The Dai'el (USA), Inc.

National Labor Relations Board - Board Decisions

Jul 2, 1979

243 N.L.R.B. 275 (N.L.R.B. 1979)

THE DAI'E[ (USA). INC.
The Dai'ei (USA), Inc. and Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL-
CIO, Local Union No. 594. Case 37 CA-1526
July 2, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELI.O
Upon a charge filed on March 6, 1979, by Amalga-
mated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local Union No. 594, herein
called the Union, and duly served on The Dai'ei
(USA), Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 20, issued a com-
plaint on March 12, 1979, against Respondent, alleg-
ing that Respondent had engaged in and was engag-
ing 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 proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on January 11, 1979,
following a Board election in Case 37-CA-241 1, 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 1, 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; and
that, commencing on or about February , 1979, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to supply the Union with
information about the composition of the bargaining
unit and benefits presently received by employees in
the bargaining unit. On March 20, 1979, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On March 30, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 6, 1979, the
I Official notice is taken of the record in the representation proceeding,
Case 37-RC-2411, 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
LTVElectrosystems. Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); InterOype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967):
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
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 an oppo-
sition to the Motion for Summary Judgment.
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 and in its opposition
to the Motion for Summary Judgment, Respondent
admits the request and refusal to bargain, and admits
the request and refusal to supply the Union with cer-
tain information concerning employees in the bar-
gaining unit.2 However, Respondent asserts that the
Union's certification is invalid because of unlawful
participation of supervisors in the Union's organiza-
tional campaign. In this regard, Respondent points
out that in the underlying representation proceeding
it was not afforded a hearing on its objections involv-
ing the alleged supervisory participation, and it re-
quests a hearing at this time. In his Motion for Sum-
mary Judgment and memorandum in support.
counsel for the General Counsel contends that Re-
spondent raises no issues which were not considered
in the underlying representation proceeding, that
there exists no factual issue litigable before the Board,
and that, therefore, no hearing is required. We agree
with counsel for the General Counsel.
Our review of the record herein, including the rec-
ord in Case 37- RC-2411, indicates that on June 29,
1978, the Union filed a petition in which it sought to
represent certain of Respondent's employees. On Au-
gust 28, 1978, an election was conducted pursuant to
a Stipulation for Certification Upon Consent Election
which resulted in a vote of four to three in favor of
the Union. Thereafter. Respondent filed timely objec-
tions to conduct affecting the results of the election
alleging impermissible supervisory sponsorship of the
election petition. After an investigation of the objec-
tions, the Regional Director for Region 20 issued a
Report on Objections in which she recommended that
2 The information requested was a list of the names, addresses, classifica-
tions, rates of pay, and number of dependents of each employee in the unit.
a list of all present benefits received by the employees in the appropriate
unit, and the share of the cost paid by employees for such benefits. It is well
settled that the collective-bargaining representative is entitled to information
relevant to its discharge of its collective-bargaining obligation. Verrol Divi-
sion, Boeing Company, 182 NLRB 421 (1970). Certain information, specifi-
cally wage and related information pertaining to employees in the bargain-
ing unit, is presumptively relevant to the collective-bargaining
representative's statutory duty to represent employees. N L.R.B. v. Curriss-
Wright Corporation. Wright Aeronautical Division. 347 F.2d 61 (3d Cir 1965)
243 NLRB No. 48
275
DI)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
the objections be overruled in their entirety and that a
certification of representative issue.
Thereafter, Respondent filed exceptions to the Re-
gional Director's report. On January 11, 1979, the
Board, having considered the Regional Director's re-
port and the Respondent's exceptions thereto,
adopted the findings and conclusions of the Regional
Director and certified the Union as the exclusive bar-
gaining representative in the appropriate unit.
In adopting the Regional Director's recommenda-
tion that Respondent's objections be overruled in
their entirety, the Board necessarily found that there
were no substantial or material issues warranting a
hearing.3 Respondent now raises those same issues
raised in the representation case in an attempt to ob-
tain a hearing herein. It is well settled however that
there is no requirement that an evidentiary hearing be
held where there are no substantial or material is-
sues.4 Accordingly, it appears that Respondent is try-
ing to relitigate issues previously litigated in the rep-
resentation case.5
In the absence of newly discovered or previously
unavailable evidence or special circumstances a re-
spondent in a proceeding alleging a violation of Sec-
tion 8(a)(5) is not entitled to relitigate issues which
were or could have been litigated in a prior represen-
tation proceeding.6
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 representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
3 Prestolite Wire Division, Eltra Corporation, 225 NLRB (1976); Pointe
Enterprises Inc., 223 NLRB 822 (1976).
Janler Plastic Mold Corporation, 191 NLRB 162 (1971).
In addition to alleging unlawful supervisory participation in the Union's
campaign, Respondent also stated in its answer to the complaint that the
unit is inappropriate. However, Respondent stated this only as part of its
argument that the Union is not the lawful representative of Respondent's
employees by virtue of the alleged supervisory intervention. Indeed, Respon-
dent admitted that the unit is appropriate in another section of its answer
and Respondent does not contend that the unit is inappropriate in its oppo-
sition to the Motion for Summary Judgment. Accordingly, it does not appear
that Respondent is now seeking to raise the appropriateness of the unit as an
issue.
In any event, the unit is one to which the parties stipulated, and Respon-
