Saks and Co.

6S2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive action designed to effectuate the policies of the Act. I shall recommend a broad order because of the past history of antiunion activities engaged in by the Respondent. I shall also recommend that the Respondent offer reinstatement to Brady Ald- ridge to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earn- ings or other benefits he may have suffered by reason of the Respondent's discrimi- nation against him Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include interest in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.] Saks and Company and Retail , Wholesale, Department Store Union, AFL-CIO ; International Ladies' Garment Workers Union, AFL-CIO. Case 13-CA-7337. August 26,1966 DECISION AND ORDER On May 31, 1966, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, exceptions were filed by Respondent and the Charging Party. 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 [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' [The Board adopted the Trial Examiner's Recommended Order]. i Respondent excepts to the Timl Examiner's finding that no evidence was oltered in the instant pioceeding indicating th,it physical knout changes within Respmident's build- ings weie not planned piior to the e nclnmon of the caiher representation hearing, While the record shows that these were some minor changes made, including the expansion and relocation of a few dcpartmenty, these cli,ince, cle.uh had no sianific.Uit impact upon the validity of the initial determination ac to the appropriate unit We therefore agree with the Tiial Examiner's ultimate conclusion that the Respondent violated Section S(a) (5) by failing to bargain with the certified Union 160 NLRB No. 59. SAKS AND COMPANY 683 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On a charge duly filed February 7, 1966, by Retail, Wholesale Department Store Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, herein collectively called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for Region 13 issued a complaint together with a notice of hearing alleging in substance that Saks and Company, herein called the Respondent, or the Employer, refused to bargain with the Union in viola- tion of Section 8(a)(5) of the Act. Respondent filed its answer admitting certain allegations but denying that the unit set forth in the complaint was appropriate for purposes of collective bargain- ing and that the Union was and is the exclusive collective -bargaining representa- tive of the employees in the unit, and alleging that the representation proceedings were unfairly and improperly conducted by the Board. The General Counsel filed and served a motion for judgment on the pleading as did the Charging Party. The motions were considered by Trial Examiner Thomas N. Kessel who denied them and ordered a hearing limited to the litigation of newly discovered or previously unattainable evidence, which Respondent represented that it had. Thereafter, General Counsel moved for a more definite statement, seeking infor- mation concerning the newly discovered or previously unavailable evidence sought to be introduced by Respondent. Respondent voluntarily responded to General Counsel's motion describing the physical nature of new construction which had taken place at Respondent's store in Chicago, but no more. Trial Examiner Paul E. Weil opened a hearing on April 11, 1966, in Chicago, Illinois. At the opening of the hearing, General Counsel renewed his motion for judg- ment on the pleadings. Respondent opposed the motion, indicating that there had been changes in the plans concerning which testimony had been taken in the repre- sentation hearing and proposing also to attempt to demonstrate that the bargaining unit as found by the Regional Director was inappropriate. I denied General Coun- sel's motion, but ruled that I would not take evidence other than newly discovered or previously unavailable evidence in accordance with Trial Examiner Kessel's ruling. The Charging Party then renewed its motion for judgment on the pleadings and moved for additional relief that I should order retroactively any benefits that may be bargained as a result of the hearing, that the retroactivity be set to the date of November 19, the date of the Union's demand, and that the benefits should include any raise in pension benefits granted, grievances or arbitration proceedings which may have been included by the Employer and the employees and the Unions. I denied the motion insofar as it pertained to judgment on the pleadings and with- held ruling as to the latter. Now, in consideration of the record and the authorities, I deny the Charging Party's motion as to retroactivity. I am aware of no Board precedent for such a motion, and I have been furnished none ' by the Charging Party. I am aware of no case where the Board has ordered benefits which have not been bargained by the Union. If and when the Union negotiates a contract, pre- sumably it will negotiate for retroactivity in such respect as it then feels retroac- tivity is necessary. The Board processes may not be substituted for the collective bargaining of the parties. The General Counsel then rested on the pleadings. The Respondent's Evidence The Respondent produced witnesses who described the physical layout of the new building which Respondent had constructed contiguous to its old five-story building. The new building comprises nine stories of which three stories and the basement contain departments which had previously been located in an adjoining building, in leased space which had been connected with Respondent's five-story building by a walkway. The first five stories of the new building either already con- tained or were planned to contain selling departments which had previously occu- pied the five-story building and a one-story building which had been removed to build the nine-story building. It is clear from the evidence that no new depart- ments, either selling or nonselling, had been formed or were under consideration at the time of the hearing. The impact of the changes was to approximately double the selling space and, hence, to expand the space available