Chemvet Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1974

208 N.L.R.B. 844 (N.L.R.B. 1974)

844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chcmvet Laboratories, Inc. and Department Store,
Package, Grocery, Paper House, Liquor, and Meat
Drivers, Helpers and Warehousemen , Local Union
955, affiliated with the International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and
Helpers of America . Case 17-CA-5659
January 31, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on June 11, 1973, by
Department Store, Package, Grocery, Paper House,
Liquor, and Meat Drivers, Helpers and Warehouse-
men, Local Union 955, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, and duly served on Chemvet Laboratories,
Inc.. herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 17, issued a
complaint on August 24, 1973, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 1,
1973, following a Board election in Case
17-RC-6839 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; I
and that, commencing on or about March 6, 1973,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On September 6, 1973.
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On September 24, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 4,
1973, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
I Official notice is taken of the record in the representation proceeding,
Case 17-RC-6839, as the term "record" is defined in Secs. 102 68 and
102.69(f) of the Board's Rules and Regulations , Series 8, as amended See
LTV Electro iystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C.A. 4, 1968);
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent has filed no response to the Notice to Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 denies
the validity of the certification herein, and the
Union's status as collective-bargaining representative
of the employees in the stipulated unit. Our review of
the record herein indicates that pursuant to a
Stipulation for Certification Upon Consent Election
an election was conducted on April 17, 1972. The
tally of ballots revealed that of approximately 9
eligible employees 4 cast valid ballots for, and 4
against, the Union. A ninth ballot, which was
determinative of the election, was cast by Connie Sue
Ellis, but challenged on the ground that she had been
discharged shortly before the election. Ellis' dis-
charge became the subject of a charge and complaint
in Case 17-CA-5095 and, on May 30, 1972, the
Regional Director issued his Order consolidating the
representation case with Case 17-CA-5095. After
hearing, on October 19, 1972, the Administrative
Law Judge issued his Decision, in which he found
that Ellis' discharge was unlawful, ordered her full
and immediate reinstatement, and recommended
that the challenge to her ballot be overruled and that
her ballot be opened and counted. On February 8,
1973, the Board issued its Decision, Order, and
Direction and adopted in relevant part the findings,
conclusions, and recommendations of the Adminis-
trative Law Judge.2
Thereafter, the Regional Director opened and
counted Ellis' challenged ballot. The revised tally
showed that five valid ballots had been cast for the
Union. As the Union had received a majority of the
votes and there were no objections to the election,
the Regional Director, on March 1, 1973, certified
the Union. It thus appears that Respondent's denial
of the validity of the certification and the Union's
exclusive representative status is an attempt to
relitigate an issue litigated in the underlying repre-
sentation case and this it may not do.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
Golden Age Beverage Co, 167 NLRB 151, enfd 415 F.2d 26 (C A. 5, 1969),
Intertvpe Co v Penello, 269 F Supp. 573 (D C.Va., 1967). Follett Corp, 164
NLRB 378, enfd. 397 F.2d 91 (C.A 7, 1968 ); Sec. 9(d) of the NLRA.
2 201 NLRB 734. modified in other respects by 204 NLRB No. 40.
208 NLRB No. 128
CHEMVET LABORATORIES 845
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.3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered 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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
In its answer, the Respondent has also denied the
allegations of the complaint that the Union has
requested bargaining and that Respondent has
refused to do so. Attached to the Motion for
Summary Judgment are photocopies of four letters,
with signed return receipts, the texts of which are
identical with those of the letters of March 6, April
18, May 14, and May 16, 1973, alleged in the
complaint as escablishing the request and refusal to
bargain. As noted above, Respondent has failed to
file a response to the Notice To Show Cause. As the
contents of the attached letters, with signed return
receipts, have thus not been controverted, they stand
admitted. These letters establish the allegations of
the complaint that the Union has requested bargain-
ing, but that Respondent has refused to do so by
failing to honor the Union's requests because of its
desire to test the certification in the court of appeals.
Therefore, Respondent's denials of these allegations
are stricken as sham and the allegations are deemed
to have been admitted and are found to be true.
Accordingly, we shall grant the General Counsel's
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
$50,000 directly from sources outside the State of
Missouri.
In the course and conduct of its business opera-
tions at the facility, the Respondent annually sells
goods and services valued in excess of $50,000
directly to customers located outside the State of
Missouri.
We find, on the basis of the foregoing, that
Respondent 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. THE LABOR ORGANIZATION INVOLVED
Department Store, Package, Grocery, Paper
House, Liquor, and Meat Drivers, Helpers and
Warehousemen, Local Union 955, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective -bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All employees of Chemvet Laboratories, Inc.,
working at its principal place of business located
at 1647 Broadway , Kansas City, Missouri , exclud-
ing office clerical employees , professional em-
ployees, guards, and supervisors as defined in the
Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, Respondent Chemvet
Laboratories, Inc., a Missouri corporation, has been
engaged in the manufacture of veterinary products at
its facility located at 1647 Broadway, Kansas City,
Missouri.
In the course and conduct of its business opera-
tions at the facility, the Respondent annually
purchases goods and services valued in excess of
2. The certification
On April 17, 1972, a majority of the employees 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 bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 1, 1973, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
3 See Pittsburgh Plate Class Co v N L R B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 6, 1973, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about March 6, 1973, and continuing
at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since March 6, 1973, 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, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
I'V. TIIE EFFECT OF IHE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
111, above, occurring in connection with its opera-
tions described in section 1, 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
obstructing commerce and the free flow of com-
merce.
V. IHF. 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
appropriate unit will be accorded the services of their
selected 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: Commerce Company d/b/a Lamar Hotel,
140 NLRB 226 , 229, enfd . 328 F.2d 600 (C.A. 5),
cert . denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Chemvet Laboratories , Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Department Store , Package , Grocery, Paper
House , Liquor , and Meat Drivers , Helpers and
Warehousemen , Local Union 955, affiliated with the
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All employees of Chemvet Laboratories, Inc.,
working at its principal place of business located at
1647 Broadway , Kansas City, Missouri . excluding
office clerical employees , professional 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 March 1, 1973, 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 March 6 , 1973, 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 practices
within the meaning of Section 8 (a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with , restrained, and coerced, and
is interfering with , restraining , and coercing , employ-
ees 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
meaning of Section 8(a)(1) 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
Relations Board hereby orders that Respondent,
Chemvet Laboratories, Inc., Kansas City, Missouri,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
CHEMVET LABORATORIES
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Department Store,
Package, Grocery, Paper House, Liquor, and Meat
Drivers, Helpers and Warehousemen, Local Union
955, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All employees of Chemvet Laboratories, Inc.,
working at its principal place of business located
at 1647 Broadway, Kansas City, Missouri, exclud-
ing office clerical employees, professional em-
ployees, 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 Kansas City, Missouri, facility copies
of the attached notice marked "Appendix."4 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 thereaft-
er, in conspicuous places, including all places where
notices 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 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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
847
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 De-
partment Store, Package, Grocery, Paper House,
Liquor, and Meat Drivers, Helpers and Ware-
housemen, Local Union 955, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and 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.
WF WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described 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 employees of Chemvet Laboratories,
Inc., working at its principal place of
business located at 1647 Broadway, Kansas
City, Missouri, excluding office clerical
employees, professional employees, guards,
and supervisors as defined in the Act.
CHEMVET LABORATORIES,
INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , 616-Two Gateway Center , Fourth At
State , Kansas City, Kansas 64101. Telephone
816-374-4518.