Raub Supply Co.

National Labor Relations Board - Board Decisions

Dec 17, 1974

215 N.L.R.B. 830 (N.L.R.B. 1974)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raub Supply Company and Retail Store Employees
Union, Local 1393 . Case 4-CA-6906
December 17, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a charge filed on June 21, 1974, by Retail Store
Employees Union, Local 1393, herein called the Union,
and duly served on Raub Supply Company, herein
called the Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Acting Regional
Director for Region 18, issued a complaint on July 30,
1974, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor prac-
tices 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 Administra-
tive Law Judge were duly served on the parties of this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 17, 1974, fol-
lowing a Board election in Case 4-RC-10547 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about May 31, 1974, 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
August 7, 1974, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 3, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, submitting in effect that by its
answer to the complaint Respondent was attempting to
relitigate issues which had been raised and litigated in
the representation proceeding. Subsequently, on Sep-
tember 16, 1974, 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. Respondent there-
after filed a response to Notice To Show Cause, with
affidavits attached, and on the basis of the arguments
Official notice is taken of the record in the representation proceeding,
Case 4-RC-10547, as the term "record" is defined in Secs 102 68 and
102 69(g) of the Board 's Rules and Regulations , Series 8, as amended See
LTVElectrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A
4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d
26 (CA 5, 1969), Intertype Co. v Penello, 269 F Supp 573 (D C Va.,
1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F2d 91 (CA 7,
1968), Sec 9(d) of the NLRA
set forth therein, a cross-motion for summary judg-
ment, motion to rescind certification, or in the alterna-
tive, motion to remand for full evidentiary hearing on
Respondent's objections.
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 response to the
Notice To Show Cause, Respondent disputes the cer-
tification of the Union in the underlying representation
proceeding on the basis of its objections therein, and the
Board's resolution of those objections, and requests a
hearing thereon.
In the representation case, the record of which we
have before us, Respondent objected to the election on
the basis that the Union had prejudiced the results
thereof by: (1) offering to waive initiation fees prior to
the election; (2) accusing management of criminal ac-
tivity; and (3) misrepresenting various facts, including
wages and pension benefits it would negotiate. Re-
spondent also requested that a "full and thorough"
investigation be conducted, but did not request a hear-
ing. Following an investigation, the Regional Director
issued a report and recommendation on objections,
finding the Union's offer to waive initiation fees to be
unconditional and therefor valid under Board and
court precedent, and that the other alleged union mis-
conduct was within legitimate bounds in a vigorously
contested election such as this. For the above reasons,
the Regional Director recommended that the objec-
tions be overruled and that the Board certify the Union.
Respondent filed exceptions to this report with the
Board, assigning error to the determinations of the
Regional Director, and requesting that the election be
set aside. On May 17, 1974, the Board issued a Decision
and Certification of Representative, adopting the Re-
gional Director's findings and recommendations and
certifying the Union.'
It thus appears that the Respondent's contentions in
this proceeding are the same as those it argued in the
representation proceeding. 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
2 Member Kennedy was of the opinion that the exceptions raised material
issues with respect to the alleged misrepresentations concerning wages and
retirement , and would have ordered a hearing on those issues
3 See Pittsburgh Plate Glass Co v N.L.R B., 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
215 NLRB No. 75
RAUB SUPPLY COMPANY
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior represen-
tation proceeding, and the Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously unavailable evidence, nor does it allege that any
special circumstances exist herein which would require
the Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that the Re-
spondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.'
With regard to Respondent's motion to remand for
full evidentiary hearing, we necessarily found no issues
warranting such a hearing in ruling on Respondent's
exceptions to the Regional Director's report, which
exceptions raised the same issues as Respondent argues
herein. Accordingly, absent facts not previously con-
sidered, we find no reason to order a hearing on the
objections, and the motion is denied. We shall, accord-
ingly, grant the General Counsel's Motion for Sum-
mary Judgment.'
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation, is engaged
in the wholesale distribution of plumbing, heating, and
electrical and industrial supplies in Lancaster, Pennsyl-
vania . During the past year, Respondent, in the course
and conduct of its business operations, sold products
