Hallsmith Co., Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1975

216 N.L.R.B. 275 (N.L.R.B. 1975)

HALLSMITH COMPANY, INC. 275
Hallsmith Company, Inc. and General Truck Drivers
Union Local 653, a/w International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Help-
ers of America . Case 1-CA-10069
January 23, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
Upon a charge filed on September 3, 1974, by
General Truck Drivers Union Local 653, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on Hallsmith
Company, Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 1, issued
a complaint on September 30, 1974, 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,
complaint, and notice of hearing before an Adminis-
trative 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 August 21,
1974, following a Board election in Case 1-RC-
12828, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 2 and that,
commencing on or about August 28, 1974, and at all
times thereafter, Respondent has refused, and con-
tinues 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 7, 1974, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On October 25, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, submitting, in effect, that
Respondent by its answer to the complaint was
raising an issue which had been raised and litigated
in the underlying representation proceeding and
accordingly could not be relitigated herein. Subse-
quently, on November 12, 1974, the Board issued an
order transferring the proceeding to the Board and a
i In the absence of opposition , we grant the General Counsel 's motion
that pars . 12 and 13 of the complaint be deleted.
2 Official notice is taken of the record in the representation proceeding,
Case 1 -RC-12828 , 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
216 NLRB No. 47
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted. Respondent has filed no response to Notice
To Show Cause.
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, Respondent asserts
that the certification issued the Union in the
underlying representation proceeding is invalid
because the Union prejudiced the results of the
election therein by offering a substantial reduction of
its initiation fee if it won the election.
In view of the General Counsel's contention that
this issue was raised and litigated in the representa-
tion proceeding, we have reviewed the record thereof.
It appears that, following the Union's victory in the
election, Respondent filed timely objections to
conduct affecting the results of the election alleging
that the Union had offered to substantially reduce its
regular initiation fee to employees if it won the
election , and that if it won the election the employees
who had paid the reduced fee could procure higher
paying employment with employers other than
Respondent. After an investigation, the Regional
Director issued a Report on Objections, in which he
found no merit in Respondent's objections and
recommended that they be overruled. Upon Re-
spondent's exceptions to this report, we adopted the
Regional Director's recommendation that the second
objection be dismissed, and ordered that a hearing be
held on Respondent's first objection concerning the
Union's offer to reduce its initiation fees as it raised a
substantial question in light of the Supreme Court's
decision in Savair Manufacturing Company v.
N.L.R.B., 414 U.S. 270 (1973). Following a hearing at
which the parties appeared and presented evidence,
the Hearing Officer issued a Report and Recommen-
dations, essentially finding the Union's offer to
reduce its fee was not conditioned on employee
support, and recommending that the objection be
overruled. Respondent filed timely exceptions to this
report in which it attacked primarily the credibility
resolutions made by the Hearing Officer. On August
21, 1974, we issued a Supplemental Decision and
Certification of Representative in which we adopted
LTV Electrosystems, 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
(C.A 5, 1969), Intertype Co v. Penello, 269 F .Supp 573 (D.C Va, 1957);
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C A. 7, 1968), Sec.
9(d) of the NLRA.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Hearing Officer's findings , conclusions, and
recommendations, and certified the Union.
It appears from the foregoing review that Respond-
ent raised and fully litigated the issue raised herein
by its answer to the complaint in the underlying
representation case , and it may not relitigate it again,
as 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
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Massachusetts corporation with its
principal office and place of business at 56 Oak Hill
Way, Brockton, Massachusetts, is and at all times
material hereto has been engaged in the wholesale
distribution of food and related products. In the
course and conduct of its business Respondent
annually receives goods and materials at its Brockton
facility valued in excess of $50,000 which are shipped
to said plant directly from States other than the
Commonwealth of Massachusetts.
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
General Truck Drivers Union Local 653, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time warehouse
employees employed by the Employer at its
Brockton, Massachusetts, facility, including all
drivers and the janitor, but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.4
2. The certification
On August 23, 1973, 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 1 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 August 21, 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 August 23, 1974, 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. Com-
mencing on or about August 28, 1974, and continu-
ing at all times thereafter to date, the 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 the Respondent has,
since August 28, 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, Respond-
ent has engaged in and is engaging in unfair labor
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 ( 1941); stipulated to by the parties and approved by the Regional Director
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). Accordingly, that phrase is hereby deleted from the unit description in the
4 Through an inadvertent error , the unit description appearing in the certification issued the Union in Case 1-RC-12828, and the proper
certification contains the phrase "who were employed during the payroll description of the appropriate unit therein reads as appears above.
period ending Saturday, July 28, 1973," which was not contained in the unit
HALLSMITH COMPANY , INC. 277
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
III, 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 commer-
ce.
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 (1962); Commerce 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 Company, 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. Hallsmith Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. General Truck Drivers Union Local 653, a/w
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 warehouse
employees employed by the Employer at its Brock-
ton, Massachusetts, facility , including all drivers and
the janitor, but excluding all office clerical employ-
ees, professional 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 August 23, 1974, 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 28, 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, Respond-
ent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Hallsmith Company, Inc., its officers, agents, succes-
sors , 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 General Truck
Drivers Union Local 653, a/w 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 full-time and regular part-time warehouse
employees employed by the Employer at its
Brockton, Massachusetts, facility, including all
drivers and the janitor, but 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 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
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Brockton, Massachusetts, facility
copies of the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the
Regional Director for Region 1, 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 Respond-
ent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, 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 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Gener-
al Truck Drivers Union Local 653, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 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 full-time and regular part-time ware-
house employees employed by the Employer
at its Brockton, Massachusetts, facility,
including all drivers and the janitor, but
excluding all office clerical employees, pro-
fessional employees, guards and supervisors
as defined in the Act.
HALLSMITH COMPANY,
INC.