Jason/Empire, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 137 (N.L.R.B. 1974)

JASON/EMPIRE, INC 137
Jason /Empire , Inc. and Department Store , Package,
Grocery, Paper House , Liquor and Meat Drivers,
Helpers and Warehousemen , Local Union No. 955,
Affiliated with the International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers
of America . Case 17-CA-5928
June 28, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on February 4, 1974, by De-
partment Store, Package, Grocery, Paper House, Li-
quor and Meat Drivers, Helpers and Warehousemen,
Local Union No. 955, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union,
and duly served on Jason/Empire, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 17, issued a complaint on February 8, 1974,
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 Nation-
al Labor Relations Act, as amended. Copies of the
charge, 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 com-
plaint alleges in substance that on December 21, 1973,
following a Board election in Case 17-RC-7335 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate,I and that, commencing
on or about January 21, 1974, and at all times thereaf-
ter, 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
February 11, 1974, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On March 11, 1974, counsel for the General Coun-
sel filed directly with the Board a motion to transfer
the proceeding to the Board, to strike Respondent's
'Official notice is taken of the record in the representation proceeding,
Case 17-RC-7335, 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
Elecirosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969),
interlype Co v Penello, 269 F Supp 573 (D C Va , 1967), Follett Corp, 164
NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
answer in part, and for Summary Judgment. Subse-
quently, on March 22, 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. On
March 25, 1974, prior to the receipt of the Board's
order of March 22, 1974, the Respondent filed a brief
in opposition to motion to transfer the proceeding to
the Board, to strike Respondent's answer in part, and
for Summary Judgment; and, on March 27, 1974, it
filed a motion to consolidate Case 17-CA-5928 with
Case 17-CB-1265. Respondent thereafter filed a re-
sponse to Notice To Show Cause, entitled "Supple-
mental Brief in Opposition to Motion for Summary
Judgment and Request for Oral Argument."
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,2 the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and in its briefs in
opposition to the General Counsel's Motion for Sum-
mary Judgment, the Respondent basically attacks the
Union's representative status and certification be-
cause the Union precluded the free choice of employ-
ees in the representative election in Case
17-RC-7335, by offering to waive full initiation fees
for all employees who signed authorization cards be-
fore the election. It also contends that this offer was
a violation of the Act under the Supreme Court's deci-
sion in N.L.R.B. v. Savair Manufacturing Company,
Inc., 414 U.S. 270 (1973), and based thereon it has
filed an unfair labor practice charge against the
Union in Case 17-CB-1265 and moves to consolidate
that case with the instant case.
Our review of the record herein reflects that a hear-
ing on the Union's petition in Case 17-RC-7335 was
held on October 15, 1973, at which the Respondent
and Union stipulated to the Union's status as a labor
organization and to the appropriateness of the bar-
gaining unit. The Regional Director so found in his
Decision and Direction of Election issued on Novem-
ber 15, 1973. In the election conducted on December
13, 1973, pursuant to the Regional Director's direc-
tion, 16 ballots were cast for, and 13 against, the
2 The Respondent's request for oral argument is hereby denied as the
General Counsel' s motion and the Respondent's motion and briefs ade-
quately present the positions of the parties
The Respondent' s motion to consolidate Case 17-CA-5928 with Case
17-CB-1265 is hereby denied as the latter charges were administratively
dismissed by the Regional Director for Region 17 and, following
Respondent 's appeal from that adverse ruling , the Regional Director's ruling
was sustained by the General Counsel
212 NLRB No. 21
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, with 1 ballot challenged. No objections to the
tally of ballots or to the conduct of the election having
been filed within the time provided therefor, the Re-
gional Director, on December 21, 1973, issued a certi-
fication of representative, certifying the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate stipulated unit.
Thereafter, on February 7, 1974, the Respondent
filed with the Regional Director an "Application for
Leave to File Objections to Election Out of Time"
and, on February 8, 1974, it filed an affidavit from its
attorney in support thereof. According to the Respon-
dent, after the election and after the expiration of the
5 days for the filing of objections, required by Section
102.69 of the Board's Rules and Regulations, it dis-
covered that at a preelection organizational meeting
the Union had offered "to waive full initiation fees
($50) for all employees who signed Union authoriza-
tion cards before the Board-directed certification
election" and that this waiver, which allegedly was a
violation of the Act, precluded the employees' exer-
cise of free choice in the election. On February 14,
1974, the Regional Director issued an order denying
the Respondent's application because the Board's
Rules and Regulations do not provide for filing of
objections to an election out of time. The Regional
Director noted that the Respondent had filed the ob-
jection only after it was advised that the complaint
herein was to be issued and that there were no unusual
or extraordinary circumstances presented by the Re-
spondent which would justify consideration of objec-
tions at that time. The Respondent failed to file with
the Board a request for review from the Regional
Director's order. To the extent that the Respondent is
seeking relitigation of issues which were raised or
could have been raised in the representation case pro-
ceeding, it may not do so.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
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
made in the representation proceeding. We therefore
find that the Respondent has not raised any issue
J See Pittsburgh Plate Glass Co v N L R B ,313 US 146, 162 (1941), Rules
and Regulations of the Board, Secs 102 67(f) and 102 69(c)
which is properly litigable in this unfair labor practice
proceeding .4
In its submission herein, the Respondent contends
that the Union's offer to waive initiation fees, having
been made at a preelection union organizational
meeting, was not discovered until after the time for
filing objections admittedly had expired and that it
never had a hearing on the issue of waiver which,
under the Supreme Court's decision in Savair, supra,
allegedly violated the Act and which formed the basis
for its unfair labor practice charge against the Union
in Case l7-CB-1265, filed by it on February 8, 1974.
