently pending in the United States Court
of Appeals for the Third Circuit on the Respondent’s
Petition for Review and the Board’s Cross Application
for Enforcement.2 In that proceeding, the Respondent is
challenging the Board’s finding that employees Sides
and Tharp, whose ballots were determinative, were dis-
charged in violation of Section 8(a)(3).

1 The challenged ballot issues in the underlying representation case
were consolidated with certain unfair labor practice cases as reported at
331 NLRB No. 55 (2000). The unfair labor practice cases are currently
pending before the United States Court of Appeals for the Third Cir-
cuit.
2 The Respondent’s answer also raised two affirmative defenses
which centered on the Respondent’s contention that the employer of
“supplier employees” is not part of the unit. In its response, however,
the Respondent has withdrawn these defenses in view of the Acting
General Counsel’s acknowledgement in his Motion for Summary
Judgment that “temporary agency employees” (who are excluded from
the unit) and “supplied employees” are the same.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I JURISDICTION
At all times material, the Respondent, a corporation
with an office and a place of business in Kearny, New
Jersey, has been engaged in the warehousing of com-
modities. During the 12-month period preceding the
issuance of the complaint, the Respondent, in conducting
its business operations described above, performed
warehousing services valued in excess of $50,000 in
States other than the State of New Jersey.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 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 RACTICES
A. The Certification
Following the election held April 16, 1999, the Union
was certified on October 27, 2000, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part-time warehouse em-
ployees employed by the Respondent at its South
Kearny, New Jersey facility, but excluding all temp o-
rary agency employees, office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
Since December 19, 2000, the Union, by letter, has re-
quested the Respondent to bargain, and, since December
19, 2000, the Respondent has refused. We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
CONCLUSION OF LAW
By refusing on and after December 19, 2000, to bar-
gain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged 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 Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) 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.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification 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, St. George Warehouse, Inc., Kearny, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Merchandise Drivers Lo-
cal No. 641, International Brotherhood of Teamsters, as
the exclusive bargaining representative of the employees
in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employment,
and if an understanding is reached, embody the under-
standing in a signed agreement:

All full-time and regular part-time warehouse employ-
ees employed by the Respondent at its South Kearny,
New Jersey facility, but excluding all temporary
agency employees, office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.

(b) Within 14 days after service by the Region, post at
its facility in Kearny, New Jersey, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on

3 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-
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 19, 2000.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

Dated, Washington, D.C. April 10, 2001

John C. Truesdale, Chairman

Wilma B. Liebman, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Merchandise
Drivers Local No. 641, International Brotherhood of
Teamsters, as the exclusive representative of the employ-
ees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exe rcise 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

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ST . GEORGE, WAREHOUSE, INC. 3
conditions of employment for our employees in the bar-
gaining unit:

All full-time and regular part-time warehouse employ-
ees employed by us at our South Kearny, New Jersey
facility, but excluding all temporary agency employees,
office clerical employees, professional employees,
guards and supervisors as defined in the Act.

ST . GEORGE WAREHOUSE, INC.