Lerner Stores Corp.

LERNER STORES CORPORATION 137 Lerner Stores Corporation and Retail Clerks Union, Local 870, Retail Clerks International Association, AFL-CIO. Case 20-CA-8021 July 31, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on January 17, 1973, by Retail Clerks Union, Local 870, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Lerner Stores Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the acting Re- gional Director for Region 20, issued a complaint, notice of prehearing conference, and notice of hearing on February 16, 1973, 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, notice of prehearing conference, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on November 20, 1972, following a Board election in Case 20-RC- 10859 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about January 2, 1973, 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, al- though the Union has requested and is requesting it to do so. On February 26, 1973, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. On March 14, 1973, counsel for the General Coun- sel filed directly with the Board a motion for summary judgment, with appendixes attached, submitting, in effect, that the Respondent in its answer raises no issues which were not previously presented to and decided by the Board in the representation proceed- ing, and raises no issues of fact or law requiring a hearing. Accordingly, counsel for the General Coun- Official notice is taken of the record in the representation proceeding, Case 20-RC-10859, as the term "record" is defined in Sec. 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 172d 683 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969); 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 sel prays that the Board find that the Respondent has violated Section 8(a)(5) and (1) of the Act and issue a decision and order in conformity with the allega- tions of the complaint. Subsequently, on March 26, 1973, the Board issued an order transferring the pro- ceeding to the Board and a notice to show cause why the General Counsel's motion for summary judgment should not be granted. On April 9, 1973, the Union submitted a brief in support of motion for summary judgment and Respondent thereafter filed a response to notice to show cause, with appendixes attached. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 response to notice to show cause, with appen- dixes, as in its answer to the complaint, the Respon- dent, in substance, attacks the appropriateness and scope 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. By this assertion, and more specifically by its denials, in whole or in part, of the allegations in the complaint 2 and the arguments propounded in its re- sponse to notice to show cause, the Respondent is attempting to relitigate the same issues which it raised and litigated in the prior representation proceeding. The record of the prior representation proceeding, which is before us, shows that the Respondent filed a request for review of the Regional Director's Decision and Direction of Election in Case 20-RC-10859, which the Board on November 7, 1972, by telegraphic order, denied as it raised no substantial issues war- ranting review, and that on or about January 2, 1973, the Respondent filed with the Regional Director a request for reconsideration of the Regional Director's Decision and Direction of Election, which was denied on January 8, 1973. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate 2 By its answer, the Respondent denies par 9 of the complaint that the Union has requested the Respondent to bargain Attached to the General Counsel's Motion for Summary Judgment are letters dated December 6, 1972, and January 2, 1973, respectively, the former a request made by the Union to the Respondent for bargaining, and the latter Respondent's refusal. In its response to notice to show cause, the Respondent neither alludes to nor seeks to controvert the contents or the receipt of the letters attached to the General Counsel's motion Accordingly, we shall deem the allegations in par. 9 of the complaint to be admitted. The May Department Stores Company, 186 NLRB 86, and Carl Simpson Buick, Inc, 161 NLRB 1389 205 NLRB No. 30 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues which were or could have been litigated in a prior representation proceeding.' 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.4 We shall, accordingly, grant the motion for summary judgment. On the basis of the entire record, the Board makes the following: 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 pur- poses within the meaning of Section 9(b) of the Act: All employees of the Employer at its Hayward, California location, excluding store managers, assistant store managers, department heads, management trainees, guards and supervisors as defined in the Act. 2. The certification FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT At all times material herein, Respondent, a Mary- land corporation, has been engaged in the retail sale of clothing and dry goods, and maintains a place of business at Hayward, California. During the past year, Respondent, has received from the sale of goods gross revenues in excess of $500,000. During the past year, Respondent, in the course and conduct of its business operations, has received goods and services valued at or in excess of $50,000 from outside the State of California. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Retail Clerks Union , Local 870 Retail Clerks Inter- national Association , AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. ' 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) 4 As part of its response to notice to show cause , the Respondent has attached thereto appendixes relating to its motion to transfer investigation to General Counsel and to consolidate proceedings filed with the General Counsel on February 22, 1973, which the General Counsel denied as lacking in merit, since the Acting Regional Director had made a determination with respect to all allegations of the charges Respondent contends , in substance, that the General Counsel's denial of Respondent's motion is erroneous and prejudicial to the Respondent in that it is faced with multiple litigation involving common issues covered by the same charge We find no merit in this contention Review of the record shows that all unfair labor practices which were disclosed during the investigation are embraced by the complaint and the Regional office is not proceeding to investigate any further matters under the charge nor does the Regional office intend to issue a complaint on any other unfair labor practices in this case On November 10, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 20, 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 November 20, 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 December 6, 1972, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about January 2, 1973, 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 collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since January 2, 1973, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es 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 connection with its operations LERNER STORES CORPORATION described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce 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 mean- ing 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, emobdy such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Lerner Stores Corporation, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 870, Retail Clerks International Association, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All employees of the Employer at its Hayward, California location, excluding store managers, assis- tant store managers, department heads, management trainees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 20, 1972, the above-named la- bor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 2, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- 139 gaining representative of all the employees of Respon- dent 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 mean- ing 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 Rela- tions Board hereby orders that Respondent, Lerner Stores Corporation, Hayward, California, 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 condi- tions of employment with Retail Clerks Union, Local 870, Retail Clerks International Association, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees of the Employer at its Hayward, California location, excluding store managers, assistant store managers, department heads, management trainees, 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 Hayward, California location copies of the attached notice marked "Appendix." S Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by 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 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 " 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's representative, shall be posted by Re- spondent 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 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 understanding in a signed agreement. The bargaining unit is: All employees of the Employer at its Hay- ward, California location, excluding store managers, assistant store managers, depart- ment heads, management trainees, guards and supervisors as defined in the Act. Dated By WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Retail Clerks Union, Local 870, Retail Clerks Interna- tional Association, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. LERNER STORE CORPORA- TION (Employer) (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, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197.