Unitog Co.

National Labor Relations Board - Board Decisions

Dec 8, 1980

253 N.L.R.B. 614 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS IOARI)
Unitog Company and General Drivers and
Warehousemen Local Union No. 534, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of Amer-
ica. Case 17-CA-9813
December 8, 1980
DECISION AND ORDER
BY MI MBLRS J:NKINS, PNEI O, ANI)
TRUI SI)AI.E
Upon a charge filed on July 25, 1980, by General
Drivers and Warehousemen Local Union No. 534,
affiliated with nternational Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, and duly served
on Unitog Company, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 17,
issued a complaint and notice of hearing on August
20, 1980, against Respondent, alleging that Re-
spondent 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 2, 1980,
following a Board election in Case 17-RC-8885,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about July 17, 1980, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to recognize and to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On August
29, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On September 22, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September
25, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
' Official notice is taken of he record in Ihe representation proceed-
ing, Case 17-RC-8885, as the term "record" is defined in Secs. 102.68
and 102 69(g) o the Board's Rules and Regulations, Series 8, as amended
See LI'V leciroystems. Inc., 166 NLRB 938 (1967), enfd. 38 F 2d 683
(4th Cir 1968); Golden Age) Beverage Co., 167 NLRB 151 (1967), enfd 415
F 2d 26 (5th Cir 1969). Interrype Co. v. Pencllo, 269 F Supp 573
(D) C.Va 1967); rboleh Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91
(7th Cir 1968) Sec 9(d) of Ihe NLRA, as amended
253 NLRB No. 79
mary Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National l.abor 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 Respondent ad-
mitted that the Union was certified as the exclusive
bargaining representaive of the employees in the
appropriate unit, and that the Union requested it to
bargain with respect to rates of pay, wages, hours,
and other terms and conditions of employment. Re-
spondent also admitted that it has failed and re-
fused to recognize and to bargain with the Union
as the exclusive bargaining representative of its em-
ployees. It denied that the Union was the exclusive
representative of the employees in the unit. Re-
spondent asserted in its answer to the complaint
and in its reply to the Notice To Show Cause that
the election in the underlying representation pro-
ceeeding was invalid because of the Union's objec-
tionable conduct and that a hearing on its objec-
tions should have been held. It also asserted that its
arguments in support of its defense were presented
to the Regional Director during the course of the
investigation of the objections, and to the Board in
its exceptions to the Regional Director's Report on
Objections. Respondent specifically asserts that rel-
evant statements from a number of individuals, as
well as documentary evidence, were given to the
Regional Director during the investigation of the
objections but that the Regional Director failed to
transmit said evidence to the Board.
Review of the record herein, including the
record in Case 17-RC-8885, reveals that on De-
cember 12, 1979, the Regional Director approved
the parties' Stipulation for Certification Upon Con-
sent Election in a unit of all full-time and regular
part-time clerical employees at Respondent's War-
rensburg, Missouri, facility. Subsequently, on Janu-
ary 18, 1980, in a secret-ballot election, a majority
of the unit employees designated the Union as their
collective-bargaining representative.
On January 25, 1980, Respondent filed timely
objections to the election. Subsequently the Re-
gional Director conducted an investigation of these
objections. In his Report on Objections the Region-
al Director recommended that the objections be
overruled in their entirety and that the Union be
certified by the Board as the bargaining representa-
tive for the unit employees.
614
UNI0(i C()MPANY
On March 5, 1980), Respondent filed exceptions
to the Regional Director's Report on Objections
with argument in support thereof. Respondent
argued that the Regional D)irector had failed to
consider certain written statements submitted to
him by Respondent, and now argues that the Board
has never considered that evidence, although it
does not now specify such evidence. On July 2,
1980, the Board issued a Decision and Certification
of Representative"2 finding in effect that Respond-
ent provided no evidence to support its bare asser-
tions that such written statements contained any
evidence of objectionable conduct and adopting the
Regional Director's recommendations and finding
that the exceptions raised no material or substantial
issues warranting a hearing.: On or about July 9,
1980, the Union by letter requested Respondent to
bargain collectively with it as the exclusive collec-
tive-bargaining representative of its employees in
the appropriate unit with respect to their rates of
pay, wages, hours of employment, and other terms
and conditions of employment. On or about July
17, 1980(), Respondent failed and refused to recog-
nize and bargain with the Union. It thus appears
that Respondent is attempting in this proceeding to
relitigate issues fully litigated and finally deter-
