Fotomat Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fotomat Corporation and Retail Store Employees Union, Local 880, Retail Clerks International Association, AFL-CIO. Case 8-CA-10765 October 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBER JENKINS AND MURPHY Upon a charge filed on January 26, 1977, by Retail Store Employees Union, Local 880, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Fotomat Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint and notice of hearing on March 8, 1977, 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 were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on December 20, 1976, following a Board election in Case 8-RC-9950, 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 January 24, 1977, and at all times thereafter, Respondent has refused, and con- tinues 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 1, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, submitting defenses and requesting that the com- plaint be dismissed in its entirety. On May 4, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 16, 1977, 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 a response to Notice To Show Cause, and also a cross-motion for Summary Judgment. i Official notice is taken of the record in the representation proceeding, Case 8-RC-9950, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 233 NLRB No. 3 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 Motions for Summary Judgment In its response to the Notice To Show Cause, as well as its affirmative defenses set forth in its answer to the complaint, Respondent in substance attacks the Union's certification on the ground that (1) Respondent was denied a fair hearing in the representation proceeding; (2) the unit certified is inappropriate; (3) the election was conducted in an improper manner; and (4) the Union lost its majority status before it was certified. Review of the record herein reveals that in Case 8- RC-9950 a Stipulation for Certification Upon Consent Election was approved by the Regional Director and the election was conducted on July 17, 1975. The tally of ballots showed that of approxi- mately 71 eligible voters 61 cast ballots, of which 40 were cast for the Union, and 21 were cast against the Union. There were no challenged ballots. On July 18, 1975, Respondent filed timely objections to conduct affecting the results of the election, and to the conduct of the election. The Acting Regional Director issued his Report on Objections on Septem- ber 29, 1975, recommending the objections be overruled and the Union be certified. Thereafter, Respondent filed timely exceptions to the Acting Regional Director's Report on Objections. On April 14, 1976, the Board ordered that a hearing be held with respect to certain of Respondent's objections. On August 12, 1976, the Hearing Officer issued his report recommending that the objections be over- ruled in their entirety, and on December 20, 1976, the Board issued a Decision and Certification of Representation (not reported in bound volumes of Board Decisions), certifying the Union as the collective-bargaining representative of the employees in the appropriate unit. Following a request by the Union on or about January 6, 1977, that Respondent commence bar- gaining and furnish it with a list of all employees in the bargaining unit with normal work schedules, including reporting time, quitting time, lunch hours, and breaktimes, Respondent on January 24, 1977, refused to bargain and to furnish the information requested. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1%9); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Folleit Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 56 FOTOMAT CORPORATION 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 Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the General Counsel's Motion for Summary Judgment and deny the Respondent's cross-motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation engaged in the sale and processing of film. Annually, in the course and conduct of its business, Respondent receives gross revenues in excess of $500,000 and receives goods valued in excess of $50,000 at its Ohio facilities directly from points located outside the State of Ohio. 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 Retail Store Employees Union, Local 880, Retail Clerks International Association, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All selling and nonselling full-time and part- time employees, including maintenance employ- ees employed in the Employer's Cleveland Area District, which consists of the facilities listed below, but excluding all office clerical employees, route drivers, and professional employees, guards, and supervisors as defined in the Act. 4200 Fulton Rd., Cleveland; 2400 Brookpark Rd., Cleveland; 7522 Broadview Rd., Parma; 6339 York Rd., Parma Hts.; 6879 W. 130th St., Parma Hts.; 14596 Snow Rd., Brookpark; 14131 Puritas, Cleveland; 13531 Lorain Ave., Cleveland; 1420 W. 117th St., Lakewood; 3376 Westgate Mall, Fairview Park; 22809 Lorain Ave., Fairview Park; 25980 Lorain Ave., N. Olmsted; 27180 Detroit Ave., Westlake; 1081 Meister Rd., Lorain; 3929 Pearl Rd., Lorain; 18314 Euclid Ave., Cleveland; 1501 East 276th St., Euclid; 200 East 228th St., Euclid; 7768 Lakeshore, Mentor; 34524 Lakeshore, Eastlake; 1510 Mentor Ave., Painesville; 7765 Mentor Ave., Mentor; 8504 Mentor Ave., Mentor; 4893 Robinhood Rd., Willoughby; 10333 Northfield Rd., Northfield; and 17838 Lorain Rd., Cleveland. 2. The certification On July 17, 1975, 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 8, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on December 20, 1976, and the Union 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(f) and 102.69(c). 