Sheridan-Peter Pan Studios, Inc.

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheridan-Peter Pan Studios , Inc. and Retail Store Employees Union, Local 300, Retail Clerks Inter- national Association, AFL-CIO. Case 13-CA- 8348 September 27, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On July 12, 1968, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's 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. 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 recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Sheridan-Peter Pan Studios, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Region 13. In the election the Union received a majority of the valid votes cast by the employees of Respondent. On November 28, 1967, the Respondent filed timely objections to the conduct of the election. Briefly stated, the objections were that at a union meeting held on or about October 10, 1967, officers, agents, and representatives of the Union threatened the employees that if they did not cooperate with the Union they would have the tires of their automobiles slashed, acid poured on their cars and car windows, and sugar poured in the gas tanks of their cars. Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation of the issues raised by the objections. The parties were afforded full opportunity to submit and produce evidence bearing on the issues. No formal hearing was held. On December 22, 1967, the Regional Director issued his Report on Objections in which he recommended that the objections be overruled and that a certification of representa- tive be issued. In this Report on Objections the Regional Director found, inter aha, that because the incident com- plained of in the objections had occurred prior to the filing of the petition it could not serve as the basis for setting aside the election of November 20, 1967. In so holding, the Regional Director cited the Board's decisions in Goodyear Tire and Rubber Company, 138 NLRB 453; Pharmaseal Laboratories, Inc., 152 NLRB 1212; and Sheboygan Sausage Company, Inc., 156 NLRB 1490. On Janurary 17, 1968, the Respondent filed with the Board its Exceptions to the Report on Objections. In said exceptions the Respondent urged that the Board ignore the "artificial standards" enunciated in Goodyear Tire and Rubber Compa- ny, supra, limiting objections to election to conduct which occurred subsequent to the filing of the petition for election. Respondent requested that the election be set aside based upon the prepetition conduct it had cited in its Objections to Election and that a new election be conducted. On February 26, 1968, the Board issued its Decision and Certification of Representative finding, inter alia, that Re- spondent's exceptions to the report on objections "raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations." Accordingly, the Board adopted the Re- gional Director's findings and recommendations and, certified that the Union had been selected and designated by a majority of the employees in the appropriate unit as their exclusive representative. THE COMPLAINT CASE TRIAL EXAMINER'S DECISION THE REPRESENTATION PROCEEDING ARrHUR M. GOLDBERG, Trial Examiner Pursuant to a petition filed on October 19, 1967, by Retail Store Employees Union, Local 300, Retail Clerks International Association, AFL-CIO (herein called the Union), and a Stipulation for Certification upon Consent Election, dated October 30, 1967, entered into by the Union and Sheridan-Peter Pan Studios, Inc. (herein called the Respondent), a secret-ballot election in the unit stipulated to by the parties was held on November 20, 1967, under the supervision of the Board's Regional Director for Upon a charge of unfair labor practice filed by the Union on March 28, 1968, in Case 13-CA-8348, the Regional Director for Region 13 on May 1, 1968, issued an Order Consolidating Cases, Consolidated Complaint, and Notice of Consolidated Hearing alleging that Respondent, in violation of Section 8(a)(5) of the National Labor Relations Act, as amended (herein called the Act), had refused to bargain with the Union beginning on or about February 28, 1968, and continuing thereafter! The instant case alleging refusal to I An additional allegation that Respondent had unilaterally in- creased employee benefits in derrogation of its bargaining obligations under the Act was abandoned by General Counsel. 173 NLRB No. 11 SHERIDAN-PETER PAN STUDIOS, INC. 53 bargain was consolidated for hearing with Case 13-CA-8220 which was based upon a charge filed by the Union on January 17, 1968, alleging violations of Section 8(a)(1). and (3) of the Act. The consolidated complaint came on for hearing on June 4, 1968, at which time Respondent orally on the record answered the allegations of the complaint. As to those allegations of the complaint pertaining to Case 13-CA-8348, Respondent denied the commission of any unfair labor practices but it admitted many allegations of the complaint. Respondent admitted the jurisdictional allegations of the complaint, the appropriate unit for bargaining, the results of the election, the Board's certification of the Union as the exclusive representa- tive of the employees in the appropriate unit, and that the