Lee Optical of Missouri, Inc.

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lee Optical of Missouri, Inc. and Production Workers of Chicago and Vicinity, an affiliate of Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent). ,Case 13-CA-11278 July 19, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on February 28, 1972, by Production Workers of Chicago and Vicinity, herein called the Charging Party, and duly served on Lee Optical of Missouri, Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint on March 24, 1972, 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 notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on September 23, 1971, following a Board election in Case 13-RC-12464, Chicago Truck Drivers, Helpers and Warehouse Union (Independent), herein called the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about October 1, 1971, and at all times thereafter, Respondent has refused, and continues 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 April 10, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 5, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, averring that the pleadings reveal no disputes on any relevant or material facts which would necessitate a hearing. Subsequently, on May 10, 1972, 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. Respon- ' Official notice is taken of the record in the representation proceeding, Case 13-RC-12464, 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), dent thereafter filed a response to Notice To Show Cause and a Motion To Remand. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 and in its response, Respondent contends, in effect, that the General Counsel's Motion for Summary Judgment be denied for two affirmative reasons: (1) the Regional Director's erroneous action in overruling its objections to the conduct of the election in the underlying representa- tion case invalidated the certification, and (2) laches and equitable estoppel resulting from the Union's unconscionable delay between issuance of certifica- tion and its request to meet and bargain. The General Counsel submits that Respondent's first affirmative defense does not raise any issue properly triable in the instant unfair labor practice proceeding and its second defense is legally inadequate and therefore the Board should grant the Motion for Summary Judgment. We agree. The record in Case 13-RC-12464 establishes that, pursuant to the Regional Director's Decision and Direction of Election of July 2, 1971, an election by mail ballot was conducted between July 26 and August 9, 1971, among the employees in the unit found appropriate by the Regional Director. The tally of ballots showed that of 35 eligible voters, 19 ballots were cast, of which 13 were for and 2 against the Union and 4 were challenged. On August 16, 1971, Respondent timely filed Objections to Conduct Affecting Results of Election, and a Motion To Transfer Proceedings to the Board which was denied. The objections alleged in sub- stance that the conduct of the mail ballot election was an abuse of the Board's policies and procedures and, because of the unreliability of the mails and the lack of proper safeguards to insure ballot delivery to all eligible voters, 16 eligible employees did not vote and their ballots could have affected the results of the election. After the Regional Director investigated the objections, on September 23, 1971, he issued a Supplemental Decision on Objections and Certifica- tion of Representative in which he (1) overruled Respondent's objections because of the absence of any evidence as to some and the absence of legally sufficient evidence as to the others and (2) certified 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 F 2d 91 (C A 7, 1968), Sec 9(d) of the N LRA 198 NLRB No. 53 LEE OPTICAL OF MISSOURI, INC the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. On October 8, 1971, Respondent filed with the Board a Request for Review of the Regional Director's Supplemental Decision on Objections and Certification of Representative, reiterating its objec- tions. The Board, on November 3, 1971, denied the request finding that it raised no substantial issues warranting review. By its first affirmative defense attacking the Regional Director's action in the representation case, the Respondent is seeking to relitigate issues which were fully raised and previously determined. 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.2 All issues raised by the Respondent in this proceeding 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.3 For its second and final defense, Respondent argues that the. Motion for Summary Judgment should be denied and the complaint dismissed on the basis of laches and equitable estoppel. It asserts that the Union's alleged unconscionable delay from September 23, 1971, when it was certified to February 17, 1972, when it requested bargaining, resulted in detriment and prejudice to the Respon- dent and in the possibility that the Respondent might be forced to bargain with a minority representative which could be imposed on the employees. As the Union's request and its subsequent unfair labor practice charges all occurred during the 1-year certification period, which carries an almost irrebutt- able presumption of majority representation, we find no merit in the Respondent's defense .4 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2 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(1) and 102 69(c) 3 In its answer to the complaint , Respondent denies that it is in commerce and asserts that it is without knowledge as to whether the Union FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 305 Respondent, a Missouri corporation, maintaining its principal place of business at 1403 Slocum Street, Dallas, Texas, and operating a chain of 26 retail stores in the Chicago metropolitan area, has been at all times material herein engaged in the retail distribution of optical products. During the past calendar year, a representative period, Respondent did a gross volume of business in excess of $1 million. During the same period, Respondent directly purchased and received at its Chicago metropolitan area facilities materials valued in excess of $50,000 from suppliers located in States other than Illinois. 