Target Stores, Inc.

TARGET STORES, INC. 561 Target Stores, Inc. and Teamsters Local No. 359, Af- filiated With International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 18-CA-4488 July 28, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on February 28, 1975, Team- sters Local No. 359, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Target Stores, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 18, issued a complaint on March 18, 1975, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair la- bor 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. Cop- ies 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 com- plaint alleges in substance that on November 21, 1974, following a Board election in Case 18- RC-10031 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate;' and that, commencing on or about February 14, 1975, and at all times thereafter, Respondent has re- fused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On April 11, 1975, Re- spondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and raising affirmative defenses. On April 23, 1975, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on May 5, 1975, 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 'Official notice is taken of the record in the representation proceeding, Case 18-RC-10031, 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. should not be granted. Respondent thereafter filed a response in opposition to the Motion for Summary Judgment. 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 In its answer to the complaint and response to the Motion for Summary Judgment, Respondent, in sub- stance, denies the representative status of the Union because the unit specified is not appropriate and be- cause the Regional Director erred in denying a hear- ing on its objections to the election in Case 18- RC-10031 based on an allegedly incomplete investi- gation which left substantial issues unresolved. In its response to the Motion for Summary Judgment, Re- spondent further alleges it has had no opportunity to participate in an adversary proceeding and that the summary judgment proceeding, absent a hearing on the substantial and material issues raised both before and now, denies it due process. Counsel for the Gen- eral Counsel contends that summary judgment should be granted because there are no issues of dis- puted fact warranting a hearing. Our review of the record, including that of the rep- resentation case, reveals that after a hearing the Act- ing Regional Director for Region 18 issued a Deci- sion and Direction of Election in which he found the appropriate unit after considering the contentions of the parties, rulings of the Hearing Officer, and the record from a previous proceeding between the same parties. The Respondent filed a request for review, attacking the unit found to be appropriate. On Sep- tember 5, 1974, the Board denied the request for re- view as it raised no substantial issues warranting re- view. On September 6, 1974, an election. was conducted in which 70 votes were cast in favor of the Union and 68 against. Thereafter, the Respondent filed timely objections alleging, in substance, numerous union misrepresentations, improper union conduct immedi- ately prior to and during the election, and alteration of a Respondent bulletin. The Regional Director, af- ter conducting an investigation, issued a Supplemen- tal Decision and Certification of Representative in which he found Respondent's objections failed to raise any substantial or material issues, overruled the objections in their entirety, and certified the Union. Thereafter, Respondent filed a request for review again asserting its objections to the election, alleging 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director failed to take into account the cumulative effect of the misrepresentations, and ask- ing for a hearing because allegedly there existed sub- stantial and material issues . On January 6, 1975, the Board denied the request for review on the grounds that it raised no substantial issues warranting review. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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. Respondent now contends that it is being denied due process in both the denial of a hearing on its objections and in this summary judgment proceeding where there is no hearing . It argues that at some point it must be permitted to present evidence and examine and cross-examine witnesses in an adversary hearing. We find no merit in this contention. The Respondent's request for review attacking the unit determination and the overruling of its objections to the election were denied by the Board on the grounds that neither raised any substantial issues warranting review. By such denials, the Board necessarily found that the Respondent raised no issue requiring an evi- dentiary hearing.' Further, due process does not re- quire an evidentiary hearing in this summary judg- ment proceeding because the only issues raised herein by the Respondent are the same issues which were raised and considered in the underlying repre- sentation case. In any event, we again conclude that the matters raised do not warrant a hearing.4 Accord- ingly, we shall grant the Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: 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). 3 Big Three Industries, Inc., Formerly Big Three Industrial Gas & Equip- ment Co., 214 NLRB No. 104 (1974), Raub Supply Company, 215 NLRB No 75 (1974). e Wells Fargo Alarm Services A Division of Baker Industries , Inc, 218 NLRB No 25 (1975) FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Target Stores, Inc., a Minnesota corporation, at all times material herein, has maintained its principal office and place of business in Minneapolis, Minne- sota, where it is engaged in the retail sale of general merchandise, and has maintained and operated a dis- tribution center in Fridley, Minnesota. During the past calendar year, a representative period, Respon- dent, in the course and conduct of its business opera- tions, derived gross revenues in excess of $500,000 and annually purchased and received goods valued in excess of $50,000 which were transported and de- livered to said place of business in Minnesota direct- ly from points located outside Minnesota. