Lorenz Schneider Co., Inc.

National Labor Relations Board - Board Decisions

Feb 22, 1974

209 N.L.R.B. 190 (N.L.R.B. 1974)

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lorenz Schneider Co., Inc. and Independent Route-
men's Association. Case 29-CA-3459
February 22, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENhLLO
Upon a charge filed on June 28, 1973, by
Independent Routemen's Association, herein called
the Union, and duly served on Lorenz Schneider Co..
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 29, issued a
complaint on July 12, 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 May 29, 1973,
following a Board election in Case 29-RC-1980 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about June 6, 1973, 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 July 24, 1973, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On August 6, 1973. counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 14,
1973, 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
i Official notice is taken of the record in the representation proceeding,
Case 29-R('-1980 as the term "record" is defined to Secs 10268 and
102 69(f) of the Board's Rules and Regulations, Series 8, as amended. See
LJ V Elecirosytrcros, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4. 1968),
Golden Age Beverage Co, 167 NLRB 151, enfd. 415 F 2d 26 (C A 5, 1969).
lntertype Co v Penello, 269 1- Supp. 573 (D.C Va, 1967), Follett Corp, 164
NLRB 378, entd 397 F2d 91 (C.A 7, 1968), Sec. 9(d) of the NLRA
2 On November 9, 1973, Respondent filed with the Board a determina-
tion of the Internal Revenue Service, mole fully descnbed in In 5. below
On November 21, 1973. the Union filed a response thereto. On December
10, 1973. Respondent filed a request to reopen the proceedings accoinpa-
nied by the statements of two of the distributors to which the Union also
filed a response Respondent's request to reopen the proceeding is hereby
Cause, entitled "Statement in Opposition to Motion
of General Counsel for Summary Judgment and
Respondent's Cross Motion for Summary Judg-
ment. "2
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 7 HE MOTION FOR SUMMARY
JUDGMENT
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent contends
that the complaint should be dismissed and the
Certification of Representative issued in Case
29-RC-1980 should be revoked because the Board
erred in certain determinations made therein, and
that, contrary to those determinations, the distribu-
tors involved herein, also at times called driver-
salesinen, are independent contractors rather than
employees; accordingly, the unit of such distributors
is inappropriate, and the Union of such distributors
is a trade association rather than a labor organiza-
tion.3
Our review of the record in the underlying
representation case indicates that on October 3, 1972,
after a hearing, the Regional Director issued his
Decision and Direction of Election in which he
decided the above-described and other issues ad-
versely to the Respondent. Thereafter, the Respon-
dent filed a request for review in which it contended
that certain of the Regional Director's findings were
erroneous. By Order dated January 23, 1973, the
Board granted the request for review insofar as it
related to the employee status of the distributors, and
denied it in all other respects. Subsequently, on April
25, 1973, the Board issued its own Decision on
Review,' in which it affirmed the Regional Director's
findings that the distributors were employees and
remanded the case to the Regional Director to
conduct an election pursuant to his Decision and
Direction of Election. The Union having received a
majority of the votes cast in the election conducted
denied as lacking in merit
M1 Although the answer to the complaint denies the fact and date of the
filing of the charge for lack of sufficient information , the answer does admit
service or the charge and the General Counsel's Motion for Summary'
Judgment reiterates the allegations concerning the filing of the charge and
appends a copy of the charge and of the Respondent's July 10. 1973,
Statement of Position thereon However, the Respondent 's response to the
Notice I o Show Cause neither alludes to nor controverts these allegations
or the contents of the appended documents In these circumstances, we
deem Respondent to have abandoned its denials of the above-mentioned
allegations and find them to be admitted and true
a 203 NLRB No 45
209 NLRB No. 16
LORENZ SCHNEIDER CO., INC.
on May 18, 1973, the Regional Director. on May 29,
1973, certified the Union as the exclusive bargaining
representative of the employees in the appropriate
unit.
Respondent's response to the Notice To Show
Cause includes an affidavit which contains assertions
of fact at variance with the findings of fact made in
the Board's Decision on Review. However, assum-
ing that some of the assertions other than those
described in footnote 5, below, are made here for the
first time , Respondent does not contend that they are
newly discovered or previously unavailable evidence
or constitute special circumstances.
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.6
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.? We shall, accordingly,
grant the General Counsel's Motion for Summary
Judgment, and deny Respondent's Cross-Motion for
Summary Judgment and its motion to revoke the
certification.
On the basis of the entire record, the Board makes
the following:
FINDINGS OI FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Lorenz Schneider Co., Inc., is, and
has been at all times material herein, a corporation
duly organized under, and existing by virtue of, the
laws of the State of New York.
At all times material herein Respondent has
5 As noted in In 2, above . Respondent filed with the Board a ruling of
the internal Revenue Service That ruling, which was made on September
25, 1973, and amended November 1, 1973, finds the distributors involved
herein to be independent contractors While the ruling of another
Government agency is a lactor to he considered , we conclude such ruling is
