Sun Drug Co., Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1964

147 N.L.R.B. 669 (N.L.R.B. 1964)

SUN DRUG CO., INC. 669
General Teamsters Local No. 324 , International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of America
[Curly's Dairy, Inc., and . Timber Valley Dairy, Inc.] and Cas-
cade Employers Association , Inc. Case No. 36-CC-96.. June 25,
1964
SUPPLEMENTAL DECISION AND AMENDED ORDER
On September 26, 1963, the Board issued a Decision and Order 1
finding that Respondent Union had engaged in consumer picketing at
secondary establishments. Relying on Fruit & Vegetable Packers
d Warehousemen, Local 760, etc. (Tree Fruits), 132 NLRB 1172,
1177, the Board concluded that Respondent had thereby violated
Section 8(b) (4) (ii) (B) of the Act.' On April 20, 1964, the Supreme
Court rejected the Board's holding in that case. N.L.R.B. v. Fruit d
Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58.
Upon reconsideration of this case in light of the Court's afore-
mentioned decision, we find that Respondent Union did not violate
the Act as alleged and we shall dismiss the complaint.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board 2 hereby orders that
the complaint herein be, and it hereby is, dismissed.
1144 NLRB 836.
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman McCulloch and Members Fanning and Brown].
147 NLRB No. 86.
Sun Drug Co., Inc. and Retail Clerks International Association,
Local 298, AFL-CIO. Case No. 6-CA-2925. June 25, 1964
DECISION AND ORDER
On March 31 , 1964, Trial Examiner Louis Libbin issued his De-
cision in the above-entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action , as set forth in
the attached Trial Examiner 's Decision. Thereafter , Respondent
filed exceptions to the Trial Examiner 's Decision and a supporting
brief.
147 NLRB No. 90.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on January 9 and 22, 1964, by Retail Clerks International
Association, Local 298, AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board, by the Regional Director for the Sixth Region
(Pittsburgh , Pennsylvania ), issued his complaint , dated January 29, 1964, against
Sun Drug Co., Inc., herein called the Respondent . With respect to the unfair labor
practices , the complaint alleges that Respondent refused to bargain collectively with
the Union which was the certified exclusive representative of Respondent's em-
ployees in an appropriate bargaining unit , and thereby violated Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended , herein called the Act. In
its duly filed answer, Respondent admits that it refused to bargain with: the Union
but challenges the appropriateness of the unit and the validity of the certification.
Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin
.at Pittsburgh , Pennsylvania , on February 18, 1964, at which all parties appeared and
were represented by counsel. On March 18, 1964 , Respondent filed a brief, together
with requests for findings of fact and conclusions of law, all of which I have fully
considered . Upon the entire record I in the case , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent , a Pennsylvania corporation with its principal office in Pittsburgh,
Pennsylvania , is engaged in the operation of a chain of retail drug stores located in
the States of Pennsylvania and West Virginia . During the year preceding the issu-
ance of the complaint, Respondent 's gross volume of business was in excess of
$500,000; during the same period , Respondent purchased and received at its opera-
tions in the Commonwealth of Pennsylvania , goods and materials , valued in excess
of $50,000 , from points directly outside the Commonwealth of Pennsylvania.
Upon the above admitted facts, I find , as Respondent admits in its answer , that it
is engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act.
1 I hereby note and correct the following obvious errors in the typewritten transcript of
testimony : On page 8, line 17, the word "by" is changed to "from"; on page 18, line 3, the
word "form" is changed to "forum"; and on page 19, line 20, the word "Is" is changed
to "as".
SUN DRUG CO., INC. 671
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find, that Retail Clerks Inter-
national Association, Local 298, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The sole issues which Respondent seeks to test in this proceeding are the validity
of the findings in the representation proceeding (1) as to the appropriateness of
the unit and (2) as to the ineligibility of Carol Stilley to vote on the ground that
she was an occasional or casual employee.
A. The representation proceeding
After a hearing held on June 20, 1963, upon a petition filed by the Union for
an election to determine the designation of a collective-bargaining representative,
the Acting Regional Director for the Sixth Region, pursuant to his delegated
authority under Section 3(b) of the Act, issued a Decision and Direction of Election,
dated July 15, 1963, in which he found that all employees of the Respondent's New
Castle, Pennsylvania, store, excluding store manager, comanager and fountain man-
ager, guards, professional employees, and other supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within Section
9(b) of the Act? . He also directed that an election be conducted among the em-
ployees in the aforestated appropriate unit to determine whether or not they desire
to be represented for collective-bargaining purposes by the Union.
Thereafter, on July 23, 1963, the Respondent filed with the Board in Washington,
D.C., a petition for review of Regional Director's Decision and Direction of Election.
In this petition for review, consisting of 13 printed pages, Respondent contends that
the Acting Regional Director erred in finding that a unit confined to the employees
of the New Castle, Pennsylvania, store is an appropriate unit within the meaning of
Section 9(b) of the Act, and that.there were compelling reasons for reconsideration
of Board policy. By telegram, dated August 10, 1963, the Board denied Respond-
ent's petition for review "as it raises no substantial issues warranting review and
there is no compelling reason in this proceeding for reconsideration of Board policy."
