Globe Discount City

GLOBE DISCOUNT CITY 21 Walgreen Louisiana Co., Inc., d/b/a Globe Discount City and Retail Clerks International Association, Local 1691, AFL-CIO. Case 15-CA-5395 January 3, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on August 20, 1974, by Retail Clerks International Association, Local 1691, AFL-CIO, herein called the Union, and duly served on Walgreen Louisiana Co., Inc., d/b/a Globe Discount City, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on September 5, 1974, 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 April 18, 1974, following a Board election in Case 15-RC-5207 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 June 10, 1974, 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 September 16, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and raising two affirmative defenses. On September 19, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 4, 1974, 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 filed a response 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 and response to the Notice To Show Cause the Respondent, in effect, attacks the validity of the Union's majority status and certification because the unit determined was inappropriate and because of the failure to set aside the election on Respondent's objections. Respondent now requests a hearing. The General Counsel contends that the Respondent is raising issues which were or could have been raised in the representation proceeding and is precluded from relitigating them herein. We agree with the General Counsel. Our review of the record herein shows that, after a hearing, the Regional Director on September 19, 1973, issued a Decision and Direction of Election finding, contrary to the Respondent, that the Respondent and its two licensees (Zale and Meldis- co) were joint employers and directing an election in a unit of employees excluding those of Meldisco whom the Respondent would have included. The Respondent filed a timely request for review reiterat- ing its joint employer and unit contentions. On October 11, 1973, the Board granted the request for review because it raised substantial issues warranting review and stayed the election pending a Board decision. Thereafter on October 31, 1973, the Board granted the Union's motion to order the election and impound ballots and permitted the Meldisco employ- ees to vote subject to challenge. On November 29, 1973, the election was held and ballots impounded; the Respondent filed timely objections to the election. On February 22, 1974, the Board issued a Decision on Review in which it affirmed the Regional Director's joint employer finding, determined that a unit including the Meldisco employees was appropri- ate, and directed that the impounded ballots be opened and counted, including the Meldisco employ- ees' ballots. The tally of ballots showed that 61 votes were cast for, and 37 against, the Union with 10 ballots challenged. The Regional Director then investigated the Respondent's objections which alleged, in substance, that (1) the Union threatened employees, (2) the Union improperly promised a waiver of initiation fees, and (3) the Board agent failed to maintain the security of the ballots and polling place. The Regional Director, on April 18, 1 Official notice is taken of the record in the representation proceeding , 1968), Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 Case 15-RC-5207, as the term "record" is defined in Secs. 102.68 and (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1957); 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See Follett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (C.A. 7, 1968); Sec. LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 9(d) of the NLRA. 216 NLRB No. 6 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1974, issued a Supplemental Decision and Certifica- tion of Representative in which he found that (1) no evidence was submitted by Respondent as to alleged union threats during the campaign or the election, (2) the evidence failed to establish that the Union made improper promises to waive initiation fees, and (3) the evidence did not sustain the allegation that the Board agent failed to maintain the security of the ballots and polling place. Accordingly, the Regional Director found that the objections raised no substan- tial or material issues, overruled the objections, and certified the Union. Thereafter, the Respondent filed a Request for Review of the Regional Director's Supplemental Decision and Certification of Representative in which it again raised its objection as to the promised waiver of initiation fees. The Board on June 3, 1974, denied the Respondent's request for review as raising no substantial issues warranting review. It thus appears that the Respondent is attempting to raise herein issues which were raised and resolved in the underlying representation case. With respect to the request for a hearing on the representation case issues, which request is raised for the first time in the response, we note that it is well established that parties do not have an absolute right to a hearing.2 Absent the presentation by Respondent of a prima facie showing of substantial issues warranting a hearing-a showing not made herein-it is clear a hearing is not required. Accordingly, the Respon- dent's request for a hearing is denied. 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 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 subsidiary of Walgreen Company, Inc., an Illinois corporation operating retail drug stores, discount stores, and restaurant type opera- tions in various States of the United States, is engaged in the retail sale of discount drugs and related items at its Baton Rouge, Louisiana, facility, located at 5905 Florida Boulevard, the only facility involved herein. During the past 12 months, Respon- dent received in excess of $500,000 from the retail sale to its customers of the above-named products and during the same period, Respondent received in excess of $50,000 of the above-named products from its suppliers located at points directly outside the State of Louisiana. 