Pay Less Drug of Pendleton, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 296 (N.L.R.B. 1973)

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pay Less Drug of Pendleton , Inc. and Retail Clerks
Union Local No. 1612 , affiliated with Retail Clerks
International Association , AFL-CIO. Case 36-
CA-2357
April 30, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
Upon a charge filed on November 7, 1972, by Re-
tail Clerks Union Local No. 1612, affiliated with Re-
tail Clerks International Association, AFL-CIO,
herein called the Union, and duly served on Pay Less
Drug of Pendleton, Inc., herein called the Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region
19, issued a complaint on December 11, 1972, 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 Adminis-
trative 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 October 6, 1972,
following a Board election in Case 36-RC-2895 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commencing
on or about October 6, 1972, and at all times thereaf-
ter, 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 19, 1972, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On January 8, 1973, counsel for the General Coun-
sel filed directly with the Board a Motion for Summa-
ry Judgment. Subsequently, on January 16, 1973, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
Offtual notice is taken of the record in the representation proceeding,
Case 36- RC 2895, as the term "record " is defined in Secs 10268 and 102
69(f) of the Board's Rules and Regulations , Series 8. as amended See L I I
hlecirosvstems , Inc, 166 NLRB 938, enfd 388 I- 2d 683 (CA 4, 1968)
Golden Age Beverage ( o, 167 NLRB 151, enfd 415 F 2d 26, 32 (C A 5,
1969), Intertype Co v Penello, 269 r Supp 573 (D C Va , 1967 ). Fullest
Corp, 164 NLRB 378, cnfd 397 h 2d 91 (C A 7, 1968), Sec 9 ( d) of the
NLRA.
not be granted. Respondent thereafter filed a re-
sponse 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 and in its response
to the Notice To Show Cause, Respondent contends
that by reason of the acts and conduct of the Union
prior to the election, the certification of the Union
was invalid and that evidence sought by the Respon-
dent in support of its objections to the election was
made unavailable to it at the hearing on objections.
We do not agree.
A review of the entire record in Case 36-RC-2895
reveals that an election conducted pursuant to a Stip-
ulation for Certification Upon Consent Election re-
sulted in a vote of 15 to 11 in favor of the Union.
Respondent filed timely objections to conduct affect-
ing the results of the election alleging that the Union
made material misrepresentations of provisions of
wage stabilization laws and of various provisions of a
contract with a sister corporation of the Respondent;
that it sought information on wage rates and other
matters in a coercive and intimidating manner; and
that it made false statements regarding present em-
ployee benefits and Respondent's practices and inten-
tions. After an investigation, the Regional Director
found that the issues could best be resolved by a hear-
ing and issued a Report on Objections and Direction
of Hearing. After a hearing in which all parties par-
ticipated, the Hearing Officer issued his Report on
Objections in which he found all of Respondent's ob-
jections devoid of merit and recommended that they
be overruled in their entirety and that the Board issue
a Certification of Representative.
Thereafter Respondent filed timely exceptions to
the Hearing Officer's Report on Objections and a
supporting brief in which, after reiterating the argu-
ments raised in its objections, it argued that the hear-
ing should be reopened to receive in evidence
statements from employees taken by a union repre-
sentative, ostensibly to support possible unfair labor
practice charges. In its Decision and Certification of
Representative issued on October 6, 1972, the Board
adopted the findings, conclusions, and recommenda-
tions of the Hearing Officer and certified the Union.
In its Statement in Opposition to Motion for Summa-
ry Judgment Respondent renews its contention made
in the representation proceeding that it is entitled to
203 NLRB No. 10
PAY LESS DRUG OF PENDLETON
the statements elicited from employees.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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. 2
All issues raised by the Respondent in this proceed-
ing 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 Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is an Oregon corporation which oper-
ates a retail drug and variety store at Pendleton, Ore-
gon. During the past year, Respondent, in the
operation of its Pendleton store, did a gross volume of
business in excess of $500,000, and received goods
valued in excess of $50,000 directly from points out-
side the State of Oregon or from suppliers who ob-
tained the goods directly from outside the State of
Oregon.
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 effectu-
ate the policies of the Act to assert jurisdiction herein.
11 THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local No. 1612, affiliated with
Retail Clerks International Association , AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
297
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees of the Employer's 301 S. Main,
Pendleton, Oregon store, excluding the store
manager, confidential employees, pharmacists,
professional employees, guards and supervisors
as defined in the Act.
2. The certification
On April 27, 1972, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 19, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on October 6, 1972, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
On or about October 12 and 24, 1972, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about October 12, 1972, 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 representative for collective bargaining
of all employees in said unit.
Accordingly, we find that the Respondent has,
since October 12, 1972, and at all times thereafter,
refused 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 practic-
es within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
2 See Pittsburgh Plate Glass Co v N L R B. 3I3 U. S 146, 162 (1941).
Rules and Regulations of the Board. Secs 102 67(f) and 102.69(c)
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and substantial relationship to trade, traffic, and com-
merce 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 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce 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. Pay Less Drug of Pendleton, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks Union Local No. 1612, affiliated
with Retail Clerks International Association, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees of the Employer's 301 S. Main.
Pendleton, Oregon, store, excluding the store manag-
er, confidential employees, pharmacists, 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 October 6, 1972, the above-named labor
organization has been and now is the certified and
exclusive 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 October 12, 1972, 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 Respon-
dent 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, 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 Rela-
tions Board hereby orders that Respondent , Pay Less
Drug of Pendleton , Inc., Pendleton , Oregon, 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 condi-
tions of employment with Retail Clerks Union Local
No. 1612, affiliated with Retail Clerks International
Association , AFL-CIO, as the exclusive bargaining
representative of its employees in the following appro-
priate unit:
All employees of the Employer 's 301 S. Main,
Pendleton , Oregon store , excluding the store
manager , confidential employees , pharmacists,
professional employees , 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 store in Pendleton , Oregon , copies of
the attached notice marked "Appendix ." 3 Copies of
said notice, on forms provided by the Regional Direc-
J 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 "
PAY LESS DRUG OF PENDLETON 299
tor for Region 19, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent imniediately 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 19, 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 , upon request , bargain with the above-
named Union , as the exclusive representative 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 agreement. The
bargaining unit is:
All employees of the Employer 's 301 S. Main,
Pendleton , Oregon store, excluding the store
manager , confidential employees , pharma-
cists, professional employees , guards and su-
pervisors as defined in the Act.
Dated By
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Retail
Clerks Union Local No. 1612, affiliated with Re-
tail Clerks International Association, AFL-CIO,
as the exclusive representative of the employees
in the bargaining unit described below.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
PAY LESS DRUG OF PENDLETON,
Inc.
(Employer)
(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, 310 Six Ten Broadway Building, 610
SW. Broadway, Portland, Oregon 97205, Telephone
503-221-3085.