Scot Lad Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1982

260 N.L.R.B. 891 (N.L.R.B. 1982)

SCOT LAD FOODS. INC.
Scot Lad Foods, Inc. and Laborers' International
Union of North America, Laborers' Local 1250,
AFL-CIO. Case 6-CA-15019
March 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on October 22, 1981, by La-
borers' International Union of North America, La-
borers' Local 1250, AFL-CIO, herein called the
Union, and duly served on Scot Lad Foods, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 6, issued a complaint on
November 9, 1981, 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 6,
1981, following a Board election in Case 6-RC-
8909, 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 October 7, 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 November 16, 1981, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On December 7, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December
11, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Official notice is taken of the record in the representlaion pro cecding,
Case 6-RC 8909, as the term "record" is defined In Ses. . 102 . and
102.69(g) of the Board's Rules and Regulations, Serie 8. as amended See
LT' FIlectroEstem*r. Inc. 166 NL RH 938 (1967), enfd 388 F 2d 83 (4th
Cir 1968): Gollden
4
irc Bevrugi (C;, l7 NI RH 151 11967). enfd 415
F.2d 2b (5th Cir 14h96 Inip;rtvrp (o, P ncl,/ 2(, I[:Supp 57'
(DC Va 1967): oIlh' it (;rp. It4 NI RIt 37S (197). nrld 3197 1 2d 91
(7th Cir 1Q68): Sec 9(d) of Ihe NI RA, a, .inlnded
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
The complaint alleges violations of Section
8(a)(l) and (5) of the Act by Respondent's refusal
to bargain with the Union since October 7, 1981,
on all issues affecting the wages, hours, and other
terms and conditions of employment of the em-
ployees in the appropriate unit.
In its answer to the complaint and response to
the Notice To Show Cause, Respondent admits the
refusal to bargain but contends that it was not re-
quired to bargain because the Union's certification
in the underlying representation case is invalid.
Thus, Respondent contends that there exists sub-
stantial and material issues arising out of its objec-
tions to the election and that they warrant a
hearing. Such issues are, according to Respondent,
the agency status of Joyce Batson, whether Bat-
son's statements constituted misrepresentations,
whether Respondent had an adequate opportunity
to respond to Batson's alleged misrepresentations,
and whether Batson's conduct was so aggravated
as to create an atmosphere of fear of reprisal which
rendered a free expression of choice of representa-
tion impossible.
A review of the record reveals that, pursuant to
a Stipulation for Certification Upon Consent Elec-
tion in Case 6-RC-8909, an election was held on
February 5 and 6, 1981, in the appropriate unit.
The tally was 17 for, and 8 against, the Union.
There were no challenged ballots. Thereafter, Re-
spondent filed objections to the election. On May
28, 1981, the Regional Director for Region 6 issued
his Report and Recommendation on Objections in
which he recommended that the objections be
overruled, and that a certification of representative
be issued. Respondent filed exceptions to the Re-
gional Director's Report and Recommendation on
Objections with the Board. On August 6, 1981, the
Board issued its Decision and Certification of Rep-
resentative (not reported in volumes of Board De-
cisions) in which it adopted the Regional Direc-
tor's findings and recommendations. In its Decision
and Certification of Representative, the Board
found that Respondent's exceptions "raise no mate-
rial or substantial issues of fact or law which
would warrant our reversal of the Regional Direc-
tor's recommendation or require a hearing."
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
260 NLRB No. 113
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with an
office and place of business located in Hepzibah,
West Virginia, has been engaged, at all times mate-
rial herein, in the nonretail sale of groceries and re-
lated products. During the 12-month period ending
September 30, 1981, Respondent, in the course and
conduct of its operations, sold and shipped from its
Hepzibah, West Virginia, facility products, goods,
and materials valued in excess of $50,000 directly
to points outside the State of West Virginia.
During this same 12-month period, Respondent, in
the course and conduct of its operations, purchased
and received at its Hepzibah, West Virginia, facili-
ty products, goods, and materials valued in excess
of $50,000 directly from points outside the State of
West Virginia.
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
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Laborers' International Union of North America,
Laborers' Local 1250, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
2 See Pittshburgh Plats Glacs Co. v N.L. R B_ 313 UIS 146, 162 (1941 )
Rules and Regulations of she Board, Secs 102 67(1) and 102 t,)(c)
III. THE UNFAIR LABOR 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 office and warehouse clerical employees
including procurement clerks, secretaries,
order clerks, accounting clerks, data process-
ing operators and keypunchers; excluding all
buyers, store counselors, tax accountants, con-
fidential employees, systems analysts, manage-
ment employees, and guards, professional em-
ployees and supervisors as defined in the Act.
2. The certification
On February 5 and 6, 1981, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 6, 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 August 6, 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 October 2, 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 October 7, 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
October 7, 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
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
892
SCO()T Al) F(OODS. INC
IV. THI EFFECT OF THI UNF AIR I ABOR
PRACTICES UPON CONMMIRCI
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
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 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. Scot Lad Foods, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Laborers' International Union of North Amer-
ica, Laborers' Local 1250, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. All office and warehouse clerical employees,
including procurement clerks, secretaries, order
clerks, accounting clerks, data processing opera-
tors, and keypunchers; excluding all buyers, store
counselors, tax accountants, confidential employ-
ees, systems analysts, management employees, and
guards, professional employees 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 6, 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 October 7, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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,
Scot Lad Foods, Inc., Hepzibah, West Virginia, 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 Laborers' Interna-
tional Union of North America, Laborers' Local
1250, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All office and warehouse clerical employees
including procurement clerks, secretaries,
order clerks, accounting clerks, data process-
ing operators and keypunchers; excluding all
buyers, store counselors, tax accountants, con-
fidential employees, systems analysts, manage-
ment employees, and guards, professional em-
ployees 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:
893
DECISI()NS O() NATI()NAI I A()OR R IAIO'l()NS B()ARD
(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 facility in Hepzibah, West Virgin-
ia, copies of the attached notice marked "Appen-
dix."3 Copies of said notice, on forms provided by
the Regional Director for Region 6, 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 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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 l.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enfircing all
Order of the National Lahbor Relations Hoard"
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 Laborers' International Union of North
America, Laborers' Local 1250, AFL-CIO, 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 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 office and warehouse clerical employees
including procurement clerks, secretaries,
order clerks, accounting clerks, data proc-
essing operators and keypunchers; excluding
all buyers, store counselors, tax accountants,
confidential employees, systems analysts,
management employees, and guards, profes-
sional employees and supervisors as defined
in the Act.
SCOT LAD FOODS, INC.
894