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 Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) is a labor organiza- tion 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All employees and receptionists employed by the Employer at its Chicago Metropolitan stores listed in Appendix "A," attached hereto, but excluding store managers and professional em- ployees, guards and supervisors as defined in the Act. 2. The certification During the period July 26 through August 9, 1971, a majority of the employees of Respondent in said unit, in a secret mail ballot election conducted under the supervision of the Regional Director for Region 13, designated the Union as their representative for the purpose of collective bargaining with the Respon- dent. The Union was certified as the collective- is, or has been, a labor organization within the meaning of the Act However, these issues have been raised and determined in the underlying representation case and are not litigable herein 4 Skelly Oil Co., 192 NLRB No 106 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining representative of the employees in said unit on September 23, 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 February 17, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about February 22, 1972, 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 February 22, 1972, 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, Respon- dent 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 opera- tions 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 com- merce. 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 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 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. Lee Optical of Missouri, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chicago Truck Drivers, Helpers and Ware- house Workers Union (Independent) is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees and receptionists employed by the Employer at its Chicago Metropolitan stores listed in Appendix "A," attached hereto, but exclud- ing store managers and professional 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 September 23, 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 February 22, 1972, 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 approriate 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining and coercing, employ- ees 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, Lee Optical of Missouri, Inc., its officers, agents, succes- sors, and assigns, shall: LEE OPTICAL OF MISSOURI, INC. 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) as the exclusive bargaining represent- ative of its employees in the following appropriate unit: All employees and receptionists employed by the Employer at its Chicago Metropolitan stores listed in Appendix "A," attached hereto, but excluding store managers and professional em- ployees, 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 its Chicago, Illinois, stores copies of the attached notice marked "Appendix B."5 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 307 APPENDIX A 3301 North Lincoln Avenue Chicago, Illinois 4749 North Lincoln Avenue Chicago, Illinois 8639 South Cottage Grove Chicago, Illinois 6001 West North Avenue Oak Park, Illinois 1324 Milwaukee Avenue Chicago, Illinois 11127 South Michigan Avenue Chicago, Illinois 6351 South Halsted Street Chicago, Illinois 4218 South Archer Avenue Chicago, Illinois 13046 South Western Avenue Blue Island, Illinois 1115 Lake Street Oak Park, Illinois, 9124 South Commercial Avenue Chicago, Illinois 3 East Washington Street Chicago, Illinois 4752 North Broadway Chicago, Illinois 9515 South Western Avenue Chicago, Illinois 2739 Milwaukee Avenue Chicago, Illinois 6328 West Cermak Berwyn, Illinois 3942 West Madison Street Chicago, Illinois 1825 West Glen Flora Waukegan, Illinois 31 North Broadway Aurora, Illinois 15 Douglas Street Elgin, Illinois 2417 West Devon Avenue Chicago, Illinois 3505 South Halsted Street Chicago, Illinois 5 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 8822 South Cicero of the National Labor Relations Board" shall read "Posted Pursuant to a Avenue 1604 Otto Street Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Oak Lawn, Illinois Chicago Heights, Illinois 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4787 North Milwaukee 1074 Mount Prospect Avenue Plaza Chicago, Illinois Mount Prospect, Illinois APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agenecy 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 Chica- go Truck Drivers, Helpers and Warehouse Work- ers Union (Independent) as the exclusive repre- sentative 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 representa- tive 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 understanding in a signed agree- ment. The bargaining unit is: All employees and receptionists employed by the Employer at its Chicago Metropolitan stores listed in Appendix "A," attached hereto, but excluding store managers and professional employees, guards and supervi- sors as defined in the Act. LEE OPTICAL OF MISSOURI, INC. (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 compli- ance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room 881, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.