West Coast Liquidators, Inc.

National Labor Relations Board - Board Decisions

May 27, 1982

261 N.L.R.B. 1081 (N.L.R.B. 1982)

WEST COAST LIQUIDATORS
West Coast Liquidators, Inc. and Freight Handlers,
Clerks & Helpers Local 357, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 21-
CA-20943
May 27, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on January 21, 1982, by
Freight Handlers, Clerks & Helpers Local 357, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on West Coast
Liquidators, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 21,
issued a complaint on March 4, 1982, against Re-
spondent, alleging, as later amended, that Respond-
ent 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, and the amendment to the complaint, were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
16, 1981, following a Board election in Case 21-
RC-16762, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate; 2 and that, commencing on or about September
I The original complaint in this case concerns charges alleging both a
general refusal to bargain by Respondent on and after September 24,
1981, as well as allegations concerning an unfair labor practice strike.
However, on March 19, 1982, the Regional Director issued an amend-
ment to the complaint in which he deleted pars. 10(a) and (b) in their
entirety. All allegations concerning the unfair labor practice strike in the
original complaint were found in those deleted paragraphs. Consequentiy,
the Motion for Summary Judgment-and thus the matter here before the
Board-concerns only allegations that since on or about September 24,
1981, Respondent has violated Sec. 8(a)(5) and (1) of the Act by refusing
to bargain collectively with the Union as the exclusive representative of
the employees in the appropriate unit We find no merit, therefore, to Re-
spondent's contention, raised in its response to the Notice To Show:
Cause, that the Board, despite the General Counsel's withdrawal of the
complaint's unfair labor practice strike allegations, should decide the issue
of the unfair labor practice strike at this time. Prior to the hearing, the
regional director issuing the complaint, on behalf of the General Counsel,
has the discretion to amend any complaint upon such terms as may be
deemed just National Labor Relations Board Rules and Regulations,
Series 8, as amended, Sec. 102 17.
2 Official notice is taken of the record in the representation proceed-
ing, Case 21-RC 16762, 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 LTV Electrosystemsr 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); Intertype Co. v. Penello, 269 F.Supp. 573
24, 1981, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On March
15, 1982, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On March 26, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 2,
1982, 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-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
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 allegations con-
cerning the request and refusal to bargain, Re-
spondent admits that it refused to recognize the
Union. Further Respondent does not dispute the
authenticity of either the letter dated September 16,
1981, in which the Union made a formal demand
on Respondent to bargain with it concerning the
employees in the appropriate unit, or the letter
dated September 24, 1981, in which Respondent in-
formed the Union that Respondent was denying its
request to bargain. 3 Thus, we find that there is no
substantial or material issue concerning the request
to bargain by the Union or Respondent's subse-
quent refusal to do so. However, in its answer to
the complaint and in its opposition to the Motion
for Summary Judgment, Respondent asserts that
the Union's certification is invalid because of un-
lawful threats and bribes of employees made by
Union "agents" in the Union's organizational cam-
paign. In this regard, Respondent points out that in
the underlying representation proceeding it was not
afforded a hearing on its objections including the
allegations concerning the "agency status" of cer-
tain employees, and it requests a hearing at this
time. In his Motion for Summary Judgment and ar-
(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.
3 Nor does Respondent dispute the authenticity of a letter from the
Union dated November 19, 1981, containing a second formal demand for
bargaining or the authenticity of the December 2, 1981, letter from Re-
spondent in which it again informed the Union that Respondent was
denying its request for bargaining
261 NLRB No. 154
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gument in support, counsel for the General Coun-
sel contends that Respondent raises no issues which
were not considered in the underlying representa-
tion 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
record in Case 21-RC-16762, reveals that follow-
ing a hearing before a hearing officer of the Na-
tional Labor Relations Board, the Regional Direc-
tor for Region 21, on July 7, 1981, issued a Deci-
sion and Direction of Election in which the appro-
priate unit for collective bargaining was found to
consist of:
All warehouse employees, pricers, fork lift op-
erators, order pullers, sorters, line feeders, in-
ventory employees and shipping and receiving
employees employed by [Respondent] at its fa-
cility located at 20640 Fordyce, Carson, Cali-
fornia; excluding all other employees, office
clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
On August 13, 1981, an election by secret ballot
was conducted under the direction and supervision
of the Regional Director for Region 21 among the
employees of Respondent in the unit found appro-
priate. The tally of ballots shows that of approxi-
mately 43 eligible voters, 23 cast ballots for, and 14
against, the Petitioner. There was one challenged
ballot, a number insufficient to affect the results.
On August 20, 1981, Respondent timely filed ob-