We find no merit in the Respondent's contentions.
First, although the alleged waiver was made at a pre-
election union meeting, the Respondent has failed to
show that with due diligence it could not have uncov-
ered the evidence in time to file timely objections; nor
has it explained why it did not disclose the evidence
until after being advised that the complaint herein
would issue, nearly 2 months after the election. In any
event, the objection based on the newly discovered
evidence of waiver would still be subject to Section
102.69 of the Board's Rules and Regulations, which
provides that objections must be filed within 5 days
after the tally of ballots has been furnished to the
parties. In the instant case , the alleged evidence was
not disclosed to the Regional Director until February
8, 1974, long after December 20, 1973, the last day for
filing objections herein. In these circumstances and in
view of the Board's determination that, to achieve
certainty in procedural matters, it is essential that
parties be held to a strict adherence to the Board's
Rules and Regulations, any objections based on the
alleged evidence would not be considered timely filed
and would be overruled.' We shall, accordingly, grant
the General Counsel's Motion for Summary Judg-
ment.
On the basis of the entire record, the Board makes
the following:
In its answer , the Respondent has denied certain allegations of the com-
plaint. the General Counsel has moved to strike these denials As to the
Union's status as a labor organization under Sec 2(5) of the Act and as to
the appropriateness of the unit , these were stipulated by the Respondent and
so found by the Regional Director in the underlying representation Case
17-RC-7335 As to the date of the filing of the charge and as to the request
and refusal to bargain , there are attached to the General Counsel ' s Motion
for Summary Judgment Exhibits A, B, and E, documents the contents of
which have not been controverted or alluded to by the Respondent and
which establish the denied allegations of the complaint Accordingly, the
General Counsel's motion to strike these denials is granted and these denied
alleations of the three are deemed to be true and to found
5 9Heritage Nursing Center, Inc, 207 NLRB No 118 See also Personal
Products Corporation , 114 NLRB 959, 961 In this connection , we also note
that the Respondent failed to file with the Board an administrative appeal
from the Regional Director's adverse ruling
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
JASON/ EMPIRE , INC 139
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
The Respondent, a Delaware corporation, is en-
gaged in the import, warehousing, repair, and sale, at
wholesale, of sporting goods and related products at
its warehouse located in Overland Park, Kansas. The
Respondent annually purchases goods and products
valued in excess of $50,000 directly from suppliers
outside the State of Kansas and annually sells goods
at wholesale valued in excess of $50,000 directly to
customers located outside the State of Kansas.
We find, on the basis of the foregoing, the Re-
spondent is, and has been at all times material herein,
an employer engaged in commerce within the mean-
ing 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
Department Store, Package, Grocery, Paper
House, Liquor and Meat Drivers, Helpers and Ware-
housemen, Local Union No. 955, affiliated with the
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 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
employees and repair service employees of Ja-
son/Empire, Inc. at its Overland Park, Kansas,
location; but excluding office clerical employees,
outside salesmen , professional employees, guards
and supervisors as defined in the Act.
2. The certification
On December 13, 1973, a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 17 , 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 December 21, 1973, and the Union
B. The Request To Bargain and Respondent's Refusal
Commencing on or about January 18, 1974, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about January 21, 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 collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since January 21, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor practic-
es 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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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 mean-
ing 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain 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); Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5,
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1964), cert . denied 379 U.S. 817 ( 1964); Burnett Con-
struction 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. Jason/Empire, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Department Store, Package, Grocery, Paper
House, Liquor and Meat Drivers, Helpers and Ware-
housemen, Local Union No. 955, affiliated with the
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 and repair service employees of Jason/
Empire, Inc. at its Overland Park, Kansas, location;
but excluding office clerical employees, outside sales-
men, professional employees, guards and supervisors
as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since December 21, 1973, the above-named la-
bor organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about January 21, 1974, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent 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 mean-
ing 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.
tions Board hereby orders that Respondent, Jason/
Empire, Inc., Overland Park, Kansas, 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 condi-
tions of employment with Department Store, Pack-
age, Grocery, Paper House, Liquor and Meat Drivers,
Helpers and Warehousemen, Local Union No. 955,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining repreaentative
of its employees in the following appropriate unit:
All full-time and regular part-time warehouse
employees and repair service employees of Ja-
son/Empire, Inc. at its Overland Park, Kansas,
location; but excluding office clerical employees,
outside salesmen, 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
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 Overland Park, Kansas, location
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the Re-
gional Director for Region 17,-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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
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
JASON/EMPIRE, INC. 141
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 De-
partment Store, Package, Grocery, Paper House,
Liquor and Meat Drivers, Helpers and Ware-
housemen, Local Union No. 955, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT in any like or related manner in-
terfere 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 understanding in a signed agreement. The
bargaining unit is:
All full-time and regular part-time warehouse
employees and repair service employees of Ja-
son/Empire, Inc. at its Overland Park, Kansas,
location; but excluding office clerical employ-
ees, outside salesmen, professional employees,
guards and supervisors as defined in the Act.
JASON/EMPIRE, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 616 Two Gateway Center, Fourth at
State, Kansas City, Kansas 66101, Telephone 816-
374-4518.