dent did not raise the issue of appropriate unit in its objections to the elec-
tion. Just as Respondent cannot relitigate the issue of supervisory participa-
tion in the Union's organizational campaign, which was already litigated and
resolved in the representation proceeding, it cannot now litigate the issue of
appropriate unit which could have been litigated in the underlying represen-
tation case.
6See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c).
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FA('T
1. THE BUSINESS OF RESPONDENT
The Dai'ei (USA), Inc., an Hawaii corporation, is
engaged in the grocery retail sales business on the
Island of Oahu. During the past calendar year, Re-
spondent received gross revenues in excess of
$500,000, and purchased and received goods valued
in excess of $50,000 from points located outside the
State of Hawaii.
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.
11. TItE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO, Local Union No. 594,
is a labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. 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 regular full-time and regular part-time em-
ployees in the meat and fish departments in Re-
spondent's Oahu store, including meatcutters,
meat wrappers, and fish cutters, but excluding all
office clerical employees, grocery, produce and
liquor department employees, guards and/or
watchmen, professional employees, and supervi-
sors as defined in the Act.
2. The certification
On August 28, 1978, 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 20, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
276
THE DAI'EI (USA), INC.
lective-bargaining representative of the employees in
said unit on January 11, 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 Refusal
Commencing on or about January 17, 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, and has requested
that Respondent supply it with information about the
composition of the bargaining unit and benefits pres-
ently received by employees in the bargaining unit.7
Commencing on or about February 1, 1979, and con-
tinuing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and bar-
gain with the Union as the exclusive representative
for collective bargaining of all employees in said unit.
Also commencing on or about February 1., 1979, and
continuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to supply the
Union with the requested information, which is rel-
evant to the Union's duties as bargaining representa-
tive of the employees in said unit.
Accordingly, we find that Respondent has, since
February 1, 1979, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees and has refused
to supply the Union with requested relevant informa-
tion. By such refusals, 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 I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and lead to labor dis-
putes 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-
' As indicated, supra, the Union requested Respondent to furnish it with a
list of the names. addresses, classifications, rates of pay, and number of
dependents of each employee in the unit. a list of all benefits received by the
employees in the unit, and the share of the cost paid by employees for the
benefits.
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.
We shall further order that Respondent, upon re-
quest, supply the Union with the requested informa-
tion.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc.. 136 NLRB
785 (1962); Commerce Company d/b/la Lamar Hotel,
140 NRLB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction 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
I. The Dai'ei (USA), Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, Local Union No.
594, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All regular full-time and regular part-time em-
ployees in the meat and fish departments in Respon-
dent's Oahu store, including meatcutters, meat wrap-
pers, and fish cutters, but excluding all office clerical
employees, grocery, produce and liquor department
employees, guards and/or watchmen, professional
employees, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
4. Since January 11, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about February , 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-
277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent in the appropriate unit, and to supply it
with requested information, 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, 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)(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 Rela-
tions Board hereby orders that the Respondent, The
Dai'ei (USA), Inc., Oahu, Hawaii, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL
CIO, Local Union No. 594, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All regular full-time and regular part-time em-
ployees in the meat and fish departments in Re-
spondent's Oahu store, including meatcutters,
meat wrappers, and fish cutters, but excluding all
office clerical employees, grocery, produce and
liquor department employees, guards and/or
watchmen, professional employees, and supervi-
sors as defined in the Act.
(b) Refusing to furnish the Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO, Local Union No. 594, with information
pertaining to the unit composition and benefits cur-
rently received by members of the unit.
(c) 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Upon request, bargain collectively with the
above-named labor organization by furnishing the
said labor organization with the information re-
quested pertaining to unit employees and their bene-
fits.
(c) Post at the Oahu store copies of the attached
notice marked "Appendix. "s Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) 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.
g 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 Amal-
gamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Local Union No.
594, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT refuse to furnish the above-
named Union with information necessary and
relevant to the Union's performance of its collec-
tive-bargaining functions.
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
278
THE [)AI'EI (USA), INC.
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All regular full-time and regular part-time em-
ployees in the meat and fish departments in
the Oahu store, including meatcutters. meat
wrappers, and fish cutters, but excluding all
office clerical employees, grocery, produce and
liquor department employees, guards and/or
watchmen, professional employees, and super-
visors as defined in the Act.
WE WILL furnish the Union with information
concerning the composition of the unit and bene-
fits currently received by members of the unit, as
requested.
THI DAI'EI (USA), INC.
279