jections to the election. On September 16, 1981, the
Regional Director for Region 21 issued a Supple-
mental Decision and Certification of Representa-
tive overruling Respondent's objections in their en-
tirety and certifying the Union as the exclusive col-
lective-bargaining representative of the employees
in the appropriate unit. On September 29, 1981, Re-
spondent timely filed a request for review of the
Regional Director's Supplemental Decision and
Certification of Representative which was denied
by the Board, by telegram dated November 6,
1981. In denying Respondent's request for review,
the Board necessarily found that there were no
substantial or material issues warranting a hearing.
Respondent now raises those same issues raised in
the representation case in an attempt to obtain 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
issues of fact.4 Accordingly, it appears that Re-
4 Janler Plastic Mold Corporation, 191 NLRB 162 (1971).
spondent is trying to relitigate issues previously liti-
gated in the representation case.
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.5
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:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
West Coast Liquidators, Inc., a California corpo-
ration, has been engaged in wholesaling and distri-
bution at its facility located at 20640 Fordyce,
Carson, California. In the course and conduct of its
business operations, Respondent annually purchases
and receives goods and products valued in excess
of $50,000 directly from suppliers located outside
the State of California.
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.
II1. THE LABOR ORGANIZATION INVOLVED
Freight Handlers, Clerks & Helpers Local 357,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section
2(5) of the Act.
* See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102 67(f) and 102.69(c).
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WEST COAST LIQUIDATORS
III. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
1. 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 warehouse employees, pricers, fork lift op-
erators, order pullers, sorters, line feeders, in-
ventory employees and shipping and receiving
employees employed by [Respondent] at its fa-
cility located at 20640 Fordyce, Carson, Cali-
fornia; excluding all other employees, office
clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
2. The certification
On August 13, 1981, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 21, 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 September 16, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about September 16, 1981,
and at all times thereafter, including November 19,
1981, the Union has requested Respondent to bar-
gain collectively with it as the exclusive collective-
bargaining representative of all the employees in
the above-described unit. Commencing on or about
September 24, 1981, and continuing at all times
thereafter to date, including December 2, 1981, Re-
spondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
September 24, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 I ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, 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. THE REMEDY
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:
CONCI USIONS OF LAW
1. West Coast Liquidators, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Freight Handlers, Clerks & Helpers Local 357,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All warehouse employees, pricers, fork lift op-
erators, order pullers, sorters, line feeders, inven-
tory employees and shipping and receiving employ-
ees employed by [Respondent] at its facility located
at 20640 Fordyce, Carson, California; excluding all
other employees, office clerical employees, guards,
professional employees, and supervisors as defined
in the Act, constitute a unit appropriate for the
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since September 16, 1981, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about September 24, 1981,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, 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,
West Coast Liquidators, Inc., Carson, California,
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
conditions of employment with Freight Handlers,
Clerks & Helpers Local 357, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All warehouse employees, pricers, fork lift op-
erators, order pullers, sorters, line feeders, in-
ventory employees and shipping and receiving
employees employed by [Respondent] at its fa-
cility located at 20640 Fordyce, Carson, Cali-
fornia; excluding all other employees, office
clerical employees, guards, professional em-
ployees, 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 20640 Fordyce, Carson, California,
facility copies of the attached notice marked "Ap-
pendix." 6 Copies of said notice, on forms provided
by the Regional Director for Region 21, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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 21,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
' 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L ahor Relations Board"
APPENDIX
NoIICE TO EMPIOYEES
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 Freight Handlers, Clerks & Helpers
Local 357, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT 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.
WE WILL, 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
1084
WEST COAST LIQUIDATORS
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All warehouse employees, pricers, fork lift
operators, order pullers, sorters, line feeders,
inventory employees and shipping and re-
ceiving employees employed by us at our fa-
cility located at 20640 Fordyce, Carson,
California; excluding all other employees,
office clerical employees, guards, profession-
al employees, and supervisors as defined in
the Act.
WES'I COAST LIQUIDATORS, INC.
1085