Midwest Zayre, Inc.

MIDWEST ZAYRE, INC. Midwest Zayre, Inc. and Retail Store Employees Union Local 880, Retail Clerks International Asso- ciation, AFL-CIO. Case 8-CA-11606 June 9, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on December 21, 1977, by Retail Store Employees Union Local 880, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Midwest Zayre. Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 8, issued a complaint on December 30, 1977, against Respondent, alleging that Respondent had engaged in and was engaging 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 Relations Act, as amended. Copies of the charge, complaint, and no- tice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on November 29, 1977, following a Board election in Case 8-RC- 10991, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that. commencing on or about December 15, 1977, and at all times thereafter, Respondent has refused. and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is re- questing it to do so. On January 9, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 3, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 16, 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to the Notice To Show Cause. Official notice is taken of the record in the representation proceeding. Case 8-RC 10991. 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 Electrosysiems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 ((C.A 4. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967, enfd. 415 F.2d 26 (C.A. 5. 1969 ); Interrvpe Co. v. Penello, 269 F.Supp 573 (D).C.Va., 1967): Follett Corp., 164 NLRB 378 11967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec 9(d) of the NLRA, as amended. 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 and in its brief in opposition to the Motion for Summary Judgment. Respondent admits its refusal to bargain, but denied that it thereby violated Section 8(a)(5) and (1) of the Act. More specifically, Respondent contends that. in adopting the Regional Director's recommendations in the underlying representation case, the Board did not fully consider its exceptions to the Regional Di- rector's Report on Objections. Respondent further contends that the Regional Director did not apply proper precedent in reaching his recommendation with respect to Objection I. Finally, Respondent ar- gues that substantial and material issues of fact exist concerning misrepresentations made by the Union and other conduct of the Union affecting the results of the election. which have not been resolved by the Regional Director's report and which Respondent has not previously been given an opportunity to liti- gate. Respondent contends that in view of these con- siderations there are serious outstanding questions concerning the validity of the Union's certification and that in consequence the Motion for Summary Judgment should be denied. Counsel for the General Counsel argues that Re- spondent's contentions that the election and resulting certification are invalid were presented to and decid- ed by the Board in the underlying representation proceeding. A review of the record herein, including the record in Case 8-RC-10991., shows that on June 24, 1977. the Regional Director approved a Stipulation for Certification Upon Consent Election entered into by the parties.2 Thereafter, an election by secret ballot was conducted on July 21, 1977, among the employ- ees in the stipulated unit. The tally' of ballots issued subsequent to the election shows that, of approxi- mately 99 eligible voters, 91 cast ballots, of which 47 were cast for, and 41 against, the Union. There were two challenged ballots, a number insufficient to af- fect the results of the election. T Ihe stipulated unit is All full-time and part-time selling and non-selling emplosees including employees of leased departments [American Snacks. Inc.. Alden lil- hliner. Inc . Beaconsva, Fabrics. Inc.] and office clerical employees em- ployed at the Zasre Department Store located at 4411 Northfield Road. Walrrenssille Heights. Ohio, but excluding all confidential em- plosees. professolnal emplo)ees. guards. and supervisors as defined in the Act 236 NLRB No. 90 799 DECISIONS OF NAl IO()NAL LABOR RELATIONS BOARD On July 27, 1977, Respondent filed timely objec- tions to conduct affecting the results of the election and to the conduct of the election. Subsequent to conducting an investigation, the Regional Director issued his Report on Objections wherein he conclud- ed that Respondent's objections did not raise sub- stantial or material issues of either fact or lasw with respect to the election and that they were without merit. Further, he recommended that the objections be overruled and that a certification of representative be issued in favor of the LUnion. Thereafter, Respon- dent filed with the Board exceptions to the aforemen- tioned Report on Objections. On November 29, 1977, the Board issued a Decision and Certification of Representative wherein, as stated above, it adopt- ed the Regional Director's findings and recommen- dations and designated the Union as the exclusive representative of the employees in the stipulated unit. By letter to Respondent, dated December 12. 1977, the Union requested Respondent to bargain collec- tively with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. By return letter dated December 15. 1977, Respondent informed the Union that it would not bargain with the Union because it questioned the va- lidity of the certification. Respondent in claiming that the Union's certifica- tion is of doubtful validity first contends, as indi- cated above, that the Board did not fully consider its exceptions to the Regional Director's report on its objections to the election held on July 21, 1977. In this regard it refers to footnote 2 of the Board's Deci- sion and Certification of Representative in Case 8 RC-10991 where the Board stated that. "In the ab- sence of exceptions thereto, we adopt, pro forma. the Regional Director's recommendations with respect to Objection I." As Respondent correctly points out. it excepted vigorously to the Regional Director's ruling recommending that its Objection I be overruled. It did not, however, except to the Regional Director's recommendation with respect to its Objection 2, and it is nothing more than an unfortunate, typographical error that the pro forma statement of footnote 2 of the Board's Decision and Certification of Representative referred to Objection I., rather than Objection 2 as intended. This inadvertent typographical error is, we find, clearly nonprejudicial and Respondent's point- ing it out to us at this time 3 does not raise any new This error could have been qulckl\ corrected. of course, had Respon- dent upon proper motion brought the matter to the attention of the Bo.a-d immediately after issuance of the Decision and C(ertification of Representa- tive in (Case 8 RC 10991. It is hereb) ordered that the aforementioned Decision and Certification of Representatie be, and it hereby is. corrected in the manner described herein matter, or matter not previously considered, warrant- ing reconsideration of our findings and conclusions in Case 8- RC-10991. As for Respondent's other contentions in opposi- tion to the Motion for Summary' Judgment. it pre- sents no newly discovered or previously unavailable evidence nor points to any unusual circumstances. Rather, it is clear that Respondent at this time is attempting to raise issues which were raised and de- termined in the underlying representation case. