The May Department Stores Co.

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The May Department Stores Company and New Furniture & Appliance Drivers, Warehousemen& Helpers Local 196, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 21-CA-9174 October 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed by New Furniture & Appliance Drivers, Warehousemen & Helpers Local 196, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint dated June 19, 1970, against The May Department Stores Company, 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) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. The complaint alleges, in substance, that on or about March 27, 1970, the Union was duly certified as the exclusive bargaining representative of the Respon- dent's employees in an appropriate unit, and that, on or about April 16, 1970, and thereafter, the Respon- dent refused to recognize or bargain with the Union as such exclusive bargaining representative, although the Union requested the Respondent to do so. On July 20, 1970, Respondent filed its answer to the complaint, and on July 23, 1970, an amendment to said answer, in which it admitted in part and denied in part the allegations contained therein, and requested that the complaint be dismissed. On July 27, 1970, the General Counsel filed with the Board a Motion for Summary Judgment, asserting that there were no issues of fact or law which had not already been litigated before and determined by the Board in a prior representation case,' and requesting an appropriate order remedying the violations as alleged in the complaint. Thereafter, on July 28, 1970, the Board issued an Order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment i Official notice is taken of the record in the representation proceeding, Case 21-RC-11512, as the term "record" is defined in Sections 102 68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Company, 167 NLRB 151, Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Intertype Company v N L R B, 401 F 2d 41 (C A 4, 1968), Follett Corporation, et a!, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Section 9(d) of the National Labor Relations Act should not be granted. Pursuant thereto, Respondent filed a Response to the Notice to Show Cause with a supporting affidavit. 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. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary Judgment The record establishes that pursuant to a petition filed by the Union in the above-mentioned represent- ation case, and following a hearing before a Hearing Officer of the Board, the Regional Director, on January 30, 1970, issued his Decision and Direction of Election, in which he found appropriate a unit of warehouse employees,',, as more fully described here- inafter. Thereafter, the Respondent filed with the Board a timely Request for Review of the Regional Director's Decision, and a Motion to Augment said request, in which it raised various issues concerning the scope and composition of the unit which the Regional Director found appropriate. By telegram dated February 26, 1970, the Board denied the Request for Review and the Motion to Augment for the reason that they raised no substantial issues warranting review, except as to the unit placement of the timekeeper, cashier, receptionist, and assistant timekeeper/cashier, which issues, the Board stated, were best resolved by the challenge procedure. On February 27, 1970, an election was held, in which a majority of the valid ballots were cast for the Union.2 The Union was certified on March 27, 1970. By letter dated April 16, 1970, the Union requested the Respondent to bargain collectively. Respondent, by letter dated April 20, 1970, refused to bargain collectively with the Union, and on April 22, 1970, the Union filed the charge upon which these proceedings are predicated.3 In its Response to the Notice to Show Cause, Respondent predicates its refusal to bargain solely upon its contention that the certified unit is inappropriate. Of the various unit issues raised in its Request for Review, the Respondent's response raises specifically only the issues concerning the exclusion of the workroom employees, timekeeper, and cashier, 2 Following the election , certain challenges were resolved by stipulation of the parties As the Petitioner's majority was established following the count of such challenged ballots, the remaining challenges and the Petitioner's objections were not resolved 3 In its answer to the complaint Respondent raises a question as to the filing and service of the charge. Timely filing and service of the charge is established by unchallenged documentary evidence attached to the Motion for Summary Judgment 186 NLRB No. 17 THE MAY DEPARTMENT STORES contending that by excluding them from the unit the Board erred as a matter of law. It is well settled that in the absence of newly discovered or previously unavailable evidence, a respondent in a Section 8(a)(5) proceeding is not entitled to relitigate issues which were or could have been raised in the prior representation proceeding.4 As all contentions now made were raised at the earlier hearing in the representation case, and were consid- ered and, except as noted, rejected by the Board in its denial of review,5 and as all factual allegations of the complaint are admitted by Respondent's answer to the complaint or stand admitted by the failure of Respondent to controvert the averments of the General Counsel's motion, there are no matters in issue requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACTS 1. THE BUSINESS OF THE RESPONDENT Respondent, a corporation with a business and warehouse in Los Angeles, California, is engaged in the operation of a nationwide retail department store enterprise. During the course and conduct of its business operations during the calendar year 1969, a representative period , the Respondent purchased and received goods and materials valued in excess of $50,000 directly from outside the State of California. During the same period of time , the Respondent sold products valued in excess of $500,000. We find that Respondent is, and has been at all times material hereto, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED New Furniture & Appliance Drivers, Warehouse- men & Helpers Local 196, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 4 Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S . 146; The Sheffield Corporation, 163 NLRB 180 ; Collins & Aikman Corporation, 160 NLRB 1750. 