Southern States Distribution, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1982

260 N.L.R.B. 1291 (N.L.R.B. 1982)

SOUTHERN STATES DISrRIBUTION, INC
Southern States Distribution, Inc. and Highway and
Local Motor Freight Employees, Local Union
No. 667, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 26-CA-8977
March 30, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JE NKINS, AND
ZIMMERMAN
Upon a charge filed on March 24, 1981, by
Highway and Local Motor Freight Employees,
Local Union No. 667, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on Southern States Distri-
bution, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 26, issued
a complaint on March 31, 1981, against Respond-
ent, 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 February 26,
1981, following a Board election in Case 26-RC-
6218, 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 March 18, 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 April 9, 1981, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 16, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 20, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Olficial notice is taken of the record in the representation proceeding,
Case 26-RC-6218, 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 Elecrrosysrems, Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (4th
Cir. 1968); Golden .4ge Beverage Co 167 NLIRB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969), Intertype C (. v Penell, 269 F Supp 573
(D.C.Va 1967). Follhtt Corp., 164 NI.RB 3718 (1967), entd 97 F 2d 91
(7th Cir. 1968); Sec 9(d) of the NI.RA. as amended
Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
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 in response to
the Notice To Show Cause Respondent admits that
it refused and continues to refuse to recognize the
Union as the exclusive bargaining representative of
its employees. In defense of its conduct, Respond-
ent contests the validity of the certification issued
by the National Labor Relations Board. Specifical-
ly, Respondent asserts that the Union was inappro-
priately certified as exclusive bargaining repre-
sentative since union supporters during the time of
the election defaced the Board's official election
notice in the polling area. Respondent contends
that the issue of the defacement of the Board's offi-
cial notice of election was never litigated, since the
Regional Director refused to grant a hearing to Re-
spondent on this issue. The General Counsel asserts
that Respondent improperly seeks to relitigate
issues which were or could have been litigated in
the underlying representation proceeding. We
agree with the General Counsel.
On August 19, 1980, the Regional Director for
Region 26 issued a Report on Objections in which
he recommended to the Board that Respondent's
objection concerning the defacement of the official
election be overruled. The Board considered Re-
spondent's exceptions to the Regional Director's
report and, on February 26, 1981, adopted the Re-
gional Director's findings and recommendations. 2
In doing so the Board found Respondent's excep-
tions raised no material or substantial issues of fact
or law which warranted further investigation or a
hearing.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
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. 3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
254 NlRBH 101 I
See Pihttvburh Pluate (Galu Co v NV 1R. , 313 U S 146. 162 ( 1941)
Rules and Regul.tinoni s of the Board. Sees 102 67(fl arll 102 h9(c)
260 NLRB No. 170
1291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. 4
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 corporation with an office and
place of business in Memphis, Tennessee, has been
engaged in the storage and distribution of whole-
sale merchandise. Annually, Respondent, in the
course and conduct of its business operations, sold
and shipped from its Memphis, Tennessee, facility
products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Ten-
nessee. Annually, Respondent, in the course and
conduct of its business operations, purchased and
received at its Memphis, Tennessee, facility prod-
ucts, goods, and materials valued in excess of
$50,000 directly from points outside the State of
Tennessee.
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
Highway and Local Motor Freight Employees,
Local Union No. 667, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
' On January 12, 1982, Respondent filed with the Board a motion as-
serting that as a result of certain changes in the unit, related to Respond-
ent's security needs, there is a substantial question as to whether certain
classifications are now properly included in the certified unit The Gener-
al Counsel filed a brief in opposition. Respondent seeks a remand to re-
consider and to determine that issue. We find Respondent's motion with-
out merit since its refusal to bargain relates to the entire unit, not just the
portion of the unit it seeks to clarify, and therefore our determination
that Respondent violated Sec 8(a)(5) and (I) by refusing to bargain
would be unaffected by any determination that the unit should be clari-
fied.
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 full-time and regular part-time production,
warehouse and maintenance employees includ-
ing order pullers, lift operators, checkers,
repack, sanitation, inventory control employ-
ees at the Employer's 4834 Mendenhall Road
location in Memphis, Tennessee, excluding all
office clericals truck drivers, guards, and su-
pervisors as defined in the Act.
2. The certification
On July 18, 1980, 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 26, 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 February 26, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 3, 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 March 18, 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
March 18, 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.
1292
SOUTHERN STATES DISTRIBUTION. INC.
IV. THE EFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Southern States Distribution,
Inc., set forth in section III, above, occurring in
connection with its operations described in section
I, above, have a close, intimate, and substantial re-
lationship 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 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. Southern States Distribution, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Highway and Local Motor Freight Employ-
ees, Local Union No. 667, affiliated with Interna-
tional 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 production,
warehouse and maintenance employees including
order pullers, lift operators, checkers, repack, sani-
tation, inventory control employees at the Employ-
er's 4834 Mendenhall Road location in Memphis,
Tennessee, excluding all office clericals, truck driv-
ers, 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 February 26, 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 March 18, 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,
Southern States Distribution, Inc., Memphis, Ten-
nessee, 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 Highway and
Local Motor Freight Employees, Local Union No.
667, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time production,
warehouse and maintenance employees includ-
ing order pullers, lift operators, checkers,
repack, sanitation, inventory control employ-
ees at the Employer's 4834 Mendenhall Road
location in Memphis, Tennessee, excluding all
office clericals, truck drivers, guards, and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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:
(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 Southern States Distribution, Inc.,
copies of the attached notice marked "Appendix. "'
Copies of said notice, on forms provided by the
Regional Director for Region 26, 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 26,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
I5 n 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 L abor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI 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 Highway and Local Motor Freight Em-
ployees, Local Union No. 667, affiliated with
International 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 employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WII.L, 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 produc-
tion, warehouse and maintenance employees
including order pullers, lift operators, check-
ers, repack, sanitation, inventory control em-
ployees at the Employer's 4834 Mendenhall
Road location in Memphis, Tennessee, ex-
cluding all office clericals, truck drivers,
guards, and supervisors as defined in the
Act.
SOUTHERN STATES DISTRIBUTION,
INC.
1294