Vistar

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 36 (N.L.R.B. 2004)

343 NLRB No. 36
Vistar and General Drivers, Warehousemen and
Helpers Local Union 745. Case 16–CA–23808
September 30, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on August 13, 2004, the
General Counsel issued the complaint on August 17,
2004, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
16–RC–10529. (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 and an amended answer ad-
mitting in part and denying in part the allegations in the
complaint.
On September 13, 2004, the General Counsel filed a
Motion for Summary Judgment. On September 16,
2004, 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.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification based on its objec-
tions to conduct alleged to have affected the results of the
election and the Board’s disposition of certain determina-
tive challenged ballots in the representation proceeding.
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 material times, the Respondent, a Delaware cor-
poration with an office and place of business in Dallas,
Texas, has been engaged in the business of warehousing
and distribution of food products. During the 12-month
period preceding issuance of the complaint, the Respon-
dent, in conducting its business operations described
above, purchased and received at its Dallas, Texas office
goods valued in excess of $50,000 directly from points
outside the State of Texas. We find that the Respondent
is an employer engaged in commerce within the meaning
of Section 2(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 PRACTICES
A. The Certification
Following the election held October 24, 2003, the Un-
ion was certified on June 24, 2004, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
INCLUDED: All drivers employed by the Employer at
their location located at 5225 Investment Drive, Dallas,
Texas, 75236.
EXCLUDED: All other employees, including office
clericals, salespeople, warehouse employees, engineers,
and guards, including supervisors and managers 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
About June 29 and July 13, 2004, the Union, by letter,
requested the Respondent to bargain, and, since about
August 12, 2004, the Respondent has failed and refused
to do so. We find that the Respondent has thereby
unlawfully failed and refused to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after August 12, 2004, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged 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 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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, Vistar, Dallas, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with General Drivers, Ware-
housemen and Helpers Local Union 745, as the exclusive
bargaining representative of the employees in the bar-
gaining 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 exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and if
an understanding is reached, embody the understanding
in a signed agreement:
INCLUDED: All drivers employed by the Employer at
their location located at 5225 Investment Drive, Dallas,
Texas, 75236.
EXCLUDED: All other employees, including office
clericals, salespeople, warehouse employees, engineers,
and guards, including supervisors and managers as de-
fined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Dallas, Texas, copies of the attached notice
marked “Appendix.”1 Copies of the notice, on forms
provided by the Regional Director for Region 16 after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily

1 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-
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.”
posted. Reasonable steps shall be taken by the Respon-
dent 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 Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 12, 2004.
(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.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with General Drivers,
Warehousemen and Helpers Local Union 745, as the
exclusive representative of the employees in the bargain-
ing unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise 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
conditions of employment for our employees in the fol-
lowing bargaining unit:
INCLUDED: All drivers employed by us at our loca-
tion located at 5225 Investment Drive, Dallas, Texas,
75236.
EXCLUDED: All other employees, including office
clericals, salespeople, warehouse employees, engineers,
and guards, including supervisors and managers as de-
fined in the Act.
VISTAR
343 NLRB No. 36