Schwartz Brothers, Inc.

National Labor Relations Board - Board Decisions

Nov 11, 1971

194 N.L.R.B. 150 (N.L.R.B. 1971)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schwartz Brothers, Inc. and District Records, Inc. and
Warehouse Employees Local Union No. 730,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 5-CA-5239
November 11, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge and amended charge filed on July
20, 1971, and August 4, 1971, respectively, by
Warehouse Employees Local Union No. 730, affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Schwartz
Brothers, Inc., and District Records, Inc., herein
collectively called the Respondent, the Acting Gener-
al Counsel of the National Labor Relations Board, by
the Regional Director for Region 5, issued a com-
plaint on August 5, 1971, 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 a Trial Examiner were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 5,
1971, following a Board election in Case 5-RC-7420,
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 April 16, 1971, and at all
times thereafter, Respondent has refused, and contin-
ues 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 11, 1971, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On August 20, 1971, counsel for the Acting General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 26,
1971, the Board issued an order transferring the
proceeding to the Board and a Notice To Show Cause
why the Acting General Counsel's Motion for
Summary Judgment should not be granted. Respon-
i Official notice is taken of the record in the representation proceeding,
Case 5-RC-7420 as the term "record" is defined in Secs. 102.68 and
102 69(f) 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); Golden Age Beverage Co., 167 NLRB 151, Intertype Co v. Penello,
269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397
dent thereafter filed a response to Notice To Show
Cause, and on September 9, 1971, a Motion to Amend
Answer which is hereby granted. In its amendment
the Respondent added, as an affirmative defense, the
invalidity of the certification as a result of the alleged
objectionable conduct by the Board agent and the
subsequent refusal of the Regional Director to
conduct a hearing on the issues of fact raised thereby.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with 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 as amended and in its Response to the
Notice to Show Cause, the Respondent contends that
the certification issued to the Union in Case
5-RC-7420 is invalid because of the Respondent's
objections to the Board agent's making challenges to
voters on behalf of the Union which allegedly
destroyed the impartiality and neutrality of the Board
in the election. We find no merit in this contention.
A review of the record in the representation Case
5-RC-7420 shows that, pursuant to the Regional
Director's Decision and Direction of Election,2 an
election by secret ballot was held on December 15,
1970, in which the Union received a majority of the
votes cast and the challenged ballots were insufficient
to affect the election results. The Respondent filed
timely objections to the election alleging, in sub-
stance , that the conduct of the Board agent in making
challenges on behalf of the Union led the employees
to believe that the Board favored the Union, thereby
destroying the neutrality and objectivity of the Board
in the election.
After investigation, and considering the affidavits of
the Respondent's observer and of the Board agent, the
Regional Director issued on February 5, 1971, his
Supplemental Decision and Certification of Repre-
sentative, overruling the Respondent's objections. He
found that the Union did not use an observer in the
election because the Respondent had terminated
employee Jeato, the Union's principal supporter, who
was to act as observer and that the Union apparently
was unable to secure any other individuals to act as
observer. While permitting Jeato to enter its premises
F.2d 91 (C.A. 7, 1968); Sec 9(d) of the NLRA.
2 On December 11, 1970, the Board denied the Respondent 's request for
review of the Decision and Direction of Election because it raised no
substantial issues warranting review, except with respect to the unit
placement of three individuals which was to be resolved through the
challenge procedure.
194 NLRB No. 13
SCHWARTZ BROTHERS, INC.
to cast a challenged ballot, the Respondent would not
let him remain on the premises to act as the Union's
observer. The Regional Director decided that the
challenges made on behalf of the Union in no way
affected the neutrality of the Board, that the fairness
of the election had not been compromised, and that
the voters had not been given the impression that the
Board favored the Union over the Respondent.
Further, he considered the impact of section 11338 of
the Board Field Manual which provides that "the
Board agent will not make challenges on behalf of the
parties, whether or not such parties have observers
present." But he concluded that rigid adherence to the
guidelines of the manual in all situations could well
frustrate the purpose of that section as well as of the
Act. Under all the circumstances, including the fact
that the Respondent adamantly refused to allow Jeato
to act as the Union's observer and the Union's
apparent inability to secure a replacement, the
Regional Director ruled that the Board agent had
acted properly because, in the absence of challenges,
potentially ineligible voters could have cast ballots
which could have affected the results of the entire
election.
The Respondent thereafter timely filed with the
Board a request for review of the Regional Director's
Supplemental Decision and Certification of Repre-
sentative raising again the refusal to sustain its
objections to the election and the refusal to follow
section 11338 of the Field Manual and relying for
support on the Board' s decisions in Athbro Precision
Engineering Corp., 166 NLRB 966 (1967), and Balfre
Gear & Manufacturing Co., 115 NLRB 19 (1956). On
March 1, 1971, the Board denied the request for
review as raising no substantial issues warranting
review.
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 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
3 See Pittsburgh Plate Glass Co v. N.L RB., 313 US 146, 162 (1941);
