S & L Co., of Billings

S & L CO., OF BILLINGS 903 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. If members have - any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201 , Telephone 596-5386. S & L Co., of Billings and Associated Industries of Billings, Montana and Retail Clerks Union Local No. 1573, Retail Clerks International Association , AFL-CIO. Case 19-CA-3273. June 22, 1966 DECISION AND ORDER On March 25, 1966, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respond- ents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Deci- sion and a supporting brief, to which Respondents filed an answer- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby • affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed December 8, 1965 , by Retail Clerks Union, Local No. 1573, herein the Clerks or the Union, against S & L Co., of Billings and Associated Industries of Billings, Montana 1, herein S & L and Associated or jointly the Respondents , the General Counsel issued a complaint alleging Respondents violated Section 8(a)(5) and (1) of the Act by refusing to continue to bargain with the Union on the ground that the Union did not represent a majority of the employees in the appropriate unit. The answer denied that Respondents had refused to bargain, asserted the dates on which it had bargained and stated it was willing to continue bargaining. This proceeding with the General Counsel and Respondents represented was heard by Trial Examiner John F. Funke at Billings , Montana, on March 1, 1966. At the conclusion of the hearing the parties waived the filing of briefs. 1 The names of Respondents appear as amended at the hearing. 159 NLRB No. 82. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT S & L Respondent S & L is a retail store engaged in the sale of "soft" goods at Billings, Montana. While Respondent is a part of an organization of other retail stores under common ownership in Montana and Minnesota no facts were introduced to establish whether these stores comprised a single employer for the purposes of assertion of jurisdiction by the Board nor were any sales figures introduced to establish that S & L met the Board's jurisdictional standards for retail enterprises.2 It was agreed that Respondent S & L was a. member of Respondent Associated which performed services for and gave advice to its members-in the general opera- tion of their business, including labor management relations. Respondent Asso- ciated's members engaged in retail industry have a gross annual revenue in excess of $500,000 and purchase merchandise from points outside the State of Montana valued in excess of $50,000 annually. S & L did not, however, engage in multi- employer bargaining as a member of Associated. I do not, therefore consider Sienions Mailing Service, 122 NLRB 81, 84, binding. General Counsel stated that he would rely on the fact that the Board had asserted jurisdiction in Case 19-RC- 3617 to establish continuing jurisdiction here. Respondent, moreover, stipulated at the hearing that the facts set forth in paragraph 5, i.e., that Respondents were engaged in commerce within the meaning of the Act, were true. In view of this stipulation and the Board's assertion of jurisdiction in Case 19-RC-3617, I find Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION INVOLVED The Clerks is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The gravamen of the General Counsel's case is set forth in paragraph 10, which reads: Since on or about November 1, 1965, and while contract negotiations with the Union were in progress , Respondents have refused to continue negotiations or to bargain with the Union on the ground that the Union does not represent a majority of the employees in the above-described unit for collective- bargaining purposes. This is the sole issue presented to me. All the witnesses, including the General Counsel's witnesses, agreed that Respond- ents had met and had bargained with the Union on September 1 and 17, and October 20, November 17, and December 22, 1965 and on January 24, 1966. It was not disputed that a meeting between the parties and a Federal mediator was scheduled for the day following the hearing, March 3, 1966. All the witnesses, including the General Counsel's witnesses, agreed that Respondents had not refused to bargain with the Union at any time and that Respondents had never questioned the Union's majority status in the unit. What Respondents had argued, and all the witnesses agreed on this, was that a union-security clause would not be fair to all the employees since the Union had won the election by the nariow margin of seven to five. There had been. according to Respondents, a turnover in per- sonnel since that date and Respondents were unwilling to impose a union-security clause upon what might possibly be a majority of nonunion employees. It did not assert this doubt as grounds for discontinuing bargaining negotiations, it was raised only with respect to the security clause. Respondents offered the Union a main- tenance of membership clause, an offer rejected by the Union. I find not an iota of evidence to support the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 2It was stipulated the S & L's gross sales for 1965 exceeded $ 385,000.