Times Square Stores Corp.

In the Matter of TIMES SQUARE STORES CORPORATION , EMPLOYER AND PETITIONER and RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. of L., UNION Case No. 2-RM-5O.Decided August 31, 1948 DECISION AND DIRECTION Pursuant to a Stipulation for Certification upon Consent Election executed on June 28, 1948, by the Employer and the Retail Clerks In- ternational Association, A. F. of L., herein called the A. F. of L., an election by secret ballot was held on July 2, 1948, under the direction and supervision of the Regional Director for the Second Region. As discussed below, United Retail and Wholesale Employees Union, Local 830, C. I. 0., herein called Local 830, had theretofore repre- sented the employees. However, it could not appear on the ballot because it was not in compliance with the filing requirements.of Sec- tion 9 of the Act. The A. F. of L. was the only Union appearing on the ballot. Upon the conchision of the election, a Tally of Ballots was furnished the parties in accordance with the Rules and Regulations of the Board. The Tally showed that the votes were distributed as follows : Approximate number of eligible voters______________________ 379 Void ballots----------------------------------------------- 0 Votes cast for Retail Clerks International Association, AFL__ 58 Votes cast against participating labor organization----------- 1 Valid votes counted------------------------- ---------------------------------------- 59 Challenged ballots----------------------------------------- 234 Valid votes counted plus challenged ballots---------------- 293 Thus it appears that the challenges are sufficient in number to affect the results of the election. On July 9, 1948, Objections to the Election were filed on behalf of six individual employees. On July 12, 1948, Objections were filed by Local 830. Acting pursuant to Section 203.61 of the Board's Rules and Regulations, the Regional Director investigated the Challenges and Objections, and issued his Report on Objections and Challenges on July 26, 1948. 79 N L. R B, No. 50. 361 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In his Report, the Regional Director overruled the Objections filed on behalf of the individuals on the ground that they were acting as agents for a non-complying union, and the Objections filed by Local 830 on the ground that it had not complied with Section 9 (f), (g), and (h) of the Act.' The Regional Director made no findings or recom- mendations with respect to the challenges, and referred them to the Board for its determination. The Employer filed exceptions to the Report on Objections and Challenges but did not take issue with the findings as-to the Objections. No other exceptions were filed 2 The Regional Director's rulings on, objections are hereby affirmed. Statement of the facts The Employer operates warehouses and a chain of retail stores. throughout New York City, selling general merchandise. In Septem- ber 1946, Local 830 was certified by the New York State Labor Rela- tions Board as the collective bargaining representative of the Em- ployer's store and warehouse employees. On or about November 11, 1946, the Employer and Local 830 entered into a contract; the expira- tion date of this contract was April 1, 1948. On February 26, 1948, Local 830 advised the Employer of its desire to renegotiate the contract which was to expire April 1, 1948. There- after, the contract was extended orally to April 30, 1948. On April 21, 1948, the Employer received a request for recognition from the A. F. of L. On April 23, 1948, the Employer filed the petition in this, case. On the same day, April 23, 1948, Local 830 called a strike. That strike is still on. On April 26, 1948, the same six individual employees mentioned above as filing Objections also filed charges under Section 8 (a) (1) and (2) of the Act against the Employer 3 These charges were dis- missed by the Regional Director on June 16, 1948, on the ground that the six individuals filing the charges were acting as agents for Local ' The action of the Regional Director in overruling the Objections on the grounds stated was in accord with Board policy. Matter of Norcal Packing Company, Case No. 20-R-2221, dated June 4, 1948 . See, also , Matter of Westinghouse Electric Corporation, 78 N L R B 315. 2 Counsel for the individuals filed a letter in the nature of exceptions to the Regional Director's Report on Objections and Challenges . Section 203 61 of the Board's Rules and Regulations permits exceptions to a Report on Objections to be filed by the "parties" to the representation proceeding We do not consider the individual employees to be parties to the instant proceeding within the definition of "party" in Section 203 .8 of the Rules and Regulations , and therefore we shall not entertain the aforesaid exceptions . See Matter of Westinghouse Electric Corporation , 78 N. L R B. 315. Cf. Matter of The Univts Lens Company, Case No. 9-RD-20 (order dated August 18, 1948 ), a decertification proceeding where the non-complying union's name had been placed on the ballot, and its exceptions were ordered (ou.ulered on the merit, 3 These charges alleged that the A. F. of L was company dominated and that the Employer had interfered with the rights guaranteed said individual employees under Section 7 of the Act by compelling them and other employees to attend meetings of,the A F. of L on company time and property , and by favoring and assisting the A. F. of L. in other respects ( Case No. 2-CA-273). TIMES SQUARE STORES CORPORATION 363 830, a non-complying union. On appeal, the dismissal was affirmed on July 26, 1948, by the General Counsel. On June 30, 1948, another individual employee filed charges against the Employer under Section 8 (a) (1), (2), and (3) of the Act.