valued in excess of $500,000. During the same period,
Respondnet purchased and received goods valued in
excess of $50,000 directly from firms located outside
the Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that Respond-
ent 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.
° In its answer to the complaint , Respondent does not admit the allegation
that it is an employer within the meaning of Sec. 2(6) of the Act However,
Respondent stipulated that it was an employer within the meaning of that
section in the Stipulation for Certification Upon Consent Election Further-
more, Respondent admits engaging in business in interstate commerce and
in an amount sufficient to satisfy the Board 's jurisdiction standards for this
type enterprise On these bases, we find Respondent 's denial of its status as
an employer within the meaning of the Act to raise no issue of fact, and the
denial is stricken
5 In view of our determination herein, Respondent's cross-motion for
summary judgment , motion to rescind certification , and motion to dismiss
complaint are denied
11 THE LABOR ORGANIZATION INVOLVED
831
Retail store Employees Union, Local 1393, 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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time and regular part-time warehouse em-
ployees, counter clerks, service and parts em-
ployees, plumbing and electrical purchase clerks,
dispatcher employed at the Lancaster, Pennsyl-
vania, facility and counter clerks employed at
Ephrata, Manheim and Coatsvill°e, Pa. branches.
Excluding all office clerical employees, salesmen,
guards and supervisors as defined in the Act.
2. The certification
On October 17, 1973, a majority of the employees of
Respondent in said unit, in a secret-ballot election con-
ducted under the supervision of the Regional Director
for Region 4, designated the Union as their representa-
tive 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 May 17, 1974, 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 May 28, 1974, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
May 31, 1974, 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.
Accordingly, we find that the Respondent has, since
May 31, 1974, 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, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed 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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962); Com-
merce 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 Com-
pany, 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. Raub Supply Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Retail Store Employees Union, Local 1393, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time warehouse em-
ployees, counter clerks, service and parts employees,
plumbing and electrical purchase clerks, and dis-
patcher employed at the Lancaster, Pennsylvania,
facility and counter clerks employed at Ephrata, Man-
heim, and Coatsville, Pa. branches, excluding all office
clerical employees, salesmen , guards and superivsors 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 May 17, 1974, the above-named labor organ-
ization has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about May 31, 1974, 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering 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 engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Raub Supply
Company, Lancaster, Pennsylvania, 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 Retail Store Employees Union,
Local 1393, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time warehouse em-
ployees, counter clerks, service and parts em-
ployees, plumbing and electrical purchases clerks,
dispatcher employed at the Lancaster, Pennsyl-
vania, facility and counter clerks employed at
Ephrata, Manheim and Coatsville, Pa. branches.
Excluding all office clerical employees , salesmen,
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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
RAUB SUPPLY COMPANY 833
(b) Post at its Lancaster, Ephrata, Manheim, and
Coatsville, Pennsylvania, offices, copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region 4,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive 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 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER KENNEDY, dissenting:
I am of the opinion, as I expressed in the decision in
the representation proceeding, that Respondent's ob-
jection to the election with regard to the Union's al-
leged misrepresentations concerning wages and retire-
ment benefits raised material issues which warranted a
hearing. Accordingly, I would deny the General Coun-
sel's Motion for Summary Judgment and dismiss the
complaint.
6 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 con-
cerning rates of pay, wages , hours, and other terms
and conditions of employment with Retail Store
Employees Union, Local 1393, as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner inter-
fere 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 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 under-
standing in a signed agreement. The bargaining
unit is:
All full-time and regular part-time warehouse
employees, counter clerks, service and parts em-
ployees, plumbing and electrical purchase
clerks, dispatcher employed at the Lancaster,
Pennsylvania, facility and counter clerks em-
ployed at Ephrata, Manheim and Coatsville, Pa.
branches. Excluding all office clerical em-
ployees, salesmen , guards and supervisors as de-
fined in the Act.
RAUB SUPPLY COMPANY