Forest City Enterprises

FOREST CITY ENTERPRISES 17 Forest City Enterprises, Inc. and United Food and Commercial Workers International Union, Local 698 f/k/a Retail Clerks Union Local No. 698, AFL-CIO. Case 8-CA-12917 March 3, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on June 15, 1979, and amended on July 31, 1979, by United Food and Commercial Workers International Union, Local 698 f/k/a Retail Clerks Union Local No. 698, AFL-CIO, herein called the Union, and duly served on Forest City Enterprises, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 8, issued a complaint and notice of hearing on July 31, 1979, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 Rela- tions Act, as amended. Copies of the charge, amended 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 complaint alleges in substance that on January 29, 1979, following a Board election in Case 8-RC- 11453, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about May 3, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On August 13, 1979, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On December 21, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 16, 1980, 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- Official notice is taken of the record in the representation proceed- ing, Case 8-RC 11453,. 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 Electrosystenms. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden 4ge Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp 573 (D.CVa., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended 248 NLRB No. 5 mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause and a Cross-Motion for Summary Judgment. 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, its response to the Notice To Show Cause, and its Cross-Motion for Summary Judgment, Respondent repeats the argu- ments, first raised in the representation proceeding, that the Union's certification is invalid because of an erroneous unit determination, and because the Board agent who supervised the December 1, 1978, election at Respondent's store interfered with the proper conduct of the election and engaged in acts which improperly affected the results thereof. The General Counsel argues that all material issues have been previously presented to, and decided by, the Board, and that there are no litigable issues of fact requiring a hearing. We agree with the Gener- al Counsel. Our review of the record herein, including the record in Case 8-RC-11453, discloses that the Re- gional Director for Region 8 issued a Decision and Direction of Election on October 31, 1978. There- after, Respondent filed a request for review of the Regional Director's Decision and Direction of Election, and the Board, on November 29, 1978, denied the request for review on the ground that it raised no issue warranting review. An election was conducted on December 1, 1978. The tally showed 36 votes cast for, and 22 against, the Union, with 6 challenged ballots. Respondent filed timely objec- tions to the election. On January 29, 1979, the Re- gional Director for Region 8 issued a Supplemental Decision and Certification of Representative, over- ruling Respondent's objections. Respondent filed a timely request for review of the Regional Direc- tor's Supplemental Decision and Certification of Representative. The Board, on April 5, 1979, denied Respondent's request for review on the ground that it raised no substantial issues warrant- ing review. 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 FOREST CITY ENTERPRISES 17 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, and deny Respon- dent's Cross-Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times ma- terial herein, an Ohio corporation with its principal office and place of business in Brook Park, Ohio, where it is presently, and has been at all times ma- terial herein, engaged in the business of retail sales of building supplies and consumer goods. Respon- dent maintains other retail stores in and around Chicago, Illinois; Detroit, Michigan; Cleveland, Ohio; and Akron, Ohio. Respondent's Rolling Acres store located in Akron, Ohio, is the only store involved in this proceeding. In the course and conduct of its business operations, Respondent an- nually receives gross revenues in excess of $500,000, and annually receives goods valued in excess of $10,000 directly from points located out- side the State of Ohio. 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. 11. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers Interna- tional Union, Local 698 f/k/a Retail Clerks Union Local No. 698, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. I See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c). II. 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 selling and non-selling employees, including department heads, appliance salesmen and home improve- ment salesmen, employed by the Employer at its Rolling Acres, Akron, Ohio store; but ex- cluding all professional employees, guards and supervisors as defined in the Act. 2. The certification On December 1, 1978, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 8, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining represen- tative of the employees in said unit on January 29, 1979, 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 April 12, 1979, 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 May 3, 1979, and continuing at all times thereafter to date, Respondent has re- fused, 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 May 3, 1979, 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. 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 oper- FOREST CITY ENTERPRISES 19 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 com- merce. 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. Forest City Enterprises, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. United Food and Commercial Workers Inter- national Union, Local 698 f/k/a Retail Clerks Union Local No. 698, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time selling and non-selling employees, including department heads, appliance salesmen and home improvement sales- men, employed by the Employer at its Rolling Acres, Akron, Ohio, store; excluding all profession- al employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since on or about January 29, 1979, the above- named labor organization has been and now is the certified and exclusive representative of all employ- ees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By refusing on or about May 3, 1979, 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 prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent 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, Forest City Enterprises, Inc., Akron, Ohio, its offi- cers, 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 United Food and Commercial Workers International Union, Local 698 f/k/a Retail Clerks Union Local No. 698, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All full-time and regular part-time selling and non-selling employees, including department heads, appliance salesmen and home improve- ment salesmen, employed by the Employer at its Rolling Acres, Akron, Ohio store; but ex- cluding all 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 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: (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 FOREST CITY ENTERPRISES '9 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an understanding is reached, embody such under- standing in a signed agreement. (b) Post at Respondent's Rolling Acres, Akron, Ohio, store copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms pro- vided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding 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 8, 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 Labor Relations Board" shall read "Posted Pursu- ant 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 United Food and Commercial Workers International Union, Local 698 f/k/a Retail Clerks Union Local No. 698, 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 represen- tative 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 selling and non-selling employees, including depart- ment heads, appliance salesmen and home improvement salesmen, employed by us at our Rolling Acres, Akron, Ohio, store; but excluding all professional employees, guards and supervisors as defined in the Act. FOREST CITY ENTERPRISES, INC.