Vistar

National Labor Relations Board - Board DecisionsSep 30, 2004

343 N.L.R.B. 36 (N.L.R.B. 2004)

343 NLRB No. 36 Vistar and General Drivers, Warehousemen and Helpers Local Union 745. Case 16–CA–23808 September 30, 2004 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on August 13, 2004, the General Counsel issued the complaint on August 17, 2004, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 16–RC–10529. (Official notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer and an amended answer ad- mitting in part and denying in part the allegations in the complaint. On September 13, 2004, the General Counsel filed a Motion for Summary Judgment. On September 16, 2004, the Board issued an order transferring the proceed- ing 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 delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification based on its objec- tions to conduct alleged to have affected the results of the election and the Board’s disposition of certain determina- tive challenged ballots in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration with an office and place of business in Dallas, Texas, has been engaged in the business of warehousing and distribution of food products. During the 12-month period preceding issuance of the complaint, the Respon- dent, in conducting its business operations described above, purchased and received at its Dallas, Texas office goods valued in excess of $50,000 directly from points outside the State of Texas. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held October 24, 2003, the Un- ion was certified on June 24, 2004, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: INCLUDED: All drivers employed by the Employer at their location located at 5225 Investment Drive, Dallas, Texas, 75236. EXCLUDED: All other employees, including office clericals, salespeople, warehouse employees, engineers, and guards, including supervisors and managers as de- fined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain About June 29 and July 13, 2004, the Union, by letter, requested the Respondent to bargain, and, since about August 12, 2004, the Respondent has failed and refused to do so. We find that the Respondent has thereby unlawfully failed and refused to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after August 12, 2004, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Vistar, Dallas, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with General Drivers, Ware- housemen and Helpers Local Union 745, as the exclusive bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: INCLUDED: All drivers employed by the Employer at their location located at 5225 Investment Drive, Dallas, Texas, 75236. EXCLUDED: All other employees, including office clericals, salespeople, warehouse employees, engineers, and guards, including supervisors and managers as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Dallas, Texas, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 16 after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily 1 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” posted. Reasonable steps shall be taken by the Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since August 12, 2004. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with General Drivers, Warehousemen and Helpers Local Union 745, as the exclusive representative of the employees in the bargain- ing unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise 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 for our employees in the fol- lowing bargaining unit: INCLUDED: All drivers employed by us at our loca- tion located at 5225 Investment Drive, Dallas, Texas, 75236. EXCLUDED: All other employees, including office clericals, salespeople, warehouse employees, engineers, and guards, including supervisors and managers as de- fined in the Act. VISTAR 343 NLRB No. 36