J. C. Penney Co., Inc.

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. C. Penney Company, Inc., Truck Service Center No. 4662 and District Lodge No. 52 of the International Association of Machinists and Aero- space Workers, AFL-CIO. Case 9-CA-7105 November 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on June 14, 1972, by District Lodge No. 52 of the International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on J. C. Penney Company, Inc., Truck Service Center No. 4662, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on June 28, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 an Adminis- trative Law Judge 1 were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 2, 1972, following a Board election in Case 9-RC-9408 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commenc- ing on or about June 5, 1972, 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 July 7, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 4, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 16, 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- dent thereafter failed to file a response to Notice To Show Cause. i The title of "Trial Examiner" was changed to "Adnnmstrative Law Judge" effective August 19, 1972. 2 Official notice is taken of the record in the representation proceeding, Case 9-RC-9408, 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), 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 to the complaint, Respondent denies the appropriateness of the unit, and, consequently, the validity of the certification of the Union as the exclusive bargaining representative of the employees in the appropriate unit. The record in Case 9-RC-9408 reflects that, after a hearing, the Regional Director on March 23, 1972, issued his Decision and Direction of Election finding, in agreement with the Union and contrary to the Respondent, an appropriate unit of all employ- ees, excluding all office clerical employees and commercial sales representatives. Respondent there- upon filed with the Board a timely request for review in which it reiterated its arguments that the work of the office clerical employees and the commercial sales representatives was directly and closely integrated with the function of Respondent's truck service center, and warranted their inclusion in the unit. On April 11, 1972, the 'Board denied the Respondent's request as it raised no substantial issues warranting review. It thus appears that by its answer to the complaint Respondent is attempting to relitigate the unit issue raised and determined in the previous representation proceeding. 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 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 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 NLRA 3 See Pittsburgh Plate Glass Co. v. N.LR B, 313 U.S. 146, 162 ( 1941), Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c) 200 NLRB No. 25 J. C. PENNEY COMPANY, INC. 227 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 Respondent is a Delaware corporation operating a truck service center at Columbus, Ohio, where it is engaged in the sale and installation of truck parts and in performing maintenance services on customer trucks. During the last 12 months, a representative period, Respondent purchased goods valued in excess of $50,000 from suppliers located outside the State of Ohio, causing said goods to be shipped directly to its Columbus, Ohio, facility. During the same representative period, Respon- dent's gross dollar volume of sales or performance of services exceeded $500,000. 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 representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on May 2, 1972, 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 May 22, 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 June 5, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 5, 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. District Lodge No. 52 of the International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the mean- ing 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 employed by Respondent at its Truck Service Center No. 4662, 4855 Groveport Pike, Columbus, Ohio, excluding all office clerical employees, commercial sales representatives, and all guards, professional employees, and supervi- sors as defined in the Act. 2. The certification On April 21, 1972, 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 9, designated the Union as their IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of 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 Respondentcommenc- 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. J. C. Penney Company, Inc., Truck Service Center No. 4662, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge No. 52 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees employed by Respondent at its Truck Service Center No. 4662, 4855 Groveport Pike, Columbus, Ohio, excluding all office clerical employ- ees, commercial sales representatives, and all guards, professional employees, 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 May 2, 1972, 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 June 5, 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 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, 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 Relations Board hereby orders that Respondent, J. C. Penney Company, Inc., Truck Service Center No. 4662, 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 District Lodge No. 52 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by the Respondent at its Truck Service Center No. 4662, 4855 Grove- port Pike, Columbus, Ohio, excluding all office clerical employees, commercial sales representa- tives, and all guards, professional employees, 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 Columbus, Ohio, Truck Service Center copies of the attached notice marked "Appen- dix." 4 Copies of said notice, on forms provided by the Regional Director for Region 9, 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 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, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the nonce 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." Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor J. C. PENNEY COMPANY, INC. 229 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government All employees employed by Respondent at its Truck Service Center No. 4662, 4855 Groveport Pike, Columbus, Ohio, excluding all office clerical employees, commercial sales representatives, and all guards, profes- sional employees, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with District Lodge No. 52 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive 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 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: J. C. PENNEY COMPANY, INC., TRUCK SERVICE CENTER No. 4662 (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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.