Mca Distributing Corp.

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1173 (N.L.R.B. 1988)

MCA DISTRIBUTING CORP. 1173
MCA Distributing Corporation and United Electri-
cal, Radio and Machine Workers of America,
UE Local 1421, affiliated with United Electri-
cal, Radio and Machine Workers of America
(UE). Case 31-CA-16607
May 31, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
Upon a charge filed by the Union on June 23,
1987, the General Counsel of the National Labor
Relations Board issued an amended complaint
against MCA, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
.The complaint alleges that on November 7, 1986,
the Union filed a unit clarification petition in which
it sought to include the job classification of recep-
tionist in the bargaining unit. On December 29,
1986, the Regional Director issued a Decision and
Clarification of Bargaining Unit which included the
job classification of receptionist in the bargaining
unit. (Official notice is taken of the record in Case
31-UC-216.) The complaint further alleges that
since May 6, 1987, the Respondent has refused to
bargain with the Union. On September 18, 1987,
the Respondent filed its answer admitting in part
and denying in part the allegations in the com-
plaint.
On December 4, 1987, the General Counsel filed
a Motion for Summary Judgment. On December 8,
1987, the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent's answer denied that the Union
has requested it to bargain regarding the bargaining
unit, and denies that it has refused to bargain col-
lectively with the Union regarding the wages and
working conditions of the receptionist position.
The Respondent also maintains that it is entitled to
a hearing in this proceeding because there was no
hearing in the underlying unit clarification pro-
ceeding. The General Counsel argues that all mate-
rial issues have been previously decided or involve
an interpretation of language in documents at-
tached to the motion. We agree with the General
Counsel.
The record, including the record in Case 31-
UC-216, shows that the Respondent and the Union
have had a collective-bargaining relationship for
approximately 40 years. Prior to the 1980-1983
contract negotiations, the parties had separate con-
tracts, one for the job classifications of warehouse
and shipping employees, and the other for the clas-
sifications of office and clerical employees. The
1980-1983 contract merged the two units.
The position of receptionist was included in the
bargaining unit until 1981 when the position was
abolished. In 1983 the position was reinstated. The
Respondent maintained that it was a confidential
position and therefore it was not obliged to accord
the position the terms and conditions of employ-
ment of a bargaining unit position.
The Union filed a unit clarification petition seek-
ing that the receptionist position be included in the
unit. The Regional Director conducted an investi-
gation and determined that the receptionist did not
supervise anyone, had no access to personnel files,
timecards, or leave records, and had no access to
any labor relations policy files. Accordingly, the
Regional Director determined that the receptionist
was not a confidential employee and did share a
community of interest with the unit employees.
The Regional Director included the position in the
bargaining unit.
On January 14, 1987, the Respondent moved to
have the record reopened. The Regional Director
denied the motion as untimely and stated that "[amn
Employer cannot be permitted to preclude an ad-
ministrative approach to the resolution [of a case]
by a recalcitrant refusal to cooperate in an adminis-
trative investigation, and then seek to reopen the
matter when an adverse decision is rendered."
The Respondent then filed a request for review
with the Board, which was denied on May 6, 1987.
On May 12, 1987, the Union sent MCA a letter
stating that as the receptionist position was in the
bargaining unit, the Respondent had to apply the
terms of the collective-bargaining agreement to the
position and give the incumbent receptionist back-
pay and contractual seniority. A grievance was
filed by the Union on May 13, 1987. On May 29,
1987, by letter, MCA informed the Union that it
thought the Board's decision was wrong and that
the grievance was inappropriate. On June 2, 1987,
the Union requested that MCA meet with it to dis-
cuss the grievance. By letter to MCA dated June
17, 1987, the Union confirmed the contents of a
June 11, 1987 phone conversation in which the Re-
spondent stated its position that the Board's deci-
sion was incorrect, and that the grievance was in-
appropriate and untimely. The letter agreed that a
meeting to discuss the grievance would be fruitless.
288 NLRB No. 128
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Through the above-described letters, we find
that the Union did request the Respondent to bar-
gain, and the Respondent refused to do so.
The Respondent argues that the Union did not
make a request for bargaining, but instead demand-
ed that it apply the existing contract terms to the
receptionist position. The Respondent maintains
that the letters do not disclose any desire on the
part of the Union to negotiate concerning the terms
and conditions of the receptionist position.
