Gasko & Meyer, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1981

258 N.L.R.B. 349 (N.L.R.B. 1981)

GASKO & MEYER, INC.
Gasko & Meyer, Inc. and Local 445, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 3-CA-
10465
September 29, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on May 26, 1981, by Local
445, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, and duly served on
Gasko & Meyer, Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
3, issued a complaint on June 2, 1981, against Re-
spondent, 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 and 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 April 23,
1981, following a Board election in Case 3-RC-
7557, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about April 27, 1981, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On June 19, 1981, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 13, 1981, counsel for the General Coun-
sel filed directly with the Board a "Motion To
Transfer Proceeding to Board, To Strike Respond-
ent's Alleged First and Second Defenses and for
Summary Judgment and Issuance of Board's Deci-
sion and Order." Subsequently, on July 17, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
' Official notice is taken of the record in the representation proceed-
ing, Case 3-RC-7557. 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
LTV Electrosvslems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415
F.2d 26 (5th Cir 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA. as amended.
258 NLRB No. 42
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed an opposition to the Motion for
Summary Judgment.
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 its opposition
to the Motion for Summary Judgment, Respondent
attacks the validity of the Union's certification in
Case 3-RC-7557 because of the alleged erroneous
disposition of the ballot of challenged voter
Donald Fulton.
Review of the record herein, as well as that in
Case 3-RC-7557, shows that pursuant to a Deci-
sion and Direction of Election issued by the Re-
gional Director for Region 3 on September 11,
1979, a secret-ballot election was conducted on Oc-
tober 10, 1979.
Following timely objections filed by the Union,
the Board, on February 1, 1980, adopted a Region-
al Director's report recommending that certain ob-
jections and determinative challenges be overruled,
that a revised tally issue, and that, in the event the
Union did not receive a majority of the valid bal-
lots, Case 3-RC-7557 be consolidated with Cases
3-CA-9329 and 3-CA-9344 for the purpose of re-
solving, inter alia, the challenges to the ballots of
voters Russell Peters, Jr., and Donald Fulton. The
revised tally showed seven votes cast for, and
seven votes against, the Union, with the challenged
ballots of Fulton and Peters being determinative.
On November 21, 1980, Administrative Law
Judge Robert W. Leiner issued a decision in Cases
3-CA-9329, 3-CA-9344, and 3-RC-7557 recom-
mending, inter alia, that the challenge to the ballot
of Peters be sustained and the challenge to the
ballot of Fulton be overruled. As to Fulton, Ad-
ministrative Law Judge Leiner found that Re-
spondent had not, in fact, eliminated his position of
seasonal helper and that, even if it had, Respondent
had done so for unlawful reasons. On April 6,
1981, the Board adopted Administrative Law
Judge Leiner's Decision 2 and ordered that Fulton's
ballot be opened and counted and, in the event that
the Union received a majority, that it be certified.
Pursuant to the Board's Order, a revised tally
issued on April 6, 1981, showing that eight votes
had been cast for, and seven against, the Union.
2 255 NRB 658 11981)
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the Union was certified on April 23,
1981.
In its answer to the complaint and its opposition
to the Motion for Summary Judgment, Respondent
contends that (1) it eliminated Fulton's job for le-
gitimate economic reasons and (2) that additional
evidence which was not available and could not be
produced at the hearing before Administrative Law
Judge Leiner exists which establishes that Fulton's
position was, in fact, eliminated. It is thus clear that
Respondent is attempting to relitigate issues which
were or could have been litigated in the underlying
proceeding. This it cannot do.3 Nor would the new
evidence which Respondent alleges exists warrant
a denial of the General Counsel's motion. For,
even assuming that such evidence establishes that
Fulton's position was in fact eliminated, it would
not affect, in any way, the Board's finding that the
position was eliminated for unlawful reasons.
Thus, all issues raised by Respondent in this pro-
ceeding were or could have been litigated in the
prior representation proceeding, and Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable relevant evi-
dence, nor does it allege that any special circum-
stances exist herein which would require the Board
to reexamine the decision made in the representa-
tion proceeding. We therefore find that Respond-
ent has not raised any issue which is properly liti-
gable in this unfair labor practice proceeding. Ac-
cordingly, we grant the General Counsel's
motion.4
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with its
principal place of business in Lake Huntington,
New York, is engaged at that location in the
wholesale sale and distribution of beer and other
beverages. During the past year, Respondent, in
the course and conduct of its business operations,
received products valued in excess of $50,000 of
which products valued in excess of $50,000 were
shipped to its Lake Huntington, New York, ware-
house directly from points located outside the State
of New York.
We find, on the basis of the foregoing, that Re-
spondent 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
I See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board. Sees. 102.67(0 and 102.69(c).
4 While we find both defenses of Respondent to be without merit,
there is no reason to strike them.
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE ABOR ORGANIZATION INVOLVED
Local 445, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time drivers,
helpers, warehousemen and salesmen em-
ployed by the Respondent at its Lake Hunting-
ton, New York facility, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On October 10, 1979, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 3, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on April 23, 1981, 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 27, 1981, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 27, 1981, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
April 27, 1981, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
350
GASKO & MEYER, INC.
has engaged in and is engaging in unfair labor prac-
tices 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
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Gasko & Meyer, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 445, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time drivers,
helpers, warehousemen and salesmen employed by
Respondent at its Lake Huntington, New York, fa-
cility, excluding all office clerical employees, pro-
fessional employees, guards and supervisors as de-
fined 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 April 23, 1981, 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 27, 1981, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Gasko & Meyer, Inc., Lake Huntington, New
York, 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 Local 445, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time drivers,
helpers, warehousemen and salesmen em-
ployed by the Respondent at its Lake Hunting-
ton, New York facility, excluding all office
clerical employees, 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 ex-
ercise 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:
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Lake Huntington, New York, fa-
cility copies of the attached notice marked "Ap-
pendix."5 Copies of said notice, on forms provided
by the Regional Director for Region 3, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Pursu-
ant 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
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Local 445, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time drivers,
helpers, warehousemen and salesmen em-
ployed by the Employer at its Lake Hun-
tington, New York facility, excluding all
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
GASKO & MEYER, INC.
352