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously 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 proper- ly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FAC I I IHE BLUSINESS OF RESPONDENT Respondent, a Missouri corporation, is engaged in the operation of a retail sales department store locat- ed at 4411 Northfield Road, Warrensville Heights, Ohio. Annually, in the course and conduct of its business operations, Respondent derives gross reve- nues valued in excess of $500,000 and receives at its facility in Warrensville Heights, Ohio, directly from points located outside the State of Ohio, products valued in excess of $50,000. 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 juris- diction herein. 4See Pittsburgh Plate (;lass Co v. N.' LR.B.. 313 IS. 146. 162 (1941). Rules and Regulations of the Board, Secs. 10267(f) and 102 6 9 (c) 80() MIDWEST ZAYRE. INC. II. THE LABOR ORGANIZA10N INVOIVEI) Retail Store Employees Union Local 880. Retail Clerks International Association, AFL CIO, is a la- bor organization within the meaning of Section 2(5) of the Act. Il. THE UNFAIR LABOR PR\( IICTS A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and part-time selling and non-sell- ing employees including employees of leased de- partments [American Snacks. Inc.. Alden Mil- linery, Inc., Beaconway Fabrics, Inc.] and office clerical employees employed at the Zayre [)e- partment Store located at 4411 Northfield Road. Warrensville Heights, Ohio. but excluding all confidential employees, professional employees. guards, and supervisors as defined in the Act. 2. The certification On July 21, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 8, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on November 29, 1977. 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 Refisual Commencing on or about December 12, 1977. and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about December 15, 1977, and continuing at all times thereafter to date, Respondent has refused. and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 15, 1977, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, b? such refusal. Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a}(5) and ( l ) of the Act. IN I tt: I 1I1:( 01 I it N\Fi\IR lABOR PR\('TICiS I PON ( ()ol:M R( I The activities of Respondent set forth in section 111. above. occurring in connection with its opera- tions described in section 1. above, have a close, inti- mate, 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. \ l111[ REMEDI)Y }laving found that Respondent has engaged in and is engaging in unfair labor practices within the mean- inc 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 ap- propriate unit. and. if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law. we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See AVar-Jac Poultry ( ornpane,, Inc., 136 NLRB 785 (1962): ( ommlerce Company d'h 'a Lamar Hotel, 140 N LRB 226. 229 (1962). enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- net ( onstrulion Cotrlpatni. 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: C')N('It SIONS O[ LAw I. Midwest Za\re. Inc.. is an emplover engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union Local 880, Re- tail Clerks International Association, AFL -CIO,. is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and part-time selling and non-sell- ing employees including employees of leased depart- ments [American Snacks, Inc., Alden Milliners. Inc.. Beaconwa~, Fabrics. Inc.] and office clerical employ- 801 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees employed at the Zayre Department Store located at 4411 Northfield Road, Warrensville Heights, Ohio, but excluding all confidential employees, pro- fessional employees, guards, and supervisors as de- fined 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 November 29, 1977, the above-named la- bor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 15, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive 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, 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 thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)( 1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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, Midwest Zayre, Inc., Warrensville Heights, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Retail Store Employees Union Local 880, Retail Clerks International Associ- ation, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appropri- ate unit: All full-time and part-time selling and non-sell- ing employees including employees of leased de- partments American Snacks, Inc., Alden Millin- ery, Inc., Beaconway Fabrics, Inc.] and office clerical employees employed at the Zayre De- partment Store located at 4411 Northfield Road. Warrensville Heights, Ohio, but excluding all confidential employees, 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 exercise 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 an under- standing is reached, embody such understanding in a signed agreement. (b) Post at 4411 Northfield Road, Warrensville Heights, Ohio, copies of the attached notice marked "Appendix." 5 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 re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, 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. 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 Pursuant 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 Retail Store Employees Union Local 880, Retail Clerks International Association, AFL-CIO, as the ex- clusive 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- 802 MIDWEST ZAYRE, INC. es, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and part-time selling and non- selling employees including employees of leased departments [American Snacks, Inc., Alden Millinery. Inc., Beaconway Fabrics, Inc.] and office clerical employees employed at the Zayre Department Store located at 4411 Northfield Road, Warrensville Heights, Ohio, but excluding all confidential employ- ees, professional employees, guards, and su- pervisors as defined in the Act. MlI)WEST ZAYRE. INC. 803