Loewy Drug Co.

National Labor Relations Board - Board Decisions

May 2, 1977

229 N.L.R.B. 408 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loewy Drug Company, Inc. and District No. 12,
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 5-CA-8305
May 2, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on December 9, 1976, by
District No. 12, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, herein
called the Union, and duly served on Loewy Drug
Company, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 5, issued
a complaint and notice of hearing on January 4,
1977, against Respondent, alleging that Respondent
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, 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
complaint alleges in substance that on October 6,
1976, following a Board election in Case 5-RC-9665,
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about December 1, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On January 10, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint. Respondent admitted that it met
the Board's jurisdictional standards and that the
Union is a labor organization within the meaning of
the Act. It denied that on October 6, 1976, the Board
certified the Union as the collective-bargaining
representative of the employees in the unit found
appropriate and that on November 17, 1976, the
Union requested and is requesting that Respondent
bargain collectively with respect to wages, rates of
pay, and other terms and conditions of employment.
Respondent denied the allegation that it has failed
and refused, and continues to fail and refuse, to meet
Official notice is taken of the record in the representation proceeding,
Case 5-RC-9665, as the terms "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosysterms, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
229 NLRB No. 63
and bargain in good faith with the Union and it
further denies the conclusory 8(a)(1) and (5) allega-
tions. Respondent alleges that it was wrongfully
denied a hearing with respect to substantial and
material factual issues raised during the course of
postelection proceedings.
On January 21, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 8,
1977, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter 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
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 and its response to
the Notice To Show Cause, Respondent attacks the
Union's certification on the basis of preelection
conduct which Respondent alleges improperly influ-
enced the results of the election. Respondent con-
tends, in its Notice To Show Cause, that a "substan-
tial turnover" of employees in the voting unit raises a
factual issue which necessitates resolution at a
hearing.
Review of the record herein reveals that in Case 5-
RC-9665 the petition was filed by the Union on
April 12, 1976, and on May 11, 1976, the Regional
Director approved a Stipulation for Certification
Upon Consent Election. On May 18, 1976, the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, Local 570,
requested approval to appear on the ballot as an
Intervenor. The request was granted, and on May 26,
1976, the Regional Director approved a Stipulation
for Certification Upon Consent Election. On June
16, 1976, the Regional Director conducted an
election. The tally of ballots showed that, of
approximately 89 eligible voters, 43 cast ballots for
the Union and 2 cast ballots for the Intervenor.
There were 41 valid ballots cast against participating
labor organizations. There were two challenged
ballots sufficient to affect the results of the election.
The Union filed objections to conduct affecting the
election results on June 22, 1976, and Respondent
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Interlype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Folleit Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the N LRA, as amended.
408
LOEWY DRUG CO.
filed objections to conduct affecting the election
results on June 23, 1976. The Regional Director
issued his report on objections and challenges on
August 2, 1976, recommending that one challenge be
sustained and one be overruled and that the
objections be overruled. On August 12, 1976,
Respondent filed exceptions to the Regional Direc-
tor's report, and on October 6, 1976, the Board issued
its Decision and Certification of Representative, in
which it adopted the Regional Director's findings
and recommendations in his report on objections
and challenges and certified the Union as the
exclusive bargaining representative of the employees
in the appropriate unit.
Following a request by the Union on or about
November 17, 1976, that Respondent bargain collec-
tively in good faith with respect to wages, rates of
pay, hours, and other terms and conditions of
employment, Respondent refused to recognize and
bargain in good faith with the Union as the exclusive
bargaining representative of its employees in the
certified unit. Respondent has refused to bargain
with the Union since December 1, 1976.
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings but must present specific facts which
demonstrate that there are material facts at issue
which require a hearing.2 Respondent in the instant
case presented no material facts not admitted or
previously denied.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
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 Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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.4 We there-
fore find that 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:
2 Western Electric Company, 198 NLRB 623 (1972).
3 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).
4 Respondent's contention that there exists newly discovered evidence is
without merit. All the evidence referred to in Respondent's opposition to the
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Maryland corporation, is engaged
in the warehousing and wholesale distribution of
drugs, pharmaceuticals, candy, and related products.
During the 12 months preceding the issuance of the
complaint, a representative period, Respondent
purchased and received, in interstate commerce,
materials and supplies valued in excess of $50,000
from points located outside the State of Maryland.
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 the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
District No. 12, International Association of
Machinists and Aerospace Workers, AFL-CIO, 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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time warehouse
employees employed by the Employer at its
Baltimore, Maryland, location, including truck-
drivers, warehouse order takers, pickers and
packers, medical equipment order takers, invento-
ry control room employees, order processing
room employees, cash and receipt room employ-
ees, returned goods room employees, shipping,
and receiving employees, warehouse floater-lead
employees and leadmen; excluding all office
clerical employees, salesmen, buyers, employees
employed by Custom Kit Company, guards and
supervisors as defined in the Act.
2. The certification
On June 16, 1976, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
General Counsel's Motion for Summary Judgment has been raised and duly
considered by the Board. Respondent's contention that there is a "factual"
issue raised by turnover of unit employees has no basis in law, Postelection
turnover among unit employees is no basis for setting aside an election. See
Ray Brooks v. N. LRKB., 348 U.S. 96 (1954).
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 5, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on October 6, 1976, 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 November 17, 1976, and
at all times thereafter, the Union has requested
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 December 1, 1976, and
continuing at all times thereafter to date, 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 Respondent has, since
December 1, 1976, 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
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Loewy Drug Company, Inc., set
forth in section III, above, occurring in connection
with its operations described in section I, 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
commerce.
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
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 (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);
Burnett 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. Loewy Drug Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District No. 12, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time warehouse
employees employed by the Employer at its Balti-
more, Maryland, location, including truckdrivers,
warehouse order takers, pickers and packers, medical
equipment order takers, inventory control room
employees, order processing room employees, cash
and receipt room employees, returned goods room
employees, shipping and receiving employees, ware-
house floater-lead employees and leadmen; exclud-
ing all office clerical employees, salesmen, buyers,
employees employed by Custom Kit Company,
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 October 6, 1976, 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 December 1, 1976, 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.
410
LOEWY DRUG CO.
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 the Respondent,
Loewy Drug Company, Inc., Baltimore, Maryland,
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 District No. 12,
International Association of Machinists and Aero-
space Workers, AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All full-time and regular part-time warehouse
employees employed by the Employer at its
Baltimore, Maryland, location, including truck-
drivers, warehouse order takers, pickers and
packers, medical equipment order takers, invento-
ry control room employees, order processing
room employees, cash and receipt room employ-
ees, returned goods room employees, shipping
and receiving employees, warehouse floater-lead
employees and leadmen; excluding all office
clerical employees, salesmen, buyers, employees
employed by Custom Kit Company, 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 6801 Quad Avenue, Baltimore, Mary-
land, copies of the attached notice marked "Appen-
dix."5 Copies of said notice, on forms provided by
the Regional Director for Region 5, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 District
No. 12, International Association of Machinists
and Aerospace Workers, AFL-CIO, 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 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 full-time and regular part-time ware-
house employees employed by the Employer
at its Baltimore, Maryland, location, includ-
ing truckdrivers, warehouse order takers,
pickers and packers, medical equipment
order takers, inventory control room em-
ployees, order processing room employees,
cash and receipt room employees, returned
goods room employees, shipping and receiv-
ing employees, warehouse floater-lead em-
ployees and leadmen; excluding all office
clerical employees, salesmen, buyers, em-
ployees employed by Custom Kit Company,
guards and supervisors as defined in the Act.
LOEWY DRUG COMPANY,
INC.
411