for the selling depart- ments which had theretofore existed and to relocate the nonselling space which 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had previously been located in the leased quarters in a separate building, expand- ing them slightly. No evidence was offered that any of the changes made were not planned at the time of the representation hearing or that as a result of the reloca- tion and expansion that had taken place since the representation hearing, any employees' duties were changed. As far as the relocation of the nonselling departments is concerned, the only change apparently would be that personnel instead of going back and forth across a walkaway would go up and down in elevators in the nine-story building. This is a matter that was in the contemplation of the parties at the time of representation hearing. During the hearing, Respondent attempted to adduce testimony relating to prob- lems Respondent anticipated it might have in the event it commenced bargaining with the Union in the unit as found by the Board. When I sustained an objection, Respondent offered to prove that the unit as found was "ethnically unbalanced" in that it had a higher percentage of Negro employees included in the unit than was included in the entire store complement. I rejected the offer. Respondent also attempted to adduce evidence that the unit was not like units presumably sought by this Union at another store in Chicago. I sustained an objection to such evidence. In summary, Respondent attempted to adduce and adduced no evidence in the nature of newly discovered or previously unavailable evidence as I understand those expressions. It appears obvious from the record that Respondent sought a hearing in this matter solely for the purpose of relitigatmg the representation case. Accord- ingly, no new or previously undiscovered evidence having been adduced, the allega- tions in the complaint with respect to the unit, and the representative status of the Union must be found to be true, and my findings of fact and conclusions are based thereon.' Accordingly, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a corporation, maintains a place of business in Chicago , Illinois, where it is engaged in the sale of men's and women's wearing apparel and related merchandise at retail. During the past year, Respondent had gross revenues from sales in excess of $500,000 and caused to be shipped to its store in Chicago goods valued in excess of $50,000 from points outside the State of Illinois. Respondent is and at all times material herein has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 1. All nonselling employees of the Respondent's Michigan Avenue, Chicago, Illinois, retail store and St. Clair Building Annex including stockwomen, stockmen, selling department clericals, floor cashiers, wrappers and inspectors, elevator opera- tors, doormen, drivers, display employees, general maintenance employees, store engineer and assistants, fitters in the alteration departments, alteration clerks, sec- tion managers, and employees in the supply, marking room, millinery workroom, corset alteration, receiving, shipping and delivery, and returned goods departments but excluding all selling employees, office clerical employees, employees represented by other labor organizations, guards, managerial employees, confidential employees, and all supervisors, as defined in the Act, constitute a unit appropriate for the pur- pose of collective bargaining within the meaning of Section 9(b) of the Act.2 'After the hearing the General Counsel filed a motion to correct the tianscript No objections having been filed theieto, and it appearing proper, the motion is granted and the record is corrected as prayed therein 2 The record reveals that the St. Clair Building Annex is no longer occupied, the depart- ments therein having been moved to the basement, (ith, 7th, and 8th floors of the new building. To that extent the unit changed from that alleged in the complaint and found in the representation hearing However, the Respondent has 2 years to run on its present lease at the St. Clair Building Annex ; the space is presently unoccupied and the Respond- ent has no plans for the occupancy thereof In the event that Respondent reestablishes any presently existing activities in the space In the St Clair Building Annex, the em- ployees engaged therein will remain in the unit if they are within the unit as it is presently constituted SAKS AND COMPANY 685 2. On or about November 19, 1965, the Regional Director for Region 13 issued his Supplemental Decision and Certification of Representative certifying that the Union had been designated and selected by a majority of the employees of the employees of the Respondent in the unit set forth above as the collective-bargaining representative of the employees in the said unit and the Union continues to be such representative. 3. On or about December 3 and January 26, the Union has requested and is requesting Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive collective-bargaining representative of all the employees in the said unit. At all times Respondent has refused and. continues to refuse to bargain collectively with the Union as the exclusive bargaining representative of all the employees in the unit described above. By. this refusal I find Respondent violated Section 8 (a) (5) and. (1) of the Act. , IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, occurring. in connection with its operations set forth in section I, have a close, intimate, and substantial relation 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. Upon 'the foregoing findings' of fact and the entire record in the case, including the representation proceedings, I make the following: - CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All nonselling employees of the Respondent's Michigan Avenue, Chicago, Illinois, retail store and St. Clair Building Annex including stockwomen, stockmen, selling department clericals, floor cashiers , wrappers and inspectors, elevator opera- tors, doormen, drivers, display employees, general maintenance employees, store engineer and assistants, fitters in the alteration departments, alteration clerks, sec- tion managers, and employees in the supply, marking room, millinery workroom, corset alteration, receiving, shipping and delivery, and returned goods departments but excluding all selling employees, office clerical employees and employees repre- sented by other labor organizations, guards, managerial employees, confidential employees, and all 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 on or about' December 3, 1965, the Union has been and is the exclu- sive representative for the purpose of collective bargaining of the employees in the unit described above. 