King's Department Stores, Inc.

KING'S DEPARTMENT STORES, INC. 863 King's Department Stores, Inc. and Retail Clerks In- ternational Association, Local Union No. 204, AFL-CIO. Case 11-CA-5987 May 9, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO should not be granted. Respondent 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 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 Upon a charge filed on December 31, 1974, by Retail Clerks International Association, Local Union No. 204, - AFL-CIO, herein called the Union, and duly served on King's Department Stores, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint on January 8, 1975, alleging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and no- tice 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 8, 1974, following a Board election in Case 11-RC-3910-the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about December 19, 1974, and at all times there- after, 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 January 20, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and asserting five affirma- tive defenses. On February 3, 1975, counsel for the General Coun- sel filed directly with the Board a motion to strike portions of Respondent's answer and a Motion for Summary Judgment. Subsequently, on February 13, 1975, 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 Official notice is taken of the record in the representation proceeding, Case 11-RC-3910, 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, 1968), Golden Age Beverage Co., 167 NLRB 151 (1967), 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 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. In its answer to the complaint and response to the Notice To Show Cause, Respondent, in effect, attacks the validity of the election and the resulting certifica- tion of the Union in the underlying representation Case 11-RC-3910. It asserts, by denial and affirmatively, that it is not an employer in commerce within the meaning of the Act, that the unit is inappropriate, and that it was denied due process of law by the failure to hold a hearing on its objections to the conduct of the election, citing Henderson Trumbull Supply Corpora- tion v. N.L.R.B., 501 F.2d 1224 (C.A. 2, 1974). Re- spondent also affirmatively defends on the ground that it has newly discovered evidence concerning alleged supervisory participation in the Union's organizing campaign. The General Counsel moves that Respon- dent's denials and defenses be stricken as an attempt to raise issues which were raised and litigated in the repre- sentation case, and with regard to Respondent's alleged newly discovered evidence, that it be stricken as it lacks specificity and is untimely. We have reviewed the record of the underlying rep- resentation proceeding and it reveals that the Regional Director issued a Decision and Direction of Election on July 24, 1974, finding inter alia, that Respondent was an employer in commerce within the meaning of the Act and that employees in a single store constituted an appropriate unit. Respondent requested review of this Decision arguing that the Regional Director's unit determination was erroneous and that a multistore unit was appropriate. The Board, on August 16, 1974, de- nied review as it raised no substantial issues warranting review. Thereafter, on August 23, 1974, an election was conducted in which the Union received a majority of the votes cast. Respondent filed timely objections to conduct of the election, alleging, in substance, that the Union had engaged in improper electioneering and had made misrepresentations concerning the pay at other of Respondent's facilities. Following an administrative in- vestigation, the Regional Director on November 8, 1974, issued a Supplemental Decision and Certification of Representative, in which he concluded that Respon- dent's objections raised no material or substantial is- sues and were insufficient in fact or law to warrant setting aside the election. Respondent requested review 217 NLRB No. 146 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of this Supplemental Decision , asserting, inter alia, that the Regional Director erred in not conducting a hear- ing on its objections, relying on the court's decision in Henderson Trumbull Supply Corp., supra. On Decem- ber 10, 1974, the Board denied Respondent's request for review as it raised no substantial issues warranting review, thereby affirming the Regional Director's determination that a hearing was unnecessary on the issues raised by Respondent's objections.' From the foregoing review of the record, it appears that we have previously considered in the underlying representation proceeding Respondent 's contentions herein concerning its status as an employer in com- merce, the appropriate unit, and the necessity of a hear- ing on its objections, including the application of Hen- derson Trumbull Supply Corp., thereto. Accordingly, we find merit in the General Counsel's assertion against relitigation, as it is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances, issues which were or could have been litigated in the representation proceeding may not be relitigated in the subsequent unfair labor practice proceeding alleging a violation of Section 8(a)(5) of the Act.' As previously noted, Respondent affirmatively de- fends on the ground that it has newly discovered evi- dence concerning alleged supervisory participation in the Union's organizational efforts. The General Coun- sel moves to strike this defense as lacking specificity and being untimely. In this regard , we note the letter from Respondent to the Regional Director dated May 13, 1974, which is attached as an exhibit to the General Counsel's motion. In the letter, Respondent advised the Regional Director, inter alia, of alleged supervisory participation in the Union's obtaining designation cards.in support of its showing of interest for the repre- sentation petition . It was thus aware of