Payless Cashway Lumber Store of South St. Paul, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1974

209 N.L.R.B. 136 (N.L.R.B. 1974)

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Payless Cashway Lumber Store of South St. Paul,
Inc. and Midwestern States Regional Council No.
IV, International Woodworkers of America,
AFL-CIO . Case 18-CA-3969
February 21, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on September 6, 1973, by
Midwestern States Regional Council No. IV, Inter-
national Woodworkers of America, AFL-CIO,
herein called the Union, and duly served on Payless
Cashway Lumber Store of South St. Paul, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 18, issued a complaint
on September 28, 1973, 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 July 24, 1973,
following a Board election in Case 18-RC-9161 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; t and that, commenc-
ing on or about August 30, 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 October 9, 1973, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On October 25, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 5,
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
Cause, entitled Opposition to Motion for Summary
Judgment.
I Official notice is taken of the record in the representation proceeding,
Case 18-RC-9161, as the term "record" is defined in Secs. 102.68 and
102.69(1) of the Board's Rules and Regulations , Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968);
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 response to the
Notice To Show Cause, the Respondent opposes the
General Counsel's Motion for Summary Judgment
on the ground that its admitted refusal to bargain
with the certified Union was justified as a matter of
law because the Board erroneously failed to set aside
the representation election on the basis of its
objections and because the Respondent erroneously
was not afforded a hearing on part of its objections.
The General Counsel argues that the Respondent is
improperly attempting to relitigate matters that were
previously raised and decided in the underlying
representation proceeding. We agree with the Gener-
al Counsel.
Our review of the record herein reflects that the
Union won the election of August 3, 1972, conducted
pursuant to a Stipulation for Certification Upon
Consent Election in Case 18-RC-9161. Thereafter,
the Respondent timely filed objections to conduct
affecting the results of the election alleging in
substance that (1) the Union misstated material facts
to which the Respondent had no opportunity to
reply; (2) the Union threatened employees; (3) the
Union intimidated employees; (4) a prominent local
person interfered with the election in an unwarranted
manner and threatened violence to an employee's
person and property; and (5) the election was
conducted in an atmosphere of fear, coercion, and
material misrepresentation. After investigation, the
Acting Regional Director issued, on October 4, 1972,
his Report and Recommendation on Objections to
Conduct Affecting the Results of the Election, Order
and Notice of Hearing, in which he recommended
that Objections 1, 2, and 3 be overruled and a
hearing be held on the issues raised by Objection 4
upon which Objection 5 was dependent.
The Respondent filed with the Board timely
exceptions to the report and a motion for special
permission to appeal from the order and notice of
hearing alleging, contrary to the Acting Regional
Director, that the Objections 1, 2, and 3 raised
substantial and material factual issues warranting a
hearing and requesting that the hearing on Objection
4 be expanded to include these issues. On January
Golden Age Beverage Co., 167 NLRB 151, 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, enfd. 397 F.2d 91 (C.A. 7, 1968): Sec. 9(d) of the NLRA.
209 NLRB No. 29
PAYLESS CASHWAY LUMBER STORE
29, 1973, the Board issued its Decision and Direction
(1) in which it adopted the Acting Regional Direc-
tor's findings, conclusions, and recommendations as
the exceptions raised no material or substantial issues
of fact and law warranting reversal of the Acting
Regional Director; and (2) in which it directed a
hearing in accordance with the Acting Regional
Director's Order and Notice of hearing.2
After a hearing in which all parties had the
opportunity to participate, the Hearing Officer
issued, on May 1, 1973, his Report and Recommen-
dations recommending that the Board overrule
Objection 4 and the portion of Objection 5 which
related to Objection 4 and that the Board certify the
Union. The Respondent filed with the Board timely
exceptions to the Hearing Officer's Report and
Recommendations in which it reiterated its excep-
tions to the Acting Regional Director's report. In its
Supplemental Decision and Certification of Repre-
sentative, of July 24, 1973, the Board adopted the
Hearing Officer's findings and recommendations and
certified the Union.