-' The 8 (a) (1) and (2) portions of these charges were dismissed by the Regional Director on August 12, 1948, on the basis of voluntary post- ing of notices by the Employer;' and 8 (a) (3) charge was dismissed for lack of merit. On July 1, 1948, three other individual employees filed a charge alleging violations of Section 8 (b) (1) of the Act by the A. F. of L.6 This charge was dismissed by the Regional Director because on its face it alleged conduct on the part of the Employer rather than by the A. F. of L. No appeal to the General Counsel has been taken from the dismissals of the charges filed on Julie 30 and July 1, respectively, and the time to appeal therefrom has expired. On July 2, 1948, the election was held. Local 830 was not per- mitted to have observers at the election because it was not a party thereto. Upon the entire record in the case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. A gEestion affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 3. The disposition of challenges Board agents challenged 121 ballots' cast by individuals.hired as replacements for the striking employees. The challenges were made pursuant to Local 830's notification to the Board agents that the strike was caused by the unfair labor practices of the Employer, that the strikers were unfair labor practice strikers entitled to reinstatement, and that their replacements therefore were "temporary." The Employer and the A. F. of L. jointly challenged the voting eligibility of the 109 strikers on two grounds : (1) that they had lost their status as employees of the Employer by resorting to a strike be- 4 These charges were similar to those filed previously except that they referred to stores of the Employer other than those involved in the earlier charges, and added a charge of discrimination with regard to one employee ( Case No 2-CA-325). The Regional Director's investigation as to all the charges mentioned herein disclosed that before the date of the strike, the Employer did assist the A. F. of L . Union in its campaign to organize the employees , but that there was no evidence of any assistance after that date ; and that for 21 days from June 11 to July 2, 1948, the Employer voluntarily posted a notice , similar in substance to notices conventionally required in cases involving violations of Section 8 (a) (1) of the Act a This charge alleged substantially the same matters that were involved in the earlier charges ( Case No. 2-CB-99). 7 Board agents challenged 4 other ballots because the names of the voters did not appear on the eligibility list agreed upon by the parties . The parties are agreed, and the Regional Director has recommended , that the challenges to these 4 ballot's should be sustained. Accordingly , we hereby sustain the challenges as to these 4 ballots. ' 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore the expiration of the 60-day "cooling-off" period described in Section 8 (d) of the Act; and (2) that they were not entitled to re- instatement because they were "economic strikers" who had been per- manently replaced.$ From the foregoing, and apart from the contention relating to Sec- tion 8 (d) of the Act, the two sets of challenges bring into issue the nature of the strike. If the strike was caused by unfair labor prac- tices of the Employer, then the strikers are entitled to vote. However, if the strike was not caused by unfair labor practices, then the re- placements are'entitled to vote and the strikers are ineligible to vote unless otherwise entitled to reinstatement. (Section 9 (c) (3).) Strikes must be presumed to be "economic" (as distinguished from unfair labor practice strikes) unless they are found by the Board to have been caused by unfair labor practices of the Employer in ques- tion. The determination that a strike was caused by unfair labor practices has been traditionally made by the Board in complaint cases, pursuant to proceedings under Section 10 of the Act. In the platter presently before•us; the Board is asked to resolve this question in a ,representation case, in order to determine the eligibility of certain challenged voters. Because the Labor Management Relations Act of 1947 defines the respective powers of the Board Members acid of the General Counsel, we must first ascertain from that Act whether the Board is empowered to make such a determination when the General Counsel has declined to issue a complaint alleging the commission of unfair labor practices. Section 9 (c) of the Act vests the Board itself with authority to direct elections in representation proceedings and to certify the re- sults thereof. In exercising such authority, the Board is not cir- cuinscribed by any