Stanley's Super D

STANLEY'S SUPER D Stanley Stores, Inc., d/b/a Stanley's Super D and Retail Clerks International Association, Local 1691, AFL-CIO. Case 15-CA-537 November 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on July 20, 1977, by Retail Clerks International Association, Local 1691, AFL- CIO, herein called the Union, and duly served on Stanley Stores, Inc., d/b/a Stanley's Super D, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on July 26, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (I) 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 Administrative 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 June 20, 1977, following a Board election in Case 15-RC-6038 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 July 11, 1977, 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 August 3, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 11, 1977, counsel for the General Counsel filed directly with the Board a "Motion to Transfer and Continue Case Before the Board and Motion for Summary Judgment." Respondent filed an opposition with attachments entitled "Response in Opposition to General Counsel's Motion to Transfer and Continue Case Before the Board and Motion for Summary Judgment." Subsequently, on August 25, 1977, the Board issued an order transfer- ring 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- I Official notice is taken of the record in the representation proceeding, Case 15-RC-6038. 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 Electrosysrems. Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4, 1968): Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26 (C.A. 5. 1969): Inrertrpe Co. v. Penello. 269 F.Supp 573 (DC.Va., 1967); 233 NLRB No. 41 dent thereafter filed a response to Notice To Show Cause incorporating by reference its opposition to the Motion for Summary Judgment. 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, opposition to the Motion for Summary Judgment, and response to the Notice To Show Cause, Respondent contests the validity of the Union's certification on the basis of its objections to the election in the underlying represen- tation case, and requests that a new election be held or, alternatively, that a hearing be held on the substantial and material issues raised by its objec- tions. The General Counsel contends that Respon- dent is attempting to relitigate matters which were or could have been considered and disposed of in the underlying representation case and this it may not do. We agree with the General Counsel. A review of the record herein, including that in Case 15-RC-6038, establishes that, pursuant to a Stipulation for Certification Upon Consent Election, an election 2 was held on February 8, 1977, in which the Union prevailed by a vote of 26 to I 11. Thereafter, Respondent filed timely objections to the election alleging, in substance, union conduct as follows: (1) improper electioneering, (2) unlawful election speeches while the balloting was in progress, and (3) other acts which warranted setting aside the election. After investigation, the Regional Director issued on April 5, 1977, a Report on Objections in which he found the objections to be without merit and recommended that they be overruled, as raising no substantial or material issues affecting the conduct or results of the election. Respondent filed detailed exceptions and a supporting brief essentially reiterat- ing its objections and requesting that a new election be directed or, alternatively, that a hearing be held on its objections. After considering the record in light of Respondent's exceptions and brief, the Board issued a Decision and Certifications of Representa- tive in which it adopted the Regional Director's findings and recommendations, necessarily finding that Respondent had raised no substantial or Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 This election was held in Case 15-RC6038 involving a unit consisting of all full-time and regular part-time employees excluding meat department employees. On the same date, an election was also held in Case 15 RC-6044 involving a unit consisting only of all meat department employees. 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material issues warranting a hearing, and certified the Union. In its submissions Respondent again contends that it is entitled to an evidentiary hearing on its objections. We find no merit in this contention. As indicated above, the Board's Decision and Certifica- tions of Representative necessarily found that Re- spondent's objections raised no issues requiring a hearing. It is well established that parties do not have an absolute right to a hearing. It is only when the moving party presents a prima facie showing of "substantial and material factual issues" which would warrant setting aside the election that it is entitled to an evidentiary hearing3 and Respondent has not made such a showing herein. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements. 4 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. 5 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 Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a Texas corporation, is engaged in the retail sale of groceries at its store located at Highway 171 North in Leesville, Louisiana, the only facility involved herein. During the past 12 months, a representative period, Respondent, in the course and conduct of its business operations, purchased and received goods and products valued in excess of $50,000, which goods and products were shipped directly to Respondent's store from points located 3 N.L.R.B. v. Modine Manufacturing Company, 500 F.2d 914 (C.A. 8, 1974), enfg. 203 NLRB 527 (1973): Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976): Janler Plastic Mold Corporation, 191 NLRB 162 (1971): Crest Leather Manufacturing Corporation, 167 NLRB 1085 (1967). and cases cited therein. outside the State of Louisiana. During the same representative period, Respondent's gross volume of business 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. 11. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, Local 1691, 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 I. 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 full-time and regular part-time employees employed at the Respondent's Leesville, Louisi- ana, store located on Highway 171 North; excluding manager, assistant managers, meat department employees, watchmen, guards and supervisors, as defined in the Act. 2. The certification On February 8, 1977, 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 bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 20, 1977, 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 June 29, 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 4 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.] v. N.LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970). 5 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). 242 STANLEY'S SUPER D or about July 11, 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 employees in said unit. Accordingly, we find that the Respondent has, since July 11, 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 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 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 I. Stanley Stores, Inc., d/b/a Stanley's Super D, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local 1691, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed at the Respondent's Leesville, Louisiana, store located on Highway 171 North; excluding manager, assistant managers, meat department em- ployees, watchmen, 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 June 20, 1977, 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 July 11, 1977, 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(aX5) 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)(X) 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, Stanley Stores, Inc., d/b/a Stanley's Super D, Leesville, Louisiana, 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 Retail Clerks Inter- national Association, Local 1691, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees employed at the Respondent's Leesville, Louisi- ana, store located on Highway 171 North; excluding manager, assistant managers, meat department employees, watchmen, guards and supervisors, as defined in the Act. 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 Leesville, Louisiana, store copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 15, 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 thereaf- ter, 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 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 Clerks International Association, Local 1691, 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: All full-time and regular part-time em- ployees employed at our Leesville, Louisi- ana, store located on Highway 171 North; excluding manager, assistant managers, meat department employees, watchmen, guards and supervisors, as defined in the Act. STANLEY STORES, INC., D/B/A STANLEY'S SUPER D 244