insufficient to warrant a revision in our findings herein for the following
reasons ( I) Our determination was based on a record developed after a
hearing in which the parties herein were given an opportunity to present
witnesses and cross-exam ination, whereas the IRS ruling recites that it was
based on SS-it forms submitted to the IRS by Respondent and 10
distributors , (2) our ruling, which was based on a fully developed record,
contains one crucial finding that is at variance with the IRS finding.
namely, that distributors -eceived instructions in other than their training
periods, (3) the IRS ruling issued on September 25. 1973, which was almost
191
maintained its principal office and place of business
at 2000 Plaza Avenue, in the town of New Hyde
Park, county of Nassau, State of New York. and a
warehouse located in the town of Riverhead, county
of Suffolk, State of New York, where it is, and has
been at all times material herein, engaged in the sale
and distribution of food products and related
products.
During the past year, which period is representative
of its annual operations generally, Respondent, in
the course and conduct of its business, purchased
and caused to be transported and delivered to its
place of business, potato chips, pretzels, nuts, and
other goods and materials valued in excess of $50,000
of which goods and materials valued in excess of
$50.000 were transported and delivered to its places
of business in interstate commerce directly from
States of the United States other than the State in
which it is located.
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. IIIE LABOR ORGANIZATION INVOI.\'ED
Independent Routemen's Association is a labor
organization within the meaning of Section 2(5) of
the Act.
III. IHE UNPAIR 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 distributors employed by Respondent,
exclusive of all office clerical employees, ware-
house employees, all other employees, guards and
supervisors as defined in Section 2(11) of the Act.
4 months after our Decision on Review herein and more than a year after
our hearing was held , made no mention of either our Decision or the record
developed in the representation case, and (4) lastly, this case is unlike
Imperial Garden Growers. 91 NLRB 1034, and Pan American World Airways,
Inc. 115 NLRB 493, where the Board there deferred to the rulings of other
departments or agencies which it considered to have primary jurisdiction in
a field In the circumstances previously noted, we conclude that the IRS
ruling should not be considered as controlling
6 See Pittsburgh Plate Glass Co v is L R B., 313 U S 146, 162 (1941);
Rules and Regulations of the Board, Sees . 102 67( f) and 102 69(c).
' As the Respondent filed no answer to pars 2. 3 . 4. and 5 of the
complaint concerning the Respondent's corporate status, its business,
commerce data, and status as an employer engaged in commerce under the
Act, the allegations are deemed to be admitted and found to be true
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On May 18, 1973, 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 29 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 May 29, 1973. and the Union
continues to he 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 June 1 , 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 June 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 June 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.
IV. 1IIE EFF1iCi' 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 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. TEtt; 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.
1964), cert . denied 379 U.S. 817 ( 1964); Burnett
Construction Company. 149 NLRB 1419 , 1421. 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:
CON(LUSIONS OF LAW
1. Lorenz Schneider Co., inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Independent Routemen's Association is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All distributors employed by Respondent,
exclusive of all office clerical employees, warehouse
employees, all other employees, guards and supervi-
sors as defined in Section 2(11) of the Act constitute
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since May 29, 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 June 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.
LORENZ SCHNEIDER CO., INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Lorenz Schneider Co., Inc., Hyde Park and River-
head, New York, 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 Independent Route-
men's Association as the exclusive bargaining repre-
sentative of its employees in the following appropri-
ate unit:
All distributors employed by Respondent,
exclusive of all office clerical employees, ware-
house employees, all other employees, guards and
supervisors as defined in Section 2(11) of 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 Hyde Park, New York, office and
Riverhead, New York, warehouse copies of the
attached notice marked "Appendix."8 Copies of said
notice, on forms provided by the Regional Director
for Region 29 after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and he maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including 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 29, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
s 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
193
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOI refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inde-
pendent Routemen's Association as the exclusive
representative of the employees in the bargaining
unit described below.
WL 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 distributors employed by Respondent,
exclusive of all office clerical employees,
warehouse employees, all other employees,
guards and supervisors as defined in Section
2(11) of the Act.
LORENZ SCHNEIDER CO.,
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, 16 Court Street, Fourth Floor,
Brooklyn, New York 11201, Telephone
212-596-3535.