Montgomery Ward & Co., Inc.

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Retail Clerks International Association, Local No. 1612 , AFL-CIO. Case 19-CA-3571. June 19,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Upon a charge filed by Retail Clerks International Association, Local No. 1612, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint dated February 1, 1967, against Montgomery Ward & Co., Incorporated, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices 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, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about December 8, 1966, the Union was duly certified by the Board' as the exclusive bargaining representative of Respondent's employees in the unit found appropriate by the Board and that, since on or about January 6, 1967, and thereafter, Respondent has refused and is refusing to recognize or bargain with the Union as such exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 7, 1967, the Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint. It contended that the unit described in paragraph 8 of the complaint did not constitute a unit appropriate for bargaining within the meaning of Section 9 of the Act, and that the determination of the unit had been controlled by the extent to which the Union had succeeded in its organizational efforts, in violation of Section 9(c)(5) of the Act. On March 23,1967, the General Counsel filed with the Board a motion for summary judgment, asserting that the sole defense and issue raised by the Respondent was previously litigated in Case 19-RC-4003, and that there were no issues of fact or law requiring a hearing in this proceeding. For these reasons, the General Counsel moved for the issuance of a Decision and Order finding the violations as alleged in the complaint. Thereafter, on March 27, 1967, the Board issued an order transferring proceeding to the Board, and, on the same date, a notice to show cause on or before April 10, 1967, why the General Counsel's motion for summary judgment should be granted. On April 4, 1967, the Respondent filed an answer opposing General Counsel's motion for summary judgment. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary J udgment In its answer to the motion, Respondent contends, inter alia, that it is entitled to an evidentiary hearing to insure full litigation of certain alleged facts. This contention is without merit. Respondent's answer to the complaint and its answer to the General Counsel's motion establish that Respondent is seeking to relitigate matters, which were, or which could have been, decided by the Board in the prior representation proceeding: specifically, the appropriateness of the certified unit under the Act. The record before us establishes that on July 25, 1966, the Union filed a petition in Case 19-RC-4003, seeking to represent all regular full-time and regular part-time employees employed by the Employer at its catalog stores located in Kennewick, Pasco, and Richland, Washington. After a hearing, the Acting Regional Director for Region 19 issued a Decision and Direction of Election on September 30, 1966, in which he found appropriate for bargaining the following unit of employees: All regular full-time and regular part-time employees employed by the Employer at its catalog sales stores in Kennewick, Pasco, and Richland, Washington, excluding confidential employees, guards, and store managers and other supervisors as defined in the Act. Following the Decision and Direction, the Respondent filed a timely request for review, contending that the Acting Regional Director's unit finding was inappropriate. On October 26, 1966, the Board denied review by telegraphic order. On November 29, 1966, following a secret mail- ballot election conducted under the supervision of the Regional Director of Region 19, the mail ballots were opened and counted: 13 votes were cast for Petitioner and 1 against. There were no challenged ballots. On December 8, 1966, the Union was certified by the Acting Regional Director for Region 19 as the exclusive bargaining representative of Respondent's employees in the unit found appropriate by the Board. On December 15, 1966, the Union requested that the Respondent bargain collectively with it. This request was refused on January 6, 1967, and on January 17, 1967, the Union filed the charge upon which these proceedings are predicated. It is well settled that in the absence of newly discovered or previously unavailable evidence, a ' Decision and Certification of Representative in Case 19-RC-1003 (not published in NLRB volumes) 165 NLRB No. 78 MONTGOMERY WARD & CO. respondent in an 8(a)(5) proceeding is not entitled to litigate issues which were or could have been raised in a related representation proceeding." Here, the Respondent has not offered to adduce at a hearing any newly discovered or previously unavailable evidence.; Inasmuch as the Respondent has or could have litigated in the representation proceeding the issues it presently asserts, it has not raised any issue which is properly triable in the instant unfair labor practice proceeding. As all material issues have been previously decided by the Board, or are admitted by Respondent, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's motion for summary judgment is granted.4 On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation with headquarters located in Chicago, Illinois, operates a nationwide chain of retail and mail order catalog stores. Respondent's three catalog stores located in Kennewick, Pasco, and Richland, Washington, are involved herein. During the course and conduct of the Respondent's catalog store operations in the above cities, Respondent does an annual retail business valued in excess of $500,000. During the calendar year 1966, the Respondent purchased goods and merchandise valued in excess of $50,000, which purchases were shipped to the above stores from outside the State of Washington. Respondent admits, and we find, that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, Local No. 1612, AFL-CIO, is a labor organization within the meaning of Section 2(6) and (7) of the Act. z Pittsburgh Plate Glass Company v N L.R B , 313 U S 146, Collins &AikmanCorporation, 160 NLRB 1750. _ 3 Respondent's contention that the Board's unit determination was controlled by the extent to which the