Famous Industries, Inc.

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Famous Industries, Inc. and Retail Clerks Union, Lo- cal 1540, chartered by Retail Clerks International Association, AFL-CIO. Case 13-CA-14155 September 22, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on April 2, 1975, by Retail Clerks Union, Local 1540, chartered by Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Famous Industries, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a com- plaint on April 23, 1975, 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 be- fore 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 March 5, 1975, following a Board election in Case 13-RC-13363 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 March 28, 1975, 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 May 12, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits all of the factual allegations of the complaint, includ- ing the appropriateness of the unit, the certification of the Union, and the Union's request • and Respondent's refusal to bargain. On June 2, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached, submitting, in ef- fect, that Respondent, in its answer, is attempting to relitigate issues which were raised and determined in i Official notice is taken of the record in the representation proceeding, Case 13-RC-13363, 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. the underlying representation proceeding; that there are no material issues of fact not admitted or previ- ously determined requiring a hearing; and that the Board grant the Motion for Summary Judgment and issue an appropriate remedial order. Subsequently, on June 9, 1975, 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- dent thereafter filed an opposition to the General Counsel's motion. 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 As reflected above, the Respondent's answer ad- mits all of the factual allegations of the complaint,2 including the appropriateness of the unit, the certifi- cation of the Union, and the Union's request and Respondent's refusal to bargain. In its opposition to the General Counsel's Motion for Summary Judgment, Respondent attacks the Re- gional Director's and the Board's rulings in the repre- sentation proceeding which did not permit replace- ments for striking employees to vote. The Respondent admits that the "central focus" of its ar- gument is that the Board's failure to permit the re- placements to vote is so prejudicial to the replace- ments and to the Respondent that the ensuing election and the resulting certification is invalid. The record of the prior representation proceeding, which is before us, shows that the Respondent, in its excep- tions to the Regional Director's Supplemental Deci- sion on Challenged Ballots 3 to the Board, raised the issue of the eligibility of the replacements to vote, including the application of Greenspan Engraving Corp., 137 NLRB 1308 (1962), and Tampa Sand & Material Company, 129 NLRB 1273 (1961). As in Greenspan, supra, the strike here began before the election was directed and we see no basis for altering 2 Although in its answer, Respondent denies par III of the complaint which alleges that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, Respondent does admit the allegations of par. II of the com- plaint which sets forth Respondent's business operations and the dollar volume thereof . Moreover, the Regional Director in his Decision and Direc- tion of Election found that Respondent was an employer engaged in com- merce within the meaning of the Act. I The Regional Director found that 15 of the replacements started their employment after the eligibility date of June 16, 1974, and, accordingly, held that their ballots should not be counted. He further found that the 19 strikers were eligible to vote and overruled the Respondent's challenges to their ballots. 220 NLRB No. 85 FAMOUS INDUSTRIES, INC. 485 our usual eligibility standards which require that an employee must be employed on the eligibility date and on the date of the election. In Tampa Sand, su- pra, the Board concluded that replacements working on the date of the election were eligible to vote be- cause the strike occurred after the issuance of the Direction of Election and it was obviously impossible for the employer to hire replacements for an eligibili- ty period already passed. In the present case the strike occurred on June 12, 1974, and the Direction of Election issued on June 21, 1974, using an eligibili- ty date of June 16, 1974. Apart from the fact that the Employer had a reasonable time to hire new employ- ees as replacements subsequent to the strike, it should be noted that in view of a pending 8(b)(7)(C) charge filed by the Employer on June 12, 1974, the Board was required by statute to conduct an election forthwith. Moreover, the Employer did not hire re- placements until June 20, some 8 days after the com- mencement of the strike. In view of all the circum- stances, we find no reason to vary the rule enunciated in Greenspan, that to be eligible to vote an employee must be employed during the eligibility payroll period and on the date of the election. We, therefore, perceive no error in the denial of review 4 on the ground that it raised no substantial issues war- ranting review. By its contention, and by its denials, in whole or in part, of the allegations of the complaint and the argu- ments propounded in its opposition to the General Counsel's Motion for Summary Judgment, the Re- spondent is attempting to relitigate the same issues which it raised in the representation proceeding, Case 13-RC-13363. It is well settled that in the ab- sence 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 proceed- ings 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. We shall, accordingly, grant the Motion for Summary Judgment. 4 Member Kennedy would have granted review 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). On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, an Illinois corporation with its principal of- fices located at 7350 West 15th Street, Forest Park, Illinois, where it is engaged in the retail sale and dis- tribution of alcoholic beverages and related prod- ucts. Involved herein is Respondent's retail liquor store located at 7339 West Madison Street, Forest Park, Illinois. During the past calendar year, a repre- sentative period, Respondent, in the course and con- duct of its business operations, received revenues in excess of $500,000 from the retail sale and distribu- tion of alcoholic beverages and related products. During the past calendar year, a representative peri- od, Respondent, in the course and conduct of its business operations, purchased and caused to be transported to its Forest Park store and its other Illi- nois places of business alcoholic beverages and relat- ed products valued in excess of $5,000, which were shipped directly from points located outside the State of Illinois. 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 Retail Clerks Union, Local 1540, chartered by Re- tail Clerks International Association, 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 con- stitute 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 of Respondent's store located at 7339 West Madi- son, Forest Park, Illinois, excluding store man- 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agers, and professional employees, guards and supervisors as defined in the Act. 2. The certification On July 26, 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 13, 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 March 5, 1975, 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 March 13, 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 March 28, 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 March 28, 1975, and at all times thereafter, re- fused 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 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. Famous Industries, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 1540, chartered by Retail Clerks International Association, 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 of Respondent's store located at 7339 West Madison, Forest Park, Illinois, excluding store managers, and professional employees, 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 March 5, 1975, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 28, 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 en- gaged 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 FAMOUS INDUSTRIES, INC. 487 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, Fa- mous Industries, Inc., Forest Park, Illinois, its offi- cers, 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 Retail Clerks Union, Lo- cal 1540, chartered by Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All full-time and regular part-time employees of Respondent's store located at 7339 West Madi- son, Forest Park, Illinois, excluding store man- agers, and 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 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 7339 West Madison Street, Forest Park, Illinois, store copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immedi- ately 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 materi- al. (c) Notify the Regional Director for Region 13, 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 Union, Local 1540, chartered by 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employees of Respondent's store located at 7339 West Madison, Forest Park, Illinois, excluding store managers, and professional employees, guards and supervisors as defined in the Act. FAMOUS INDUSTRIES, INC.