J.L.P. Vending Co., Inc.

National Labor Relations Board - Board DecisionsApr 12, 1976

223 N.L.R.B. 863 (N.L.R.B. 1976)

J.L.P. VENDING CO. J.L.P. Vending Co., Inc . and Teamsters Local 158, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 4-CA-7666 April 12, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on October 29, 1975, as amended on November 7, 1975, by Teamsters Local 158, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on J.L.P. Vending Co., Inc., herein called the Respondent, the Acting General Counsel, herein called General Counsel, of the National Labor Relations Board, by the Acting Regional Director for Region 4, issued a complaint on November 28, 1975, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hear- ing 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 June 23, 1975, fol- lowing a Board election in Case 4-RC-11279, 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 July 30, 1975, and at all times there- after, 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 December 4, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 12, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 23, 1976, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause 'Official notice is taken of the record in the representation proceeding, Case 4-RC-11279, 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. 863 why the General Counsel's Motion for Summary Judgment should not be granted. Respondent failed to file 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, Respondent denies only the propriety of the Union's representative sta- tus and certification established in the underlying representation case and the conclusionary allegations of the complaint. Review of the record herein, including the record in Case 4-RC-11279, reveals that, pursuant to a Stip- ulation for Certification Upon Consent Election, an election was held on November 26, 1974. The tally of ballots disclosed nine for and eight against the Union, with one ballot ruled void, leaving determina- tive the one ballot challenged on the ground that it was cast by a supervisor. Thereafter, the Union filed a timely objection to the conduct of the election, al- leging that the Board agent's decision voiding a "Yes" ballot was improper. After investigation, the Regional Director on February 28, 1975, issued his Report and Recommendations on Objections and Challenged Ballot. Therein, the Regional Director found that the ballot had been properly voided and recommended that the Union's objection be over- ruled, and, further, that the challenge to the alleged supervisor's ballot be overruled and that the ballot be opened and counted. The Union filed timely exceptions to the Regional Director's recommendations with respect to the void ballot and the challenged ballot and a brief in sup- port thereof. On June 23, 1975, the Board issued its Decision and Certification of Representative (218 NLRB 794), in which it rejected the Regional Director's recommendation that the ballot had been properly voided and, therefore, counted the ballot as a valid vote in favor of the Union. As the revised tally showed that the challenged ballot was no longer determinative of the election, the Board certified the Union as the exclusive collective-bargaining repre- sentative in the stipulated appropriate bargaining unit. 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 223 NLRB No. 117 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. We shall, accordingly, 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 THE RESPONDENT Respondent is, and has been at all times material herein, a New Jersey corporation engaged in the op- eration of a vending machine business. During the past year, Respondent's gross annual income from its sales exceeded $500,000. During the same period, Respondent purchased goods valued in excess of $50,000 from firms located outside the State of New Jersey. We find on the basis of the foregoing that Respon- dent 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 Teamsters Local 158, a/w International Brother- hood of Teamsters , Chauffeurs , Warehousemen & 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: 2See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146. 162 (1941): Rules and Regulations of the Board , Secs. 102.67(1) and 102.69(c). All driver-salesmen , commissary workers, warehousemen, truck and machine mechanics, excluding all office clerical employees, supervi- sors, watchmen, and guards as defined in the Act. 2. The certification On November 26, 1974, a majority of the employ- ees of Respondent in said unit in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 4 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 June 23, 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 July 29, 1975, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about July 30, 1975, 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 representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 30, 1975, 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, 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 J.L.P. VENDING CO. 865 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 (1952); 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. J.L.P. Vending Co., Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 158 a/w 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 driver-salesmen , commissary workers, ware- housemen, truck and machine mechanics, excluding all office clerical employees, supervisors, watchmen, and guards 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 June 23, 1975, 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 30, 1975, and at all times thereafter to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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, 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)(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 Re- lations Board hereby orders that Respondent, J.L.P. Vending Co., Inc., Egg Harbor, New Jersey, 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 con- ditions of employment with Teamsters Local 158, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All driver-salesmen, commissary workers, warehousemen, truck and machine mechanics, excluding all office clerical employees, supervi- sors, watchmen, and guards 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 Egg Harbor, New Jersey, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Re- gional Director for Region 4, 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3In 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. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 4, in writing , within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Local 158, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, as the exclusive rep- resentative 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 driver-salesmen, commissary workers, warehousemen, truck and machine mechan- ics, excluding all office clerical employees, su- pervisors, watchmen, and guards as defined in the Act. J.L.P. VENDING CO., INC.