Union succeeded in its organizational efforts, contrary to Sec 9(c)(5) of the Act, is clearly an issue which Respondent could have raised in the representation proceeding. As the Respondent' s request to the Board for review of the Regional Director's unit determination demonstrates , Respondent failed to do so At any rate, if Respondent's contention with regard to the alleged violations of Sec 9(c)(5) is based, as it would appear, on its claim that the Union made an inadequate showing of interest in the appropriate unit, its position is wholly without foundation Board regulations requre only that a union have a 30-percent showing of interest in the aggregate unit for which it petitions , and not , as Respondent claims, in each subdivision or location Assuming therefore, that Respondent could prove its charge that the Union did not have a 30-percent showing of interest at one of the three store locations which comprise the unit, this fact would be immaterial to the III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 653 The following employees of Respondent constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time employees employed by the Employer at its catalog sales stores in Kennewick, Pasco, and Richland, Washington, excluding confidential employees, guards, and store managers and other supervisors as defined in the Act, 2. The certification On or about November 29, 1966, a majority of the employees of Respondent, voting in a secret .nail- ballot election conducted among the employees of said unit under the supervision of the Regional Director for Region 19, designated the Union as their representative for the purpose of collective bargaining with Respondent. On December 8, 1966, the Board certified the Union as the exclusive collective-bargaining representative of the employees in said unit and the Union continues to be such representative. B. The Request to Bargain and the Respondent's Refusal Commencing on December 15, 1966, and continuing to date, the Union has requested and is requesting Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. On January 6, 1967, and continuing to date, Respondent did refuse, and continues to refuse, to bargain collectively with the Union as exclusive collective- bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining present case If Respondent 's contention is based on an asserted relationship between the " extent of organization" and the three- store unit found, this factor alone would not be determinative of the question whether Sec. 9(c)(5) had been violated In Western and Southern Life Insurance Company, 163 NLRB No. 14, the Board noted, in rejecting a similar agument by the respondent therein, that Sec 9(c)(5) "was merely intended to preclude the Board from basing its unit determination solely on 'extent of organization' in the absence of other criteria of appropriateness " Our unit determination in the instant case clearly rests on such other tests of appropriateness 4 Respondent's contention that the Board is powerless to act upon a motion for summary judgment without first referring the matter to a Trial Examiner has no basis in law or policy. When there are no questions of fact to be determined, and the issues to be resolved are only matters of law, the Board is inherently empowered with discretion to transfer the case directly to itself for decision See E-Z Davies Chevrolet, 161 NLRB 1380. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the employees of the Respondent in the appropriate unit described above in the Board's certification, and that the Union at all times since December 8, 1966, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since January 6, 1967, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit, and that, by such refusal, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship 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. THE REMEDY Having found that the Respondent has engaged 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. CONCLUSIONS OF LAW 1. Montgomery Ward & Co., Incorporated, is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local No. 1612, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and regular part-time employees employed by the Employer at its catalog sales stores in Kennewick, Pasco, and Richland, Washington, excluding confidential employees, guards, and store managers and other 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 December 8, 1966, the above-named labor organization has been the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the 5. By refusing on January 6,1967, 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 practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby engaged 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 Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Montgomery Ward & Co., Incorporated, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment, with Retail Clerks International Association, Local No. 1612, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit; All regular full-time and regular part-time employees employed by the Employer at its catalog sales stores in Kennewick, Pasco, and Richland, Washington, excluding confidential employees, guards, and store managers and other supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by 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 wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at the three stores comprising the appropriate unit copies of the attached notice marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " MONTGOMERY WARD & CO. 655 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with Retail Clerks International Association, Local No. 1612, 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 employees 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 representative of all employees in the bargaining unit described below, with respect to 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 regular full-time and regular part-time employees employed by the Employer at its catalog sales stores in Kennewick, Pasco, and Richland, Washington, excluding confidential employees, guards, and store managers and other supervisors as defined in the Act. MONTGOMERY WARD& CO., INCORPORATED (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 provisions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4532.