mined in the representation proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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 proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
Not reported n volules if Hoard i)eDilins,
a Member Periello agreed Ihat the misrepresentation Illeged in Ihe ob-
jectiolns did il waarranrit sctllnig asid the lection hbut did so fir the rea-
sons set firrlh il Shopping Karl t,,id .firAci In. 228 NlRB 1311 1'77)
As noted n his dlssenting opinioin (ieneral Kntil ,r ( ah/lrnia. In. 231
N I.R 619 (1978). Memer Penelli con ,rlnue Iio adhere I, the principles
anntounced iii Shopping Aarl
4 See Phurgh P/a, (Giia , L(; R. R. 113 U S 14h It,2 (1)411
Rules and Regulatiols of the Biard, Sete I)2 67() and 12 6hq(c)
FINDIN(iS )I FC,,c
1. 'I11. HBUSINI SS (01 RISP'ONI)I.NI
Respondent, a State of Missouri corporation, is
engaged in the production and distribution of uni-
forms at various facilities, including a facility locat-
ed at Warrensburg, Missouri, herein called the fa-
cility. Respondent, in the course and conduct of its
business operations within the State of Missouri,
annually purchases goods and services valued in
excess of $50,(XX) directly from sources located out-
side the State of Missouri.
We find, on the basis of the foregoing, that Re-
spondent 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. TrH I ABO)R OR(iANIZATION IN\11 't : l)
General Drivers and Warehousemen Iocal
Union No. 534, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemenl &
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
1it. THE UNFAIR AOR PRACTICIES
A. 7he Representation Proceeding
I. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time clerical em-
ployees in the Customer Service and Distribu-
tion departments at the Unitog Company's
Warrensburg, Missouri, facility, but excluding
confidential employees, professional employ-
ees, guards and supervisors as defined in the
Act.
2. The certification
On January 18, 1980, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 17 designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on July 2, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
61S
I)ECISI()NS O)F NATII)NAL LABO()R REI.ATIONS BOARD
B. he Request To Bargain and Respondent's
Rcefu.sal
Commencing on or about July 9, 1980, and at all
times thereafter, the Union has requested Respond-
ent to recognize it and to bargain collectively with
it as the exclusive collective-bargaining representa-
tive of all the employees in the above-described
unit. Commencing on or about July 17, 1980, and
continuing at all times thereafter to date, Respond-
ent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in said unit.
Accordingly, we find that Respondent has, since
July 17, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE IFFCT[ OF THE UNFAIR LABOR
PRACTICFS UPON COMMERCE
The activities of Unitog Company 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 commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. TIHI REMEI)Y
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction 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:
CONCIUSIONS O: LAW
I. Unitog Company is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. General Drivers and Warehousemen Local
Union No. 534, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time clerical em-
ployees in the Customer Service and Distribution
departments at the Unitog Company's Warrens-
burg, Missouri, facility, but excluding confidential
employees, professional employees, guards and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since July 2, 1980 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 July 17, 1980, and at
all times thereafter, to bargain collectively 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Unitog Company, Warrensburg, Missouri, its offi-
cers, 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 General Drivers
and Warehousemen Local Union No. 534, affiliated
UNITOG COMPANY
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time clerical em-
ployees in the Customer Service and Distribu-
tion departments at the Unitog Company's
Warrensburg, Missouri, facility, but excluding
confidential employees, professional employ-
ees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Warrensburg, Missouri, facility
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 17, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
: Il thc c Cit Ihill this ()rdcr is tCllrirrcd h\ iL Judgmenti I L i lUnilcd
Stiatc Cot r of Appca lk Ihe words I the i ll(, Ictidlllg 'o,led h)
Order o Ihec Nalltial I ahalr Rlallns oard" hill read "',otcd Puru-
anl It( i JllilglTrllt f th tited SI .t (Courtl o Appeal I'itoictig 11
()rdcorof lIht Nat mi l I ahbo R .lulimlls H trd
(c) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICIt To EMPI OY[PES
PosrTI) BY ORI)DR 01: THL
NATIONAl LABOR RlI ATIONS BOARD
An Agency of the United States Government
WE Wil.I NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with General Drivers and Warehousemen
Local Union No. 534, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the
exclusive representative of the employees in
the bargaining unit described below.
Wt: Will NOI in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
Wi. wi , upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of enmployment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time clerical
employees in the Customer Service and Dis-
tribution departments at the Unitog Compa-
ny's Warrensburg, Missouri facility, but ex-
cluding confidential employees, professional
employees, guards and supervisors as de-
fined in the Act.
UNITo); COM PANY
617