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 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 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 full-time and all regular part-time selling and nonselling retail store employees of the Employer at its retail operation known as Globe Shopping City at 5905 Florida Boulevard, Baton Rouge, Louisiana, including employees of the license departments operating under license agreements with Zale-Service Louisiana, Inc., and Meldisco, Division of Melville Shoe Corporation; excluding employees of Uniroyal Merchandising Company, Inc.; employees of Baton Rouge Discount, Inc., d/b/a Hinky Dinky; pharmacists and pharmacist interns; the Globe Store manager, hard line manager, soft line manager, inventory 2 Richmond Division of Pak- Well, 206 NLRB 260 (1972); Big Three Industries, Inc, Formerly Big Three Industrial Gas & Equipment Co., 214 NLRBNo 104(1974). 3 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(1) and 102.69(c). GLOBE DISCOUNT CITY control manager, office manager, drug depart- ment manager, appliance department manager, Sun Room manager, camera department manag- er, and management trainees; the Zale-Service Louisiana, Inc., store manager; seasonal and temporary employees, office clerical employees, store detectives and guards, and supervisors as defined in the Act. 2. The certification On November 29, 1973, a majority of the employ- ees 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 bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on April 18, 1974, 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 10, 1974, 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 10, 1974, 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 10, 1974, 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 the 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 23 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. Walgreen Louisiana Co., Inc., d/b/a Globe Discount City, 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 all regular part-time selling and nonselling retail store employees of the Employ- er at its retail operation known as Globe Shopping City at 5905 Florida Boulevard, Baton Rouge, Louisiana, including employees of the license depart- ments operating under license agreements with Zale- Service Louisiana, Inc., and Meldisco, Division of Melville Shoe Corporation; excluding employees of Uniroyal Merchandising Company, Inc.; employees of Baton Rouge Discount, Inc., d/b/a Hinky Dinky; pharmacists and pharmacist interns; the Globe Store manager, hard line manager, soft line manager, inventory control manager, office manager, drug department manager, appliance department manag- er, Sun Room manager, camera department manag- er, and management trainees; the Zale-Service Louisiana, Inc., store manager; seasonal and tempo- rary employees, office clerical employees, store detectives and 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 April 18, 1974, the above-named labor 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 10, 1974, 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 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Walgreen Louisiana Co., Inc., d/b/a Globe Discount City, 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 all regular part-time selling and nonselling retail store employees of the Employer at its retail operation known as Globe Shopping City at 5905 Florida Boulevard, Baton Rouge, Louisiana, including employees of the license departments operating under license agreements with Zale-Service Louisiana, Inc., and Meldisco, Division of Melville Shoe Corporation; excluding employees of Uniroyal Merchandising Company, Inc.; employees of Baton Rouge Discount, Inc., d/b/a Hinky Dinky; pharmacists and pharmacist interns; the Globe Store manager, hard line manager, soft line manager, inventory control manager, office manager, drug depart- ment manager, appliance department manager, Sun Room manager, camera department manag- er, and management trainees; the Zale-Service Louisiana, Inc., store manager ; seasonal and temporary employees, office clerical employees, store detectives and 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 Baton Rouge, Louisiana, operation copies of the attached notice marked "Appendix." 4 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 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 15, 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 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 GLOBE DISCOUNT CITY 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 all regular part-time selling and nonselling retail store employees of the Employer at its retail operation known as Globe Shopping City at 5905 Florida Boulevard, Baton Rouge, Louisiana, including employees of the license depart- ments operating under license agreements with Zale-Service Louisiana, Inc., and Mel- disco, Division of Melville Shoe Corpora- tion ; excluding employees of Uniroyal Mer- chandising Company, Inc.; employees of 25 Baton Rouge Discount, Inc., d/b/a Hinky Dinky; pharmacists and pharmacist interns; the Globe Store manager, hard line manag- er, soft line manager, inventory control manager, office manager, drug department manager, appliance department manager, Sun Room manager, camera department manager, and management trainees; the Zale-Service Louisiana, Inc., store manager; seasonal and temporary employees, office clerical employees, store detectives and guards, and supervisors as defined in the Act. WALGREEN LOUISIANA CO., INC., D/B/A GLOBE DISCOUNT CITY