57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 January 6, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about January 24, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all the employees in said unit. Accordingly, we find that Respondent has since January 24, 1977, 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 Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, 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 com- mences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), 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. Fotomat Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 880, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All selling and nonselling full-time and part- time employees, including maintenance employees employed in the Employer's Cleveland Area District, which consists of the facilities listed below, but excluding all office clerical employees, route drivers, and professional employees, guards, and supervisors as defined in the Act: 4200 Fulton Rd., Cleveland; 2400 Brookpark Rd., Cleveland; 7522 Broadview Rd., Parma; 6339 York Rd., Parma Hts.; 6879 W. 130th St., Parma Hts.; 14596 Snow Rd., Brookpark; 14131 Puritas, Cleveland; 13531 Lorain Ave., Cleve- land; 1420 W. 117th St., Lakewood; 3376 Westgate Mall, Fairview Park; 22809 Lorain Ave., Fairview Park; 25980 Lorain Ave., N. Olmsted; 27180 Detroit Ave., Westlake; 1081 Meister Rd., Lorain; 3929 Pearl Rd., Lorain; 18314 Euclid Ave., Cleveland; 1501 East 276th St., Euclid; 200 East 228th St., Euclid; 7768 Lakeshore, Mentor; 34524 Lakeshore, Eastlake; 1510 Mentor Ave., Painesville; 7765 Mentor Ave., Mentor; 8504 Mentor Ave., Mentor; 4893 Robinhood Rd., Willoughby; 10333 Northfield Rd., Northfield; and 17838 Lorain Rd., Cleveland; constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 20, 1976, the above-named labor organization has been and is now 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 January 24, 1977, and at all times thereafter, to meet and bargain collective- ly with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, and by refusing the Union's request for information regard- ing normal work schedules, reporting time, quitting time, lunch hours, and breaktimes, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 58 FOTOMAT CORPORATION 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)(l) 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 the Respondent, Fotomat Corporation, Cleveland Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing the Union's request for information regarding normal work schedules, reporting time, quitting time, hours, and breaktimes, and refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employ- ment with Retail Store Employees Union, Local 880, Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All selling and nonselling full-time and part- time employees, including maintenance employ- ees employed in the Employer's Cleveland Area District, which consists of the facilities listed below, but excluding all office clerical employees, route drivers, and professional employees, guards, and supervisors as defined in the Act. 4200 Fulton Rd., Cleveland; 2400 Brookpark Rd., Cleveland; 7522 Broadview Rd., Parma; 6339 York Rd., Parma Hts.; 6879 W. 130th St., Parma Hts.; 14596 Snow Rd., Brookpark; 14131 Puritas, Cleveland; 13531 Lorain Ave., Cleveland; 1420 W. 117th St., Lakewood; 3376 Westgate Mall, Fairview Park; 22809 Lorain Ave., Fairview Park; 25980 Lorain Ave., N. Olmsted; 27180 Detroit Ave., Westlake; 1081 Meister Rd., Lorain; 3929 Pearl Rd., Lorain; 18314 Euclid Ave., Cleveland; 1501 East 276th St., Euclid; 200 East 228th St., Euclid; 7768 Lakeshore, Mentor; 34524 Lakeshore, Eastlake; 1510 Mentor Ave., Painesville; 7765 Mentor Ave., Mentor; 8504 Mentor Ave., Mentor; 4893 Robinhood Rd., Willoughby; 10333 Northfield Rd., Northfield; and 17838 Lorain Rd., Cleveland. (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, and furnish the requested information with respect to rates of pay, wages, hours, normal work schedules, reporting time, quitting time, lunch hours, and breaktimes and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Cleveland Area District facilities, Cleveland, Ohio, copies of the attached notice marked "Appendix."s3 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's represen- tative, 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 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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." 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 Retail Store Employees Union, Local 880, Retail Clerks International Association, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. 59 DECISIONS OF 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 and furnish information to 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 understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All selling and nonselling full-time and part-time employees, including maintenance employees employed in the Employer's Cleveland Area District, which consists of the facilities listed below, but excluding all office clerical employees, route drivers, and professional employees, guards, and supervi- sors as defined in the Act. 4200 Fulton Rd., Cleveland; 2400 Brookpark Rd., Cleveland; 7522 Broadview Rd., Parma; 6339 York Rd., Parma Hts.; 6879 W. 130th St., Parma Hts.; 14596 Snow Rd., Brookpark; 14131 Puritas, Cleveland; 13531 Lorain Ave., Cleveland; 1420 W. 117th St., Lakewood; 3376 Westgate Mall, Fairview Park; 22809 Lorain Ave., Fairview Park; 25980 Lorain Ave., N. Olmsted; 27180 Detroit Ave., Westlake; 1081 Meister Rd., Lorain; 3929 Pearl Rd., Lorain; 18314 Euclid Ave., Cleveland; 1501 East 276th St., Euclid; 200 East 228th St., Euclid; 7768 Lakeshore, Mentor; 34524 Lakeshore, Eastlake; 1510 Mentor Ave., Painesville; 7765 Mentor Ave., Mentor; 8504 Mentor Ave., Mentor; 4893 Robinhood Rd., Willoughby; 10333 Northfield Rd., Northfield; and 17838 Lorain Rd., Cleveland, FOTOMAT CORPORATION 60