limitations except those specifically described in the Act or in the Rules and Regulations it has issued pursuant thereto. However, Section 3 (d) of the Act, as amended, provides that the General Counsel "shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under Section 10, and in respect of the prosecution of such complaints before the Board." (Emphasis added.) The Congressional Con- ference Reports explains this provision by stating that the General Counsel is to have "the final authority to act in the name of, but in- dependently of any direction, control, or review by, the Board in re- spect of'the investigation of charges and the issuance of complaints of unfair labor practices, and in respect of the prosecution of sucli complaints before the Board." "The Employer and the A F of L further assert that the 121 replacements aie doing and will continue to do the work of the strikers on a permanent basis 9 H Con Rep 510, on H R. 3020, 80 Cong , 1st Sess , p. 37 TIMES SQUARE STORES CORPORATION 365 It is clear, therefore, that the Board may not review the General Counsel's administrative dismissals of unfair labor practice charges, regardless of the grounds for his action . When he refuses to enter- tain unfair labor practice charges, the General Counsel 's action is final and binding on the Board."' Congress evidently intended this and-vise shall , of course , govern ourselves accordingly., Yet it -is,seill the Board, and not the General Counsel, that has exclusive jurisdic- tion over representation proceedings ; proceedings on objections and challenges are unquestionably part of the investigation concerning a question of representation . The issue then arises : May the Board make its own determination, from the facts presented in a representa- tion case record, as to whether a strike was an unfair labor practice strike, not for the purpose of administering Sections 8 or 10 of the Act; but•in,order to dispose of challenges , as part of its-responsibility under Section 9 (c) ? We are constrained to answer this question in the negative. The Act, as written, compels this conclusion . To hold otherwise would not be consistent with the Congressional intent to endow the General Counsel with final aut1io7*y over the issuance and prosecution of com- plaints under Section 10 . It would, in addition , create the undesirable situation of the Board 's acting in practice as a forum for considering the content of charges which the General Counsel, for reasons satis- factory to himself, has thought it proper to dismiss. In the light of the foregoing, we conclude that an initial finding that a strike was caused by unfair labor practices may be made only in unfair labor practice proceedings. No such proceedings are now before us, for those with sole power to initiate them have chosen not to do so. Nor have findings of unfair labor practice on the facts here involved been made in any other proceeding . We therefore have no choice but to find, without further examination of the facts , that the strike was an economic strike, and that the strikers who participated therein are economic strikers. As indicated above, the challenges to the 121 replacements were predicated solely on the ground that they were hired to replace unfair labor practice strikers allegedly entitled to reinstatement. In view of our finding that the strike was an economic strike and the strikers economic strikers, this contention necessarily must be rejected. No contention was made by Local 830 that the strikers were entitled to reinstatement for any other reasons , so no problem arising under the Pipe Machinery case (76 N. L. R. B. 247 ) is before us here. , Under 10 See Matter of Bauer-Schuae+ tzcr Hop an(I Malt CompaulJ, et al . 78 N L It B 327, where the Board sustained challenges to ballots of two employees, on the ground that the General Counsel refused to issue a complaint on unfair labor practice charges filed by these employees under Section 8 (a) (3) of the Act See, also , Matter of The Kinsman Transit Company, 78 N L R B. 78 "366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all the circumstances, we find that the 121 employees in question are permanent employees, and we therefore overrule the challenges as to them. Also, in view of our finding that the 109 strikers are economic strikers who were permanently replaced, we sustain the challenges as to them. Under the circumstances, and in view of the conclusions reached in this decision, we find it unnecessary at this time to pass on the applicability of Section 8 (d) of the Act to the facts of the instant case. DIRECTION As part of the investigation to ascertain representatives for the -purposes of collective bargaining with Times Square Stores Corpora- tion, New York City, New York, the Regional Director for the Second Region shall, pursuant to the Rules and Regulations of the Board, within ten (10) days from the date of this Direction, open and count the ballots of the 121 employees heretofore challenged by Board Agents, and thereafter prepare and cause to be served upon the parties a Supplemental Tally of Ballots, including the count of said challenged ballots. MEMBER REYNOLDS took no part in the consideration of the above Decision and Direction.