Tractor Supply Co.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 745 (N.L.R.B. 1978)

TRACTOR SUPPLY CO.
Tractor Supply Co. and Retail Clerks International
Union, Local No. 10, AFL-CIO. Case 25-CA 9852
September 29, 1978
DECISION AND ORDER
BY CHAIRMNAN FANNING AND MEMBERS MURPHY
AND TRUE SDAI.E
Upon a charge filed on May 8, 1978, by Retail
Clerks International Union, Local No. 10, AFL-CIO,
herein called the Union, and duly served on Tractor
Supply Co., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 25. issued a com-
plaint and notice of hearing on May 18, 1978, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the charge,
complaint. and notice of hearing before an Adminis-
trative lIaw Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on April 27, 1978, fol-
lowing a Board election in Case 25 RD-530. 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 May 1, 1978, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
May 25. 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint and requesting that the
complaint be dismissed. On June 2, 1978, Respondent
filed an amendment to its answer.
On June 27, 1978, counsel for the General Counsel
filed directly with the Board a motion to strike por-
tions of Respondent's answer and a Motion for Sum-
mary Judgment. Subsequently, on July 12, 1978, 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-
J Official notice is taken of the record in the representation proceeding,
Case 25 RD 530. 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
LTI' Electrosnsrenm. Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4,
19681: Golden 4ge Reverage Co., 167 NI.RB 151 (1967). enfd 415 F2d 26
(C A. 5, 1969); Intertipe C,, s Penello. 269 F.Supp. 573 (D.(CVa.. 1967);
Follttrr Corp. 164 NI.RB 378 (1967). enfd. 397 F 2d 91 (C.A. 7, 1968). Sec.
9(d) of the NLiRA, as amended.
sponse to Notice To Show Cause entitled "Opposition
to 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 opposition to the Motion for Summary Judg-
ment, the Respondent contended that: (I) the Board
failed to consider the Respondent's evidence that the
prestrike jobs of Charles Bojrab and Alice Gibson
were abolished, thus terminating their right to recall
and voting eligibility; (2) the Board failed to consider
the fact that Charles Bojrab was offered a substan-
tially equivalent job with the Respondent on April 29,
1977, 4 months prior to the underlying election, and
refused to accept it, thus ending his voting rights: (3)
the Board's determination that replaced former eco-
nomic strikers are eligible to vote after termination of
a strike is contrary to the Act; (4) the Board erred by
not ordering a hearing in the representation case to
resolve the conflicting factual claims and did not al-
low the parties full opportunity to present evidence:
and (5) the Board should reconsider its decision in the
representation case. The General Counsel contends
that Respondent is attempting to relitigate matters
which were or could have been considered and dis-
posed of in the prior representation proceeding.
Review of the record herein reveals that in Case
25 RD 530 as election was held on August 19, 1977,
pursuant to a Stipulation Upon Consent Election,
which showed that of 20 ballots cast 7 were for and 9
against the Union, with 4 determinative challenged
ballots. Thereafter, the Union filed timely objections
to conduct affecting the results of the election. The
Regional Director conducted an investigation and, on
September 23, 1977, issued and duly served on the
parties his Report on Objections to Conduct Affecting
Results of Election and Challenged Ballots, Recom-
mendations to the Board, and Order Directing Hear-
ing. In his report, the Regional Director recommend-
ed that certain of the Union's objections be overruled,
that certain challenged ballots be opened. and, if the
opening of the challenged ballots did not result in the
certification of the Union, that a hearing be con-
ducted with respect to the remaining objections. The
Respondent filed exceptions to the Regional Direc-
tor's decision, together with a brief in support thereof
and a supplemental statement in support of excep-
tions. The Board adopted the Regional Director's rec-
ommendation and on March 20, 1978, issued its Deci-
238 NLRB No. 99
745
DECISIONS OF NATIONAI LABOR REL.ATIONS BOAR[)
sion, Direction, and Order.2 Thereafter, the
Respondent filed with the Board a motion for recon-
sideration, which was rejected by the Board because
it was not timely filed. On April 18, 1978, the chal-
lenged ballots were opened and a revised tally of bal-
lots issued, which showed that. of 19 valid votes
counted, 10 were for and 9 against the Union. On
April 27, 1978, the Union was certified as the collec-
tive-bargaining representative of the employees in the
appropriate unit.
Following a request by the Union on or about
April 27, 1978, and continuing to date, that Respon-
dent meet with it as the exclusive representative for
the purpose of bargaining collectively with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment in the unit
found appropriate in Case 25-RD 530, Respondent
has refused to bargain with the Union since May 1,
1978, basing such refusal on its contention that the
Union was improperly certified in Case 25 RD 530
because the ballots of ineligible employees were
counted and that it was wrongfullys denied a hearing.