Pursuant to the above-mentioned Decision and Direction of Election, the Regional
Director conducted an election on August 13, 1963, among the employees in the
aforestated appropriate unit. Of the 12 ballots cast, 6 were for the Union, 5 were
against the Union, and 1 ballot was challenged. As the challenged ballot was suffi-
cient to affect the results of the election, the Regional Director, pursuant to the
Board's Rules and Regulations, conducted an investigation bearing on the issue of
the challenged ballot.
On October 25, 1963, the Regional Director issued a Supplemental Decision and
Certification of Representative, consisting of four pages, in, which he detailed his
findings disclosed by his investigation. In this Supplemental Decision, the Regional
Director stated that the Union challenged the ballot of Carol Stilley on the ground
that she was a casual employee during the eligibility period and therefore not eligible
to vote, and that Respondent considered her to be an eligible voter. He then de-
tailed in two pages the facts pertaining to Stilley's employment relationship and found
"that Stilley was an'occasional or casual employee, rather than a regular part-time
employee, on the eligibility date." Following Board precedents, the Regional Direc-
tor concluded that Stilley was therefore ineligible to vote and accordingly sustained
the challenge to her ballot. He then certified the Union as the collective-bargaining
representative of the employees in the appropriate unit.
On November 1, 1963, the Respondent filed with the Board in Washington, D.C.,
a request for review of Regional Director's Supplemental Decision and Certification
of Representative. In this request for review, consisting of 10 printed pages, Re-
spondent set forth its version of the facts with respect to Silley's employment relation-
ship, and contended that the Regional Director's findings were contrary to said facts,
were "arbitrary and capricious," and were "contrary to firmly established Board
policy and precedent." The Respondent concluded with a request that the Board
set aside the Regional Director's Supplemental Decision and Certification of Repre-
sentative, and either order the ballot of Stilley to be opened and counted or direct
a hearing to determine whether the ballot of Stilley should be opened and counted.
By telegram dated December 9, 1963, the Board denied Respondent's request for
review "as it raises no substantial issues warranting review."
2 In the representation proceeding , the Respondent is designated as the Employer, and
the Union is designated as the Petitioner.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The unfair labor practice proceeding
By.letter dated December 17, 1963, the Union requested Respondent for a meeting
"at your earliest convenience for the purpose . of negotiating a union agree-
ment " In a reply letter, dated December 23, 1963, Respondent 's counsel
advised the Union that Respondent "declines to meet and bargain with you" because
of the belief that the Regional Director erred in finding the single store an appropriate
unit and in his disposition of the challenged ballot.
Thereafter , the charge was filed and a complaint was issued in the instant pro-
ceeding. At the hearing in the instant proceeding , counsel for Respondent stipulated
that Respondent has continued to refuse to bargain with the Union . He stated that
he did not intend to adduce any additional evidence with respect to the appropriate-
ness of the unit , being satisfied to rely on the record already made in the representa-
tion proceeding . However, he was prepared , and requested an opportunity, to call
several witnesses to testify with respect to the employment relationship of Carol
Stilley and the issue of whether her ballot should be opened and counted. I sus-
tained the General Counsel 's objection to this procedure on the ground that the
issue had already been decided by the Board in the representation proceeding and
the Board 's long-established policy not to permit the same issues to be litigated in
the complaint proceeding . Counsel for Respondent then made an offer of proof,
which I rejected , that he would prove by named witnesses that Carol Stilley was
an employee of the New Castle , Pennsylvania, store during the eligibility period,
that she is still an employee of that store, that she was an employee of Respondent
before that period , that she was not a casual employee , that she started to work for
Respondent about a year before the eligibility period , that her employment with
Respondent had never been terminated , and that she had a reasonable expectation
and was sure of employment at the New Castle , Pennsylvania , store.
C. Concluding findings
Section 102 . 67 (f) of the Board's Rules and Regulations , Series 8, as amended,
provides that "denial of a request for review [of a decision of a regional director]
shall constitute an affirmance of the regional director's action which shall also pre-
clude relitigating any such issues in any related subsequent unfair labor practice
proceeding ." And in The Mountain States Telephone and Telegraph Co., 136
NLRB 1612, 1615 , the Board pointed out that, in the absence of any evidence un-
available at the time of the representation proceeding or any newly discovered
evidence , the Board has in the past refused "to reconsider in a subsequent unfair
labor practice proceeding alleging a refusal to bargain matters which have been
disposed of in a prior related representation proceeding ." The Board also decided
in that case that "this policy should also govern where the representation proceeding
has been processed under Section 3(b) of the Act and where , as in the present case,
the Board has denied a request for review " of the Regional Director 's decision.
The Board further pointed out in the Mountain States case , supra, that , in consider-
ing a request for review , the Board examines the Regional Director 's determinations
and his reasons therefore and, "by the denial of such request , has concluded that
they were not clearly improper as a matter of law or policy."