It thus appears that, in the instant proceeding, the
Respondent is attempting to relitigate issues raised
and determined adversely to it in the underlying
representation case and this it may not do herein.
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 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 Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE RUSINFSS OF TIIE RESPONDENT
Respondent, a Minnesota corporation with princi-
pal office and place of business in St. Paul,
2 On March 8, 1973, the Respondent filed with the Board a motion to
expand scope of hearing in order to take testimony and other evidence on
the issues raised by Objection 1. On March 12, 1973, the Board denied the
motion as it raised no ubstantial issues of fact or law warranting expansion
137
Minnesota, is engaged in the retail sale of building
materials and hardware. During the fiscal year
ending December 31, 1973, Respondent, in the
course of its business operation, derived gross
revenue in excess of $500,000 and purchased and
caused to be transported to its Minnesota place of
business, goods and materials valued in excess of
$50,000 directly from points located outside the State
of Minnesota.
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. THE LABOR ORGANIZATION INVOLVED
Midwestern States Regional Council No. IV,
International Woodworkers of America , 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
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 yard salesmen, counter salesmen , cashiers
and stock boys employed by the Respondent at
its South St. Paul, Minnesota, facility; excluding
office clerical employees , managerial employees,
guards and supervisors as defined in the Act.
2. The certification
On August 15, 1972, 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 18, 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 July 24, 1973, and the Union
continues to he such exclusive representative within
the meaning of Section 9(a) of the Act.
of the scope of the hearing.
3 See Pittsburgh Plate Glass C o v NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board . Secs 102 67(f) and 102 69(c)
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about August 20, 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. As
alleged in the complaint and admitted in the answer,
the Union requested the Respondent to furnish it the
hourly rate of pay, the total earnings, the number of
holidays and amount of holiday pay, the number of
weeks of vacation granted, and the amount of
vacation pay during the 12-month period ending
June 30, 1973, for each employee in the above-
described unit. Commencing on or about August 30,
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 representative for collective bargaining of
all employees in said unit and to supply any of the
information and data described above.
Accordingly, we find that the Respondent has,
since August 30, 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. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
111, above, occurring in connection with its opera-
tions 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 com-
merce.
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; Commerce 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. Payless Cashway Lumber Store of South St.
Paul, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Midwestern States Regional Council No. IV,
International Woodworkers of America, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All yard salesmen, counter salesmen, cashiers
and stock boys employed by the Respondent at its
South St. Paul, Minnesota, facility; excluding office
clerical employees, managerial 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 July 24, 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 August 30, 1973, and
at all times thereafter, to provide information
necessary and relevant for intelligent collective
bargaining and 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 provide information
and 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 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.
PAYLESS CASHWAY LUMBER STORE 139
ORDER APPENDIX
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Payless Cashway Lumber Store of South St. Paul,
Inc., St. Paul, Minnesota, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to provide information necessary and
relevant for intelligent collective bargaining and to
bargain collectively concerning rates of pay. wages,
hours, and other terms and conditions of employ-
ment with Midwestern States Regional Council No.
IV, International Woodworkers of America,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All yard salesmen, counter salesmen, cashiers
and stock boys employed by the Respondent at
its South St. Paul, Minnesota, facility: excluding
office clerical employees, managerial 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, provide information necessary
and relevant for intelligent collective bargaining and
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 understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its South St. Paul, Minnesota, facility
copies of the attached notice marked "Appendix."a
Copies of said notice, on forms provided by the
Regional Director for Region 18 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 18, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
" 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 "
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WF WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Mid-
western States Regional Council No. IV, Interna-
tional Woodworkers of America, 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 yard salesmen , counter salesmen,
cashiers and stock boys employed by the
Respondent at its South St . Paul, Minnesota,
facility: excluding office clerical employees,
managerial employees, guards and supervi-
sors as defined in the Act.
PAYLESS CASHWAY
LUMBLR STORE OF
SOUTH ST. PAUL, 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, 316 Federal Building, 110 South
Fourth Street, Minneapolis, Minnesota 55401, Tele-
phone 612-725-2611.