Union had, on February 28, 1968, requested it to bargain. As noted, the hearing opened in Chicago, Illinois, on June 4, 1968, with all parties represented. At the close of General Counsel's case on June 5, 1968, I ascertained from counsel for Respondent that its sole defense to the refusal-to-bargain allegation was "that the Board has erroneously and unlawfully issued a certification in this case. The reason being that the Regional Director and the Board have refused and continue to refuse to consider evidence relating to threats and intimidating statements made by Union representatives a short time prior to the filing of the petition." Respondent stated its intention to present witnesses to testify to the nature of that conduct. Under inquiry from the Trial Examiner as to whether this testimony was "in the nature of newly discovered or additional evidence," counsel for Respondent stated that it was not. At this point I advised General Counsel that I would entertain a motion to sever the 8(a)(5) charge (Case 13-CA-8348) and a motion for summary judgment. Counsel for General Counsel so moved, the motion to sever was granted, and Respondent was given leave to file an offer of proof in writing on or before June 17, 1968. General Counsel and the Union were given leave to file their opposition to said offer of proof on or before June 20, 1968. The offer of proof, coupled with an Opposition to Motion For Summary Judgment and the General Counsel's opposition thereto were timely filed and on June 21, 1968, I issued an order rejecting the offer of proof as being related "to matteis alleged to have occurred prior to the filing of the petition in the representation proceeding and . . . therefore irrelevant and immaterial to any issues herein." The offer of proof was marked and received as an exhibit herein and time was afforded to the parties to file briefs directed to the issues in this matter. RULING ON THE MOTION FOR SUMMARY JUDGMENT In its Opposition to Motion for Summary Judgment, Respondent states the basic issue herein as being whether the union certification is valid. Respondent then divides this basic issue into two subsidiary questions. (1) Whether the Trial Examiner is bound absolutely by a prior determination in the representation case that Respond- ent's objections should be overruled. (2) If the Trial Examiner is not so bound, whether the preconditions have been established by the General Counsel for a finding that the Respondent has violated Section 8(a)(5) of the Act. I have carefully considered the record in this proceeding, including the pleadings, Respondent's Opposition to Motion For Summary Judgment, its offer of proof, its initial objec- tions to election, the Regional Director's Report on Objec- tions, Respondent's exceptions thereto, and the Board's Decision and Certification of Representative. As indicated by the issue framed by the Respondent, it is seeking to relitigate in this unfair labor practice proceeding matters which the Regional Director and the Board have decided in the represen- tation case. This it may not do. The gist of Respondent's opposition to General Counsel's motion for summary judg- ment is that the Regional Director and the Board erred in applying to this case the rule of Goodyear Tire and Rubber Company, 138 NLRB 453, limiting objections to election to matters occurring subsequent to the filing of the petition for election. Whether or not the Regional Director in this case erred in applying the rule on the cutoff date for objections is not properly before me for consideration as the same issue was raised by Respondent in its exceptions to the Regional Director's Report on Objections and the Board in ruling on those exceptions has approved the Regional Director's actions. Accordingly, the Board's disposition of the matter constitutes, at this stage of the proceedings, the law of the case and I am foreclosed by the previous action of the Board from reviewing the manner in which the cutoff date on objections was applied in this case. Schneider Mills, Inc., 159 NLRB 982. Cf. Green Bay Aviation, Inc., 165 NLRB No. 137.2 In any event, Respondent's attack on the Goodyear Tire and Rubber Company rule has been an oft repeated one and the rule has been affirmed in prior Board and court decisions Automotive Textile Products Co., Inc., 171 NLRB No. 157, National Can Corporation v. N.L R.B., 374 F.2d 796 (C.A. 7), N.L.R.B. v. Tennessee Packers, Inc., Frosty Mom Division, 379 F.2d 172 (C.A. 6). There is nothing in the material proffered in Respondent's offer of proof which would warrant a variation here from the uniformly applied cutoff date for objections to election. Rockwell Manufacturing Company, Kearney Division v. N L.R.B , 330 F.2d 795 (C.A. 7); cf. NL.R.B. v. Lawrence Typographical Union No. 570 (Kansas Color Press), 376 F.2d 643 (C.A. 10). It appears, therefore, that there are no factual issues relitigable before me in this proceeding. Accordingly, the General Counsel's motion for summary judgment is granted. On the basis of the record before me I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, an Illinois corporation with its principal office and place of business in Chicago, Illinois, where it is engaged in the business of making and selling portrait photographs. During the calendar year 1967 Respondent realized gross 2 Repondent looks for support in the Board 's action in Green Bay Aviation There the Regional Director had set aside the election on the basis of conduct which had occurred prior to the critical election period However, unlike the stipulation for consent election in the instant proceeding , the election in Green Bay Aviation was conducted pursuant to a consent-election agreement which gives final and binding effect to the Regional Director's action. Moreover, I do not deem the Board 's language in that case as indicating approval of the Regional Director 's action. