Aaron Brothers Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1976

223 N.L.R.B. 1179 (N.L.R.B. 1976)

AARON BROTHERS CORP.
Aaron Brothers Corp. and Teamsters, Automotive
Workers Local 495 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America . Case 31-CA-5614
April 30, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS , AND PENELLO
Upon a charge filed on September 22, 1975, by
Teamsters, Automotive Workers Local 495, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, herein called the
Union, and duly served on Aaron Brothers Corp.,
herein called the Respondent, the Acting General
Counsel of the National Labor Relations Board,
herein called General Counsel, by the Regional Di-
rector for Region 31, issued a complaint and notice
of hearing on October 15, 1975, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor 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. Cop-
ies of the charge, complaint, and notice of hearing
before an Administrative Law 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 September 4, 1974,
following a Board election in Case 31-RC-3083 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about September 17, 1975, and at all times
thereafter, 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.
On November 4, 1975, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On December 22, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 2,
1976, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
'Official notice is taken of the record in the representation proceeding,
Case 31-RC-3083, 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 Electrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va.. 1967):
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7. 1968); Sec.
9(d) of the NLRA.
1179
Judgment should not be granted. Respondent there-
after filed a response to 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 and response to the
Notice To Show Cause, Respondent admits all oper-
ative factual averments of the complaint but denies
the majority status of the Union and the validity of
the certification on the basis of its objections to the
election and the Board's refusal to utilize its subpena
powers to investigate such objections or to grant Re-
spondent a hearing on its objections. The General
Counsel contends that since all material issues have
been previously decided by the Board or admitted in
Respondent's answer to the complaint there are no
issues requiring a hearing and that summary judg-
ment is, therefore, appropriate. We agree with the
General Counsel.
An examination of the entire record, including the
record in Case 31-RC-3083, reveals that in an elec-
tion conducted on April 4, 1975, pursuant to a Stipu-
lation for Certification Upon Consent Election of ap-
proximately 16 eligible voters 15 cast ballots, of
which 14 were for the Union, I was against the
Union, and none was challenged. Respondent filed
timely objections to the Union's conduct affecting
the results of the election, alleging, in substance, that
the Union had campaigned within 100 feet of the
polling booth; that employees who demonstrated
prounion attitudes stood in groups in the polling area
and directed epithets to prospective voters; that the
Union promised employees that if they signed au-
thorization cards or voted for the Union customary
initiation fee and dues would be waived; that the
Union cannot fairly represent employees because its
officers, agents, and employees are not representative
of minority groups and its international does not
have officers, agents, and employees representative
of minority groups. After an investigation, the Re-
gional Director issued on June 13, 1975, a Report on
Objections in which he concluded that they raised no
substantial or material issues which warrant setting
aside the election; that they be overruled in their en-
tirety; and that the Union be certified. Respondent
filed a timely request for review of the Regional
Director's report, requesting a hearing on the objec-
tions. On September 4, 1975, the Board issued its De-
cision and Certification of Representative in which it
223 NLRB No. 169
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopted the findings and recommendations of the
Regional Director and certified the Union.
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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
With its answer to the complaint, Respondent sub-
mitted an application for taking of depositions which
was denied by an order of the Regional Director,
dated November 10, 1975. Respondent thereafter re-
quested special permission to appeal from the Re-
gional Director's order denying its application to
take depositions. In a telegraphic communication of
December 5, 1975, the Board denied Respondent's
request for special permission to appeal . In its re-
sponse to the Notice To Show Cause, Respondent
argues (1) that the General Counsel's Motion for
Summary Judgment is premature because a hearing
on the issues dealing with its election objections must
first be held; and (2) that the Regional Director's
authority delegated under Section 102.30 of the
Board 's Rules and Regulations to rule on applica-
tions for depositions violates the Administrative Pro-
cedure Act (5 U.S.C. §551) and due process by com-
mingling prosecution and adjudication functions. On
appeal to the Board from the Regional Director's
conclusion that its objections raised no substantial
and material issues which warranted setting aside the
election the Respondent requested a hearing thereon.
In adopting the Regional Director's report, the
Board found that there were no issues requiring a
hearing. Further, considering the Administrative
Procedure Act in the light of the provisions of our
Act, we do not find that the delegation to Regional
Directors to consider , in the first instance , applica-
tions for depositions with a subsequent appeal to the
Board either offends the Administrative Procedure
Act or due process. Accordingly, we shall grant the
General Counsel's Motion for Summary Judgment.
'See Pittsburgh Plate Glass Co. v. N. L.R.B., 313 U .S. 146. 162 ( 1941):
Rules and Regulations of the Board , Secs. 102.67(1) and 102 .69(c).
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation with its of-
fice and principal place of business in Los Angeles,
California, where it operates a chain of art supply
stores. Respondent annually purchases and receives
goods and services valued in excess of $50,000 direct-
ly from suppliers located outside the State of Califor-
nia. Respondent annually derives gross revenues in
excess of $500,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
If. THE LABOR ORGANIZATION INVOLVED
Teamsters, Automotive Workers Local 495, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor or-
ganization 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 the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All warehouse employees, including truckdri-
vers employed by Respondent at its store locat-
ed at 940 Orange Drive, Los Angeles, Califor-
nia; but excluding all other employees,
including office clerical employees, guards, and
supervisors as defined in the Act.
2. The certification
On April 4, 1975, 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 31 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
AARON BROTHERS CORP. 1181
the collective-bargaining representative of the em-
ployees in said unit on September 4, 1975, and the
Union continues 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 September 8, 1975, and
at all times thereafter , the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective -bargaining representative of all the
employees in the above-described unit . Commencing
on or about September 17, 1975, and continuing at
all times thereafter to date , the Respondent has re-
fused , 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.
Accordingly, we find that the Respondent has,
since September 17, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above , occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate , and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes 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-
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.
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 commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record , makes the following:
. CONCLUSIONS OF LAW
1. Aaron Brothers Corp., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Teamsters, Automotive Workers Local 495, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All warehouse employees, including truckdri-
vers, employed by Respondent at its store located at
940 Orange Drive, Los Angeles, California; but ex-
cluding all other employees , including office clerical
employees , guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since September 4, 1975, the above-named la-
bor 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 17, 1975,
and at all times thereafter , to bargain collectively
with the above-named labor organization as the ex-
clusive 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, Respondent
has interfered with , restrained, and coerced, and is
interfering with, restraining, and coercing , employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(l) 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 Re-
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations Board hereby orders that Respondent, Aaron what steps have been taken to comply herewith.
Brothers Corp., Los Angeles, 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 con-
ditions of employment with Teamsters, Automotive
Workers Local 495, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All warehouse employees, including truckdri-
vers, employed by Respondent at its store locat-
ed at 940 Orange Drive, Los Angeles, Califor-
nia; but excluding all other employees,
including office clerical employees, guards, and
supervisors as defined in the Act.
(b) 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its office and plant at 900 Orange
Drive, Los Angeles, California, copies of the at-
tached notice marked "Appendix." J Copies of said
notice, on forms provided by the Regional Director
for Region 31, 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 no-
tices to employees are customarily posted. Reason-
able 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 31, in
writing, within 20 days from the date of this Order,
3 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
Teamsters, Automotive Workers Local 495, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, as
the exclusive representative of the employees in
the bargaining unit described below.
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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All warehouse employees, including truck-
drivers, employed by Respondent at its store
located at 940 Orange Drive, Los Angeles,
California; but excluding all other employees,
including office clerical employees, guards,
and supervisors as defined in the Act.
AARON BROTHERS CORP.