Levitz Furniture Co. of Santa Clara, Inc.

LEVITZ FURNITURE CO. OF SANTA CLARA, INC. 417 Levitz Furniture Company of Santa Clara, Inc. and Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-CIO. Case 20-CA-8632 June 12, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on September 28, 1973, by Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Levitz Furniture Company of Santa Clara, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint on October 15, 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, 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 July 17, 1973, following a Board election in Case 20-RC-10447 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 September 21, 1973, 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 October 24, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and asserting an affirmative defense. On November 19, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on Decembct 3, 1973, the Board issued an order transferring the proceeding to the Board and a Noti;e To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause, entitled "Answer to Notice To Show Cause." The Union filed a reply to Respondent's "Answer to Notice To Show Cause." 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 asserts that the Union's certification was improperly issued because the Union's lack of majority would have been established had six challenges not been sus- tained or because the election in the underlying representation case should have been set aside on the basis of its objections. In its response to the Notice To Show Cause, Respondent reiterates its representa- tion case contentions, and also contends that certain misrepresentations, the decision of the Supreme Court in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270 (1973), and the alleged disenfranchising of certain unit employees require the denial of the General Counsel's Motion for Summary Judgment. Our review of the record herein, including the record in Case 20-RC-10447, reveals an election conducted pursuant to a Stipulation for Certification Upon Consent Election on February 25, 1972, which resulted in a 54-to-48 vote in favor of the Union, with 17 challenged and 2 void ballots. Respondent filed timely objections alleging, in substance, that the election results had been unfairly affected by (1) the Union's offer to waive initiation fees, (2) its threats to employees, (3) certain preelection conduct of the Union's agents in and around Respondent's premis- es, and (4) misconduct by a Board agent resulting in the casting of a blank ballot by an employee. After an investigation, the Regional Director issued a Report on Objections and Challenged Ballots, recommending that one challenge and one objection be overruled, and the remainder of the challenges and objections be resolved at hearings. There being no exceptions to this report, as subsequently supple- mented and corrected, the Board, on August 14, 1972, ordered hearings on the challenges and objections. The hearing on the challenged ballots, which was severed from that on objections, was held. Thereaf- ter, the Hearing Officer issued a report, recommend- ing that the challenges to 11 of the ballots be overruled, and the remaining 6 be sustained. Follow- ing Respondent's timely exceptions to this report, the ' Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969); Case 20-RC-10447, as the term "record" is defined in Secs 102 68 and Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See NLRB 378, enfd. 397 F 2d 91 (C A 7, 1968), Sec. 9(d) of the NLRA LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), 211 NLRB No. 48 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board, on May 25, 1973, issued a Decision and Direction, ordering the opening and counting of the 11 ballots . The Regional Director, thereafter, on June 8, 1973, issued a revised tally of ballots showing a final vote of 57 to 56 in favor of the Union. Concurrent with the hearing on challenges, on February 6 and 7, 1973, a hearing was held on the Respondent's objections, which had been consolidat- ed for hearing with an unfair labor practice com- plaint against the Union.2 On April 13, 1973, the Administrative Law Judge issued his Decision, recommending that the complaint be dismissed and the objections to the election be overruled. On July 11, 1973, after considering the Respondent's excep- tions, the Board issued its Decision and Order affirming the Administrative Law Judge and adopt- ing his recommended Order.3 Thereafter, on July 17, 1973, the Regional Director certified the Union as exclusive collective-bargaining representative. With respect to the issues arising from the Respondent's objections and challenges, it appears that Respondent has been afforded adequate oppor- tunities to litigate, and did litigate, these matters in the underlying representation case . It now appears that it is seeking to relitigate them in this unfair labor practice 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.4 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. In its response to the Notice To Show Cause, the Respondent also raises issues not heretofore consid- ered by the Board in the representation case. The Respondent contends that the Union allegedly misrepresented material facts by offering to waive a nonexistent initiation fee, and that 16 unit employees were not informed that they were eligible to vote, and were thus denied the right to vote in the election. These contentions are not now timely raised in this 2 Case 20-CB-2653. 3 204 NLRB No. W. 4 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 ( 1941); unfair labor practice proceeding as they could have been raised in the underlying representation case.5 Respondent also contends that the Supreme Court decision in N. L. R B. v. Savair Mfg. Co., 414 U.S. 270 (1973), issued during the pendency of this proceed- ing, requires denial of the Motion for Summary Judgment. We find no merit in this contention as a specific finding was made on this objection in the representation case that the offer to waive initiation fees by the Union was unqualified and uncondition- al. An unconditional waiver such as this, available to employees both before and after the election, is permissible under the Savair decision, supra, in which the Supreme Court held prejudicial a waiver of an initiation fee conditioned on the employee signing with the Union prior to the election. Irwindale Division, Lau Industries, a Division of Phillips Indus- tries, Inc., 210 NLRB No. 42 (1974). See also Con- Pac, Inc., 210 NLRB No. 70 (1974). It thus appears that there are no issues properly litigable in this proceeding. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the entire record , the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, Levitz Furniture of Santa Clara, Inc., is a California corporation with an office and sales facility located in Santa Clara, California, engaged in the retail sale of furniture . During the past year, Respondent, in the course and conduct of its business operations, had gross sales in excess of $500,000. During the past year, Respondent, in the course and conduct of its business operations, purchased and received goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. 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 428, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). S See Heritage Nursing Center, Inc., 207 NLRB No. 118. LEVITZ FURNITURE CO. OF SANTA CLARA, INC. 419 III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 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. 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 the Employer at its Laurelwood Road, Santa Clara, California, facili- ty, excluding guards and supervisors as defined in the Act. 2. The certification On February 25, 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 20 designated the Union as their 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 July 17, 1973, 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 July 23, 1973, 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 September 21, 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 collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since September 21, 1973, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees i' 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, 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 (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. Levitz Furniture Company of Santa Clara, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by the Employer at its Laurelwood Road, Santa Clara, California, facility, excluding 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 July 17, 1973, 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 September 21, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees of Respondent in the appropriate unit, Respon- dent 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, Levitz Furniture Company of Santa Clara, Inc., Santa Clara, California, its officers, agents, succes- sors, 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 Store Em- ployees Union, Local 428, Retail Clerks Internation- al Association, AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All employees employed by the Employer at its Laurelwood Road , Santa Clara, California, facili- ty, excluding 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 Laurelwood Road; Santa Clara, California, location copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 20 after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees 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. 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 Store Employees Union, Local 428, Retail Clerks International 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 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 employed by the Employer at its Laurelwood Road, Santa Clara, Cali- fornia, facility, excluding guards and super- visors as defined in the Act. LEviTz FURNITURE COMPANY OF SANTA CLARA, 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. LEVITZ FURNITURE CO. OF SANTA CLARA, INC. 421 Any questions concerning this notice or compli- 450 Golden Gate Avenue, San Francisco, California ance with its provisions may be directed to the 94102, Telephone 415-556-3197. Board's Office, 13018 Federal Building, Box 36047,