5 As noted the Board, while denying the Respondent's Request for Review with respect to the basic appropriateness of the warehouse unit, left for subsequent resolution through challenge procedures certain unit placement issues. Among them were the placement of the timekeeper and the cashier, whose exclusion from the certified unit the Respondent now relies on as part of its defense to the complaint . It is not clear from the record whether the timekeeper and the cashier cast challenged ballots; in any event, the question of their unit placement has not yet been resolved. The fact that such question has not yet been resolved is not , however, a valid defense to the complaint. It is clear that however that question might ultimately be resolved, its resolution cannot affect either the basic III. THE UNFAIR LABOR PRACTICES A. The Representation Proceedings 1. The unit 87 The following employees of the Respondent consti- tute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All warehouse employees, including heads of stock and assistants to the furniture buyers, employed at the Respondent's service building located at Jefferson Boulevard and Grand Avenue in Los Angeles, California; excluding all other employees, including workroom employees, office clerical employees, timekeeper, cashier, receptionist, assistant timekeeper and cashier or mail distribution girl, guards, and supervisors as defined in the Act. 2. The certification On or about February 27, 1970, a majority of the employees of Respondent in said unit, in an election by secret ballot conducted under the supervision of the Regional Director for Region 21, selected the Union as their representative for the purpose of collective bargaining with Respondent, and on or about March 27, 1970, the Regional Director for Region 21 certified the Union as the collective- bargaining representative of the employees in said unit, and the Union continues to be such representa- tive. B. The Request To Bargain and the Respon- dent's Refusal Commencing on or about April 16, 1970, and continuing to date, the Union has been requesting the Respondent to bargain collectively with it with respect to wages, hours, and working conditions of the employees in the appropriate unit. At all times since on or about April 20, 1970, Respondent admittedly has refused to recognize and bargain collectively with the Union as exclusive collective-bargaining repre- sentative of all employees in said unit. Accordingly, we find that the Respondent has, since on or about April 20, 1970, refused to bargain appropriateness of the certified warehouse unit, the Union's majority therein, or the ability of the parties to bargain in the certified warehouse unit. See MarSalle, Inc., 173 NLRB No. 69 (second through fifth paragraphs of the section of the TXD entitled "Ruling on Motion for Summary Judgment"); Houston Chronicle Publishing Company, 130 NLRB 1243, 1245-46. Moreover, as the Respondent did not request review of the Regional Director's actions with respect to the unresolved issues, it is, for the reasons stated in MarSalle, Inc., supra, precluded in this proceeding from defending its refusal to bargain on the ground that those employees were improperly excluded from the unit. This does not, however, preclude bargaining concerning their unit placement or, after compliance with our order herein, filing a petition seeking to resolve that issue, pursuant to Sec. 102.60(b) of the Board's Rules and Regulations. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively with the Union as the exclusive bargain- ing representative of the 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 PRACTICE 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 com- merce 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 represent- ative of all employees in the appropriate unit and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. The May Department Stores Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. New Furniture & Appliance Drivers, Ware- housemen & Helpers Local 196, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees, including heads of stock and assistants to the furniture buyers, employed at the Respondent's service building located at Jefferson Boulevard and Grand Avenue in Los Angeles, California; excluding all other employees, including workroom employees, office clerical em- ployees, timekeeper, cashier, receptionist, assistant timekeeper and cashier or mail distribution girl, guards, and 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 March 27, 1970, the above-named labor organization has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 20, 1970, and at all times thereafter, to bargain with the 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 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 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 Relations Board hereby orders that the Respondent, The May Department Stores Company, Los Angeles, California, 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 New Furniture & Appliance Driv- ers, Warehousemen & Helpers Local 196, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All warehouse employees, including heads of stock and assistants to the furniture buyers, employed at the Respondent's service building located at Jefferson Boulevard and Grand Avenue in Los Angeles, California; excluding all other employ- ees, including workroom employees, office clerical employees, timekeeper, cashier, receptionist, as- sistant timekeeper and cashier or mail distribution girl, guards, and supervisors as defined in the Act. THE MAY DEPARTMENT STORES (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 rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its service building located at Jefferson Boulevard and Grand Avenue, in Los Angeles, California, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representa- tive, shall be posted by Respondent 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 21, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that the Board's 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 be changed to 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 with New Furniture & Appliance Drivers, Ware- housemen & Helpers Local 196, International Brotherhood of Teamsters, Chauffeurs, Ware- 89 housemen & Helpers of America, as the exclu- sive 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 understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All warehouse employees, including heads of stock and assistants to the furniture buyers, employed at the Respondent's service build- ing located at Jefferson Boulevard and Grand Avenue in Los Angeles, California; excluding all other employees, including workroom employees, office clerical employ- ees, timekeeper, cashier, receptionist, assist- ant timekeeper and cashier or mail distribu- tion girl, guards, and supervisors as defined in the Act. THE MAY DEPARTMENT STORES COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 849 South Broadway, Eastern Columbia Building, Los Angeles, California 90014, Telephone 213-688-5200.