S. H. Kress & Co.

S. H. KRESS & CO. 473 S. H. Kress & Co. and Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO. Case 15-CA-4140 September 30, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on June 2, 1971, by Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO, herein called the Union, and duly served on June 3, 1971, upon S. H. Kress & Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on June 10, 1971, 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 and complaint were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 15, 1971, following a Board election in Case 15-RC-4430 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; i and that, commencing on or about March 4, 1971, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On June 21, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 8, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 14, 1971, 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 should not be granted. Respondent thereafter filed an opposition to General Counsel's Motion for Summary Judgment as its response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its I Official notice is taken of the record in the representation proceeding, Case 15-RC-4430, as the term "record" is defined in Secs 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 Co, 167 NLRB 151; Intertype Co, v. Penello, 269 F . Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 powers in connection with 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 response to the Notice To Show Cause, as in its answer to the complaint, Respondent contends that because it was not afforded an opportunity for hearing on its objections to the election underlying the Certification in Case 15-RC-4430, and was therefore deprived of due process, the certification was unlaw- fully issued and the Union is not the exclusive representative of the Respondent's employees in the appropriate unit. The record in Case 15-RC-4430 discloses that the Regional Director, on September 11, 1970, issued a Decision and Direction of Election in which he directed an election for a unit of certain employees of Respondent's food department, rather than in the storewide unit urged by the Respondent.2 On Septem- ber 16, 1970, Respondent filed a Request for Review of the Regional Director's Decision and Direction of Election, contending again that the food department unit found to be appropriate was, in fact, inappropri- ate since the only appropriate unit was a storewide unit. The Board, in a telegraphic order of October 6, 1970, denied the request for review as raising no substantial issues warranting Board consideration. In the election conducted on October 9, 1970, pursuant to the Regional Director's Decision and Direction of Election, as modified, among Respon- dent's employees in the unit found to be appropriate, there were 31 valid votes cast, of which 20 were for, and 11 against, the Union. On October 15, 1970, Respondent filed timely objections to the conduct of the election and to conduct affecting the results of the election. In substance the first objection alleged misrepresentation by the Union with respect to: (1) The amount of union dues; (2) the union membership of Respondent's manager and of the employees of other stores of the Respondent; (3) the requirement of strike authorization votes; (4) the law governing the replacement of strikers; (5) rules concerning supervi- sory authority; (6) employee placements in the various departments of the store; and (7) benefits received by employees of a local hotel who were represented by the Union. A second objection alleged that the Union's interjection of a racial issue into the election campaign required that the election be set F.2d 91 (C A. 7, 1968); Sec. 9(d) of the NLRA 2 Thereafter, at Respondent's request, the Regional Director issued an order modifying his Decision and Direction to include in the unit two former part-time employees who had been transferred to full-time jobs in the food department after the hearing but prior to the election eligibility date 193 NLRB No. 78 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aside and a third objection alleged that union threats of discharge if the Union lost the election mandated the same result. No evidence was offered in support of three other objections. After an investigation, the Regional Director issued a detailed Supplemental Decision and Certification of Representative, on January 15, 1971, in which he found Respondent's objections were without merit, overruled them in their entirety, and certified the Union. Thereafter, on February 9, 1971, Respondent filed a Request for Review of the Regional Director's Supplemental Decision in which it reiterated its objections as a basis for vacating the Union's certification and argued that the objections raised substantial factual issues warranting an evidentiary hearing. After due consideration, the Board, on March 1, 1971, denied the Request for Review on the ground that it raised no substantial issues warranting review. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation engaged in the resale of goods and merchandise in various locations throughout the United States. During the past 12 months the Respondent, at the facility involved herein, had gross sales in excess of $500,000. During the same period Respondent pur- chased goods in excess of $50,000 which were shipped directly to it from points located outside the State of Louisiana. We find, on the basis of the foregoing, 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Hotel , Motel and Restaurant Employees Union, Local 166, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time food service employees (Department 90), including the porter- dishwasher at Respondent's store located at 923 Canal Street, New Orleans, Louisiana; excluding all other employees, guards and supervisors as defined in the Act. 2. The certification On October 9, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 15 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on January 15, 1971, 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 Refusal Commencing on or about March 4, 1971, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about March 4, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since 3 See Pittsburgh Plate Glass Co v N L R B , 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102. 69(c) S. H. KRESS & CO. 475 March 4, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, 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 Respondent set forth in section III, above, occurring in oonnection 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. V. THE REMEDY Having found that Respondent has engaged in and is engaging 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. 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. S.H. Kress & Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel and Restaurant Employees Un- ion, Local 166, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time food service employees (Department 90), including the porter- dishwasher at Respondent's store located at 923 Canal Street, New Orleans, Louisiana; excluding all other employees, 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 January 15, 1971, the above-named labor 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 March 4, 1971, 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 thereby has 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 Respondent, S. H. Kress & Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time food service employees (Department 90), including the porter- dishwasher at Respondent's store located at 923 Canal Street, New Orleans, Louisiana, excluding all other 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 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its store at 923 Canal Street, New Orleans, Louisiana, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 15, 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 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 " 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 rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All full-time and regular part-time food service employees (Department 90), includ- ing the porter-dishwasher at Respondent's store located at 923 Canal Street, New Orleans, Louisiana; excluding all other em- ployees, guards and supervisors as defined in the Act. S. H. KRESS & Co. (Employer) 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 Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. 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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.