Counsel for Respondent however contends in his brief that, as no hearing had
ever been held on the issue of whether the ballot of Carol Stilley should be opened
and counted , he was attempting to litigate , and not to relitigate , this issue. At no
time did counsel for Respondent contend that he had any evidence which was un-
available at the time of his submission to the Board of his request for review of
the Regional Director's Supplemental Decision or any newly discovered evidence.
An examination of Respondent 's request for review discloses that the factual recita-
tion therein does not differ in any significant respect from that set forth in the
Regional Director 's Supplemental Decision . In any event, counsel for Respondent
admitted in the instant hearing, and does not dispute in his brief , that in his request
for review of the Regional Director 's Supplemental Decision , he explained his posi-
tion fully to the Board on this issue and set forth his version of the facts. I must
assume, as I stated at the instant hearing and as the Mountain States case supra,
indicates , that the Board 's denial of the Respondent 's request for review in the
instant case means that : ( 1) the Board accepted the truth of the factual recitation
in the Respondent 's request for review ; ( 2) based thereon , it agreed with the Re-
gional Director 's ultimate finding as to the status of Carol Stilley and his disposition
of the challenged ballot; and (3) therefore a hearing to permit the Respondent to
SUN DRUG CO., INC. 673
adduce evidence in support of the factual recitation contained in its request for re-
view was wholly unnecessary and would serve no useful purpose. As previously
noted, the Board's findings and rulings in the representation proceeding are binding
upon me. If, as counsel for the Respondent further contends in his brief, the Board
was in error in agreeing with the Regional Director's ultimate findings and con-
clusions, then only the Board or some higher tribunal, and not. the Trial Examiner,
has the authority to reverse the Board.
Upon consideration of all the foregoing, I find that Respondent's admitted refusal
on and after December 23, 1963, to bargain collectively with the Union as the ex-
clusive representative of its employees in the above-described appropriate unit,
constitutes a violation 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 connec-
tion with the operations of Respondent as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor practices burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in the unfair labor practices of
refusing to bargain collectively with the chosen representative of its employees in
an appropriate unit, I will recommend that Respondent cease and desist therefrom
and from like and related conduct. I will further recommend that Respondent,
upon request, bargain collectively with the Union as the exclusive representative of
its employees in the appropriate unit.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAw
1. Retail Clerks International Association, Local 298, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. All employees of the Respondent's New Castle, Pennsylvania, store, excluding
store manager, comanager and fountain manager , guards, professional employees
and other supervisors as defined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act.
3. At all times since October 25, 1963, the Union has been and continues to be the
exclusive bargaining representative of all the employees in the aforementioned unit
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act. -
4. By refusing, on and after December 23, 1963, to bargain collectively with the
above-named Union as the exclusive representative of its employees in the aforesaid
unit, the Respondent has engaged and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) of the Act.
5. By refusing to bargain with the above-named Union, the Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, thereby engaging in an unfair labor practice within the mean-
ing of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended , I hereby recommend that the Respondent,
Sun Drug Co ., Inc., Pittsburgh , Pennsylvania , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Clerks International Association,
Local 298 , AFL-CIO, as the exclusive bargaining representative of its employees in
the following appropriate unit:
All employees of the Respondent 's New Castle, Pennsylvania, store , excluding
store manager, comanager and fountain manager , guards, professional em-
ployees, and other supervisors as defined in the Act.
756-236-65-vol. 147-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with the efforts of the aforesaid Union to
bargain collectively with Respondent on behalf of the employees in the appropriate
unit.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act.
(a) Upon request, bargain collectively with Retail Clerks International Associa-
tion, Local 298, AFL-CIO, as the exclusive representative of the employees in the
above-described appropriate unit with respect to rates of pay, wages, hours of
work, and other terms and conditions of employment, and embody in a signed agree-
ment any understanding reached.
(b) Post at its New Castle, Pennsylvania, store, copies of the attached notice
marked "Appendix." 3 Copies of said notice, to be furnished by the Regional
Director for the Sixth Region, after being duly signed by an authorized representa-
tive of the Respondent, shall be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixth Region, in writing, within 20 days
from the receipt of this Recommended Order, what steps it has taken to comply
herewith.4
' In the event that this Recommended Order be adopted by the Board, the words "a Deci-
sion and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States Court
of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
4In the event that this Recommended 'Order be adopted by the Board this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL upon request, bargain collectively with Retail Clerks International
Association, Local 298, AFL-CIO, as the exclusive bargaining representative
of our employees in the appropriate unit described below, concerning rates of
pay, wages, hours of employment, and other conditions of employment and we
will embody in a signed agreement any understanding reached. The bargaining
unit is:
All employees of our New Castle, Pennsylvania, store, excluding store
manager, comanager and fountain manager, guards, professional employees
and other supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with the efforts of the above-
named union to bargain collectively with us, or refuse to bargain with said
union as the representative of our employees in the appropriate unit.
SUN DRUG Co., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 2107
Clark Building, 701-17 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No.
Grant 1-2977, if they have any question concerning this notice or compliance with
its provisions.