We find that through the letters and grievance
the Union did request the Respondent to bargain
regarding the wages, hours, and working condi-
tions of the receptionist. As was , the situation in
Armour & Co., 280 NLRB 824 (1986), the "se-
quence of events should have left little doubt in the
mind of a reasonable person that the -Union was in-
terested not only in ascertaining the position of Re-
' spondent, but also . . . bargaining with Respond-
ent."'
The Board has previously found that "a valid re-
quest to bargain need not be made in any particular
form . . . so long as the request clearly indicates a
desire to negotiate and bargain on behalf of the em-
ployees." Al Landers Dump Truck, 192 NLRB 207,
208 (1971).
Given the overall context of the exchange of let-
ters and the filing of , the grievance, we find that
the Union was demanding that the Respondent bar-
gain with it with respect to the terms and condi-
tions of employment of the receptionist position.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in ,a prior proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Accu-
rate Web, Inc., 279 NLRB 193 (1986); Coffee
System, 246 NLRB _ 433 -, (1979); and Section
102.67(f) of the Board's Rules and Regulations.
All representation issues raised by the Respond-
ent were or could have been litigated in the prior
unit clarification proceeding. The Respondent does
not offer to adduce at a hearing any newly discov-
ered and previously unavailable evidence, nor does
it allege any special circumstances that would re-
quire the Board to reexamine the decision made in
the unit clarification proceeding. We therefore find
that the Respondent had not raised any issue that is
properly litigable in this unfair labor practice pro-
ceeding' Accordingly, we grant the Motion for
Summary Judgment.
,
.1 280 NLRB 828
On the entire record, the Board makes the fol-
lowing -
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaivare corporation, is en-
gaged in the nonretail warehousing, distribution,
and sale of prerecorded audio and video products
at its facility in Sun Valley, California, where it an-
nually sells and ships goods or performs services
valued in excess of $50,000 directly to customers
located outside of the State of California. The Re-
spondent annually sells goods or performs services
valued in excess of $50,000 to customers or busi-
ness enterprises within the State of California. We
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. The Representative Status of the Union
The Union is the collective-bargaining represent-
ative of the employees in the following appropriate
unit:
Included: All warehouse and shipping em-
ployees and all office and clerical employees,
employed by the Employer at its Los Angeles,
Branch and Western Division offices located
at 11312 Penrose Street, Sun Valley, CA.
Excluded: All managerial, supervisory, and
I'confidential employees.
The Union is the exclusive refiresentativeThriidef--
Section 9(a) of the Act. The current bargaining
agreement is effective from September 15, 1986, to
September 14, 1989..
B. Refusal to Bargain
Since May 6, 1987, the Union has requested the
Respondent to bargain. We find that the letters be-
tween the parties and the grievance filed by the
Union on behalf of the incumbent receptionist con-
stitute a request to bargain .regarding the wages,
hours, and working conditions of the incumbent re-
ceptionist. Since May 6, 1987, the Respondent has
refused to bargain. We find that this refusal consti-
tutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after May 6, 1987, to bargain
with the Union as the exclusive collective-bargain-
MCA DISTRIBUTING CORP. 1175
ing representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.2
Having found that the Respondent unlawfully re-
fused to bargain with the Union concerning the
bargaining unit position of receptionist, we shall
order the Respondent to bargain on request with
the Union regarding the terms and conditions of
employment for the receptionist position.
The Respondent will also be ordered to post an
appropriate notice.
ORDER
The National Labor Relations Board orders that
the Respondent, MCA Distributing Corporation,
Sun Valley, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Electrical,
Radio and Machine Workers of America, UE
Local 1421, affiliated with United Electrical, Radio
and Machine Workers of America (UE) regarding
the terms and conditions of employment for the re-
ceptionist position in the bargaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union regarding
the terms and conditions of employment for the re-
ceptionist position in the bargaining unit.
2 The General counsel requested a visitatorial provision subject to the
supervision of the United States couri of appeals enforcing this Order.
Under the circumstances of this case, we find such a provision unneces-
sary See Cherokee Manse Termuta4 287 NLRB 1080 (1988).
(b) Post at its facility in Sun Valley, California,
copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Re-
gional Director for Region 31, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 If 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 Nation-
al 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United
Electrical, Radio and Machine Workers of Amer-
ica, UE Local 1421, affiliated with united Electri-
cal, Radio and Machine Workers of America (UE)
regarding the terms and conditions of employment
for the receptionist position in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment regarding
the position of receptionist.
MCA DISTRIBUTING CORPORATION