Rules and Regulations of the Board, Secs . 102 67(f) and 102.69(c).
4 Crest Leather Manufacturing Corp., 167 NLRB 1085-86, and cases
cited therein; Lipman Motors, Inc., 187 NLRB No. 36, Janler Plastic Mold
Corp., 191 NLRB No. 24.
5 Respondent 's answer denies the request and refusal to bargain.
Attached to the General Counsel's Motion for Summary Judgment, as
Exhs. I and 2, is a letter from the Union's business agent requesting "a
151
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. In the amended answer and response, the
Respondent for the first time raises the question of its
procedural right to a hearing to litigate the factual
issues raised by its objections. In its denial of the
Respondent's request to review the Regional Direc-
tor's Supplemental Decision and Certification of
Representative, the Board already has decided that
Respondent's objections raise no substantial issues
warranting review. Where, as here, no substantial and
material issues are presented, no evidentiary hearing
is required.4 Accordingly, we shall grant the Motion
for Summary Judgment .5
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a single employer comprised of
two corporations, Schwartz Brothers, Inc., a Dela-
ware corporation, and District Records, Inc., a
Maryland corporation, the wholly owned subsidiary
of Schwartz Brothers, Inc. The principal offices and
places of business for both corporations is Washing-
ton, D.C., where they are engaged in the wholesale
distribution of phonograph records. In addition,
District Records, Inc., performs job trucking services
for retail customers. During the past 12 months, a
representative period, each corporation had gross
revenues in excess of $500,000 and purchased and
received at its Washington, D.C., location goods
valued in excess of $10,000 from points outside the
District of Columbia.
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
Warehouse Employees Local Union No. 730,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
negotiating conference ," and a letter from the Respondent's attorney
declining to bargain with the Union. In its Response to the Notice to Show
Cause, the Respondent neither alludes to nor controverts the letters
attached to the Motion for Summary Judgment . Thus, the truth of the
factual allegations in the complaint concerning the request and refusal to
bargain stands admitted by the uncontroverted factual averments in the
General Counsel's motion. The May Department Stores Company, 186
NLRB No. 17, and Carl Simpson Buick, Inc., 161 NLRB 1389.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
purposes within the meaning of Section 9(b) of the
Act:
All warehouse employees including truckdrivers
and inventory clerks department employees em-
ployed by the Employer at its Washington, D.C.
warehouse, but excluding office clerical employ-
ees, guards, watchmen and supervisors as defined
in the Act.
2. The certification
On December 15, 1970, 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 5, 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 February 5, 1971, 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 April 8, 1971, 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 April 16, 1971, 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
April 16, 1971, 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.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
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,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing com-
merce 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, 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate 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. Schwartz Brothers, Inc., and District Records,
Inc., is a single employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Warehouse Employees Local Union No. 730,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All warehouse employees including truckdri-
vers and inventory clerks department employees
employed by the Employer at its Washington, D.C.
warehouse, but excluding office clerical employees,
guards, watchmen 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 February 5, 1971, 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 April 16, 1971, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
SCHWARTZ BROTHERS , INC. 153
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
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.
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 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply-herewith.
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 be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Schwartz Brothers, Inc., and District Records, Inc., 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 Warehouse Employees Local
Union No. 730, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All warehouse employees including truckdrivers
and inventory clerks department employees em-
ployed by the Employer at its Washington, D.C.
warehouse, but excluding office clerical employ-
ees, guards, watchmen 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Washington, D.C., warehouse copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 5, 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
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Ware-
house Employees Local Union No. 730, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive representative of the employ-
ees 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 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 warehouse employees including truckdri-
vers and inventory clerks department em-
ployees employed by the Employer at its
Washington, D.C. warehouse, but excluding
office clerical employees, guards, watchmen
and supervisors as defined in the Act.
SCHWARTZ BROTHERS,
INC. AND DISTRICT
RECORDS, INC.
(Employer)
Dated By
(Representative) (Title)
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by - Any questions concerning this notice or compliance
anyone. with its provisions may be directed to the Board's
This notice must remain posted for 60 consecutive Office, Federal Building, Room 1019, Charles Center,
days from the date of posting and must not be altered, Baltimore, Maryland 21201, Telephone
defaced, or covered by any other material. 301-962-2822.