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.'
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.
We shall, accordingly, grant the Motion for Summary
Judgment.4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FA(I
I. I tl BUSINESS OF()I RSPONI)EN I
Respondent. a Delaware corporation with an office
and principal place of' business located in Chicago,
Illinois, and various other facilities in several States of
the United States, including Fort Wayne, Indiana,
herein called the facility, is engaged at said facility
2 235 NLRB No. 53
'See Pittsburgh Plate hGla¥ ( , s N VRB.. 313 L.S
14
6. 162 (1941):
Board's Rules and Regulations, Secs. 102.67(1') and 102.69(c).
4 'he General ('ounsel's motion to strike portions of Rcspondenlts .llnSwer
is denied.
and location in the sale and distribution of light farm
equipment and supplies and related products. During
the 12 months preceding the issuance of the com-
plaint, Respondent purchased, transferred, and deliv-
ered to the facility goods and materials valued in ex-
cess of $50,000, which were transported to the facility
directly from States other than the State of Indiana,
and manufactured, sold, and shipped from the facility
finished products valued in excess of $50,000 directly
to points outside the State of Indiana.
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. TIHE. I.ABOR OR(GANIZA 'I(ON INVO()ILVE)
Retail Clerks International Union. Local No. 10,
AFL. CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
111. 1iii TNFAIR ILABOR PRA("I T S
A. 7i1' Rcprerentatiuon Proceedilng
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 full-time and part-time employees of the Em-
ployer at its 2112 W. Coliseum Boulevard, Fort
Wayne, Indiana, facility: but excluding all pro-
tessional employees, all store managers. all
assistant store managers, all mail order supervi-
sors, all guards and supervisors as defined in the
Act.
2. 1The certification
On August 19. 1977, at a decertification election, a
majority of the employees of Respondent in the unit
described above designated the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondent. The Union was certified as the col-
lective-bargaining representative of' the employees in
said unit on April 27, 1978, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Requesv To Bargain antr Respondent'd S Refisall
Commencing on or about April 27, 1978, and at all
times thereafter, the Union has requested Respondent
746
TRACTOR St PPI.Y CO.
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
May 1. 1978, 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
May 1, 1978, and at 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 en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
I\. Hli FF('I ( I I ( l t. NiAIR i.ABOR PRA( I'i(' S
IT PON ( O()MMI R(i
The activities of Respondent set fbrth 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. iiii Ri1MIEI)Y
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) oft 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.
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-.lac Poultry ('omplatir , Inc.. 136 NL RB
785 (1962): Commerce Company d1/h/ta lamar Hotel,
140 NKRB 226, 229 (1962). enfd. 328 F.2d 600 (C.A.
5, 1964). cert. denied 379 U.S. 817 (1964): Burnett
('onstructiol (Comatpani. 149 NlRB 1419, 1421 (1964).
enF'd. 350 F.2d 57 (C'A. 10, 1965).
The Board. upon the basis of the foregoing faicts
and the entire record, makes the following:
(C()ONiSIONS o() LAW
1. Tractor Supply Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Retail Clerks International Union, Local No.
10, AFL (CIO. is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and part-time employees of the
Employer at its 2112 WV. Coliseum Boulevard, Fort
Wayne, Indiana, facility, but excluding all profes-
sional employees, all store managers, all assistant
store managers, all mail order supervisors, all guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Since April 27, 1978. the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 May 1, 1978, 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)(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)( I ) 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, Trac-
tor Supply Co., Fort Wayne, Indiana, 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 Retail Clerks Interna-
tional Union, I ocal No. 10, AFI CIO, as the exclu-
sive bargaining representative of' its employees in the
lollowing appropriate unit:
All full-time and part-time employees of the Em-
ployer at its 2112 W. Coliseum Boulevard, Fort
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wayne, Indiana, facility; but excluding all pro-
fessional employees, all store managers, all
assistant store managers, all mail order supervi-
sors, all guards and supervisors as defined in the
Act.
In any like or related manner interfering with, re-
straining, 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) Post at its Fort Wayne, Indiana, facility copies
of the attached notice marked "Appendix."5 Copies
of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days 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 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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
NoT rcE To EMPLOYEES
POSTED BY ORDER OF TIHE
NAIIONAL LABOR REL.ATIONS 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 Retail
Clerks International Union, Local Union No. 10,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE Wil.L. NOI 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 wllli, 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 agree-
ment. The bargaining unit is:
All full-time and part-time employees of the
Employer at its 2112 W. Coliseum Boulevard,
Fort Wayne, Indiana, facility; but excluding
all professional employees, all store managers,
all assistant store managers, all mail order su-
pervisors, all guards and supervisors as defined
in the Act.
TRACTOR SUPPLY CO.
748