5. By refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in the appropriate unit on December 3, 1965, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5)and (1) of the Act. 6. The 'aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and' (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, and in the representation proceedings, I recommend that the Respondent, Saks and Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Retail, Wholesale Department Store Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following unit: All nonselling employees of the Respondent's Michigan Avenue, Chicago, Illinois, retail store and St. Clair Building Annex including stockwomen, stockmen, selling department clericals, floor cashiers, wrappers and inspectors, elevator operators, doormen, drivers, display employees, general maintenance employees, store engineer and assistants, fitters in the alteration departments, alteration clerks, section man- agers, and emloyees in the supply, marking room, millinery workroom, corset 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alteration, receiving, shipping and delivery , and returned goods departments but excluding all selling employees , office clerical employees, employees represented by other labor organizations, guards, managerial employees , confidential employees, and all supervisors, as defined in the Act. (b) Interfering with the efforts of Retail, Wholesale Department Store Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, to negoti- ate for or represent the employees in the said appropriate unit as the exclusive bargaining agent. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Upon request bargain collectively with Retail , Wholesale Department Store Union, AFL-CIO, and International Ladies' Garment Workers Union , AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above, with respect to rates of pay, wages , hours of employment, and other condi- tions of employment; and if an understanding is reached embody such understand- ing in a signed agreement. (b) Post at its store in Chicago , Illinois, copies of the attached notice marked "Appendix." 3 Copies of said notice to be furnished by the Regional Director for Region 13, immediately upon receipt thereof after being duly signed by Respond- ent's representative, shall be posted by it and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing , within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.4 3In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words " the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order" ' In the event that this Recommended Order is adopted by the Board this provision shall be modified to read : "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply hereisith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Retail, Wholesale Depart- ment Store Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, as the exclusive representative of the employees in the bar- gaining unit described below. WE WILL NOT interfere with the effort of Retail Wholesale Department Store Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL- CIO, to negotiate for or represent as the exclusive bargaining agent the employees in the bargaining unit described below. WE WILL, upon request, bargain with the above-named Union as the exclu- sive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment and other conditions of employment, and if an understanding is reached embody such understanding in a signed statement. The bargaining unit is: All nonselling employees of the Respondent's Michigan Avenue, Chicago, Illinois, retail store and St. Clair Building Annex including stockwomen, stockmen, selling department clericals, floor cashiers, wrappers and inspec- tors, elevator operators, doormen, drivers, display employees, general main- tenance employees, store engineer and assistants, fitters in the alteration departments, alteration clerks, section managers, and employees in the sup- JUSTESEN'S FOOD STORES, INC. 687 ply, marking room, millinery workroom, corset alteration, receiving, shipping and delivery, and returned goods departments but excluding all selling em- ployees. office clerical employees, employees represented by other labor organizations, guards, managerial employees, confidential employees and all supervisors, as defined in the Act. SAKS AND COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) 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 employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi- nois 60604, Telephone 828-7597. Justesen's Food Stores, Inc., Justesen's Rosedale, Inc., and R. J. Agerton' and Butchers Union Local 193, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO. Case 31-CA-74 (formerly 21-CA-6662). August 26, 1966 DECISION AND ORDER On March 28, 1966, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondents had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- after, the Charging Party and the General Counsel filed exceptions to the Trial Examiner's Decision, and briefs in support of said excep- tions, and the Respondents filed cross-exceptions and exceptions to said Decision and a supporting 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 [Members Fanning, Jenkins, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire rec- ord in this case, including the Trial Examiner's Decision, the excep- tions, cross-exceptions, and briefs, and hereby adopts the Trial Exam- } As explained in the remedy section of the Trial Examiner 's Decision , his Order, which we adopt, is directed only against the two corporate Respondents. 160 NLRB No. 52. - -