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipts in excess of $500,000 from the operations described above and during the same period it purchased goods and services valued in excess of $50,000 within the State of Illinois, which goods and services originated outside the State of Illinois. During the same representative period the Re- spondent sold and furnished goods and services valued in excess of $200,000 at points directly outside the State of Illinois. Respondent is now, 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 meets the Board's standards for asserting jurisdiction. H. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES All proot salesmen employed by the Respondent at its 3845 West North Avenue, Chicago, Illinois, location, but excluding all other employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. As detailed heretofore the Union was certified on February 26, 1968, as the exclusive collective-bargaining representative in the appropriate unit, and is now by virtue of Section 9(a) of the Act the exclusive representative of all employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Commencing on or about February 28, 1968, and at all times thereafter the Union requested and continues to request Respondent to meet and bargain collectively with it as the representative of the employees in the appropriate unit. Commencing on or about February 28, 1968, and at all times thereafter to date, Respondent has refused to meet with the Union and to bargain with it as the collective-bargaining representative of the appropriate unit. By such action the Respondent has refused to bargain collectively in violation of Section 8(a)(5) of the Act, thereby interfering with, restrain- ing, and coercing employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following. ORDER A. For the purpose of determining the effective period of the certification, the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit.3 B. Sheridan-Peter Pan Studios, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall. 1. Cease and desist from. (a) Refusing to bargain collectively with Retail Store Employees Union, Local 300, Retail Clerks International Association, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All proof salesmen employed by the Respondent at its 3845 West North Avenue, Chicago, Illinois, location, but excluding all other employees, professional employees, guards and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in said appropriate unit as the exclusive collective-bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively with Retail Store Employees Union, Local 300, Retail Clerks International Association, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and embody in a signed agreement any under- standing reached. (b) Post at its Chicago, Illinois, location copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by an authorized representative, shall be posted by the 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 the Respondent to insure that said 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 have been taken to comply herewith.5 3 The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their collective bargaining agent for the period provided by law. Aerovox Corporation of Myrtle Beach, South Carolina, 171 NLRB No 105, Bill's Insti- tutional Commissary Corporation, 171 NLRB No. 188. 4 In 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 " 5 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 13, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations 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 Store Employees Union, Local 300, Retail Clerks Inter- national Association, AFL-CIO, as the exclusive bargaining representative of all the following employees: SHERIDAN-PETER PAN STUDIOS, INC All proof salesmen employed at our 3845 West North Avenue, Chicago, Illinois, location, but excluding all other employees, professional employees, guards and supervisors as defined in the Act WE WILL NOT interfere with the efforts of said Union to negotiate and represent the employees in the appropriate unit as the exclusive bargaining representative of the employees. WE WILL bargain collectively with the Union as the exclusive representative of the employees and when an understanding is reached WE WILL sign a contract with the Union SHERDIAN-PETER PAN STUDIOS, INC. (EMPLOYER) Dated By 55 (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 direct- ly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 353-7572