the potential of supervisory involvement in the Union's organizational effort some 3 months prior to the representation elec- tion and the time for filing objections to the election, yet it offered no reason why this issue of supervisory assistance could not have been timely raised as an ob- jection to the election. In these circumstances, we are constrained to agree with the General Counsel that Respondent's affirmative defense based on alleged newly discovered evidence of supervisory assistance should be stricken.4 Accordingly, we shall grant the General Counsel's motion to strike those portions of Respondent's answer to the complaint and affirmative defenses which raise issues which were, or could have been, raised and liti- gated in the underlying representation proceeding, and shall also grant his 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 is a Delaware corporation engaged in the business of selling general merchandise at retail at stores throughout the United States. It operates a retail store at Wellons Village Shopping Center in Durham, North Carolina, which facility is the only store in- volved herein. During the past 12 months, a representa- tive period of all times material herein , Respondent sold and distributed goods of a gross value in excess of $500,000. During- the same period, Respondent re- ceived goods valued in excess of $50,000 from points directly outside the State of North Carolina. We fmd, on the basis of the foregoing, that Respond- ent 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 International Association, Local Union No. 204, 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees at the Employer's Wellons Village store in Durham, North Carolina, excluding all leased department employees, confidential employees, managerial employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification 2 Danville Industnes, Inc, 210 NLRB 307 (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) 4 See Heritage Nursing Center, Inc., 207 NLRB 826 (1973); The Pruden- tial Insurance Company ofAmenca, 215 NLRB No. 30 (1974); Jason/Em- pire, Inc. 212 NLRB 137 (1974). On August 23, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 11, designated the Union as their represen- tative for the purpose of collective bargaining with the KING'S DEPARTMENT STORES, INC. Respondent. The Union was certified as the collective- bargaining representative of the employees in said unit on November 8, 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 December 16, 1974, and at all times thereafter, the Union has requested the Re- spondent 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 December 19, 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 representative for collective bar- gaining of all employees in said unit. Accordingly, we find that the Respondent has, since December 19, 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, Respondent 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 operations de- scribed 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 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, embody such un- derstanding in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences 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), Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 865 229 (1962), enfd. 328 F.2d- 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Com- pany, 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. King's Department Stores, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local Union No. 204, 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 at the Employer's Wellons Village store in Durham, North Carolina, excluding all leased department em- ployees, confidential employees, managerial em- ployees, professional employees, guards, and supervi- sors 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 November 8, 1974, the above-named labor 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 bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 19, 1974, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respond- ent 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 in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, King's Depart- ment Stores, Inc., Durham, North Carolina, 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 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment with Retail Clerks International As- sociation, Local Union No. 204, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All full --time and regular part-time employees at the Employer's Wellons Village store in Durham, North Carolina, excluding all leased department employees, confidential employees, managerial employees, professional employees, 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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. - (b) Post at its Wellons Village store in Durham, North Carolina,icopies of the attached notice marked "Appendix."5 Copies of said notice, on forms pro- vided by the Regional Director for Region 11, 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 Respondent to in- sure that said notices are not altered, defaced, or cov- ered by any other material. 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." (c) Notify the Regional Director for Region 11, 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 NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Retail Clerks International Association , Local Union No. 204, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere 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 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 under- standing in a signed agreement. The bargaining unit is: All full-time and regular part-time employees at the Employer's Wellons Village store in Dur- ham, North Carolina, excluding all leased de- partment employees, confidential employees, managerial employees, professional employees, guards, and supervisors as defined in the Act. KING'S DEPARTMENT STORES, INC