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local No. 359, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organi- zation 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All warehouse employees, maintenance employ- ees, and janitors at the Employer's distribution center at Fridley, Minnesota, including receiv- ing employees, receiving office clerical employ- ees, checkers, markers, ticketers, warehousemen, stock men, inventory control clerical employees, shipping employees, shipping office employees, maintenance men, janitors, the day matron, and clerical employees in the purchasing agent's of- fice; excluding employees subordinate to the di- rector of information systems, office clerical em- ployees, traffic department employees, accounts payable and inventory accounting employees, employees of the Minnesota district offices, ca- TARGET STORES, INC. sual employees, daily extra employees regularly scheduled to work less than 15 hours per week, guards and supervisors as defined in the Act. 2. The certification On September 6, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 18, 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 November 21, 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 February 3, 1975, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about February 14, 1975, 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 February 14, 1975, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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, inti- mate, 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 563 request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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); Bur- nett 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. Target Stores, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local No. 359, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees, maintenance em- ployees, and janitors at the Employer's distribution center at Fridley, Minnesota, including receiving em- ployees, receiving office clerical employees, checkers, markers, ticketers, warehousemen, stock men, inven- tory control clerical employees, shipping employees, shipping office employees, maintenance men, jani- tors, the day matron, and clerical employees in the purchasing agent's office; excluding employees sub- ordinate to the director of information systems, of- fice clerical employees, traffic department employ- ees, accounts payable and inventory accounting employees, employees of the Minnesota district of- fices, casual employees, daily extra employees regu- larly scheduled to work less than 15 hours per week, guards and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 21, 1974, the above-named la- bor 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. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By refusing on or about February 14, 1975, 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 Re- spondent 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 interfering 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 engaging in unfair labor practices within the mean- ing 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 Re- lations Board hereby orders that Respondent, Target Stores, Inc., Fridley, Minnesota, 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 con- ditions of employment with Teamsters Local No. 359, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All warehouse employees, maintenance employ- ees, and janitors at the Employer's distribution center at Fridley, Minnesota, including receiv- ing employees, receiving office clerical employ- ees, checkers, markers, ticketers, warehousemen, stock men, inventory control clerical employees, shipping employees, shipping office employees, maintenance men, janitors, the day matron, and clerical employees in the purchasing agent's of- fice; excluding employees subordinate to the di- rector of information systems, office clerical em- ployees, traffic department employees, accounts payable and inventory accounting employees, employees of the Minnesota district offices, ca- sual employees, daily extra employees regularly scheduled to work less than 15 hours per week, 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 Fridley, Minnesota, distribution center copies of the attached notice marked "Appen- dix." S Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's representative, shall be post- ed 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 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5In 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 Teamsters Local No. 359, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is TARGET STORES, INC. reached, embody such understanding in a signed agreement. The bargaining unit is: All warehouse employees, maintenance em- ployees, and janitors at the Employer's distri- bution center at Fridley, Minnesota, including receiving employees, receiving office clerical employees, checkers, markers, ticketers, ware- housemen, stock men, inventory control cleri- cal employees, shipping employees, shipping office employees, maintenance men, janitors, the day matron, and clerical employees in the 565 purchasing agent's office; excluding employ- ees subordinate to the director of information systems, office clerical employees, traffic de- partment employees, accounts payable and inventory accounting employees, employees of the Minnesota district offices, casual em- ployees, daily extra employees regularly scheduled to work less than 15 hours per week, guards and supervisors as defined in the Act. TARGET STORES, INC.