The Boston Store

THE BOSTON STORE 505 The Boston Store and General Warehousemen Local No 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America Case 21-CA-14367 June 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a charge filed on February 9, 1976, by Gen- eral Warehousemen Local No 598, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Union, and duly served on The Boston Store, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Di- rector for Region 21, issued a complaint and notice of hearing on February 13, 1976, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended Copies of the charge, com- plaint, and notice of hearing before an Administra- tive 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 December 30, 1975, following a Board election in Case 21-RC- 14040, 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 February 3, 1976, and at all times thereafter, Respondent has refused, and con- tinues 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 February 24, 1976, Respondent filed its answer to the complaint, with exhibits attached, ad- mitting in part, and denying in part, the allegations in the complaint, submitting affirmative defenses, and requesting that the complaint be dismissed 2 i Official notice is taken of the record in the representation proceeding Case 21-RC-14040, as the term `record" is defined in Secs 102 68 and 102 69(g) of the Boards 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, as amended 2 By its answer, the Respondent denies par 9 of the complaint which alleges that the Respondent has refused to bargain Attached to the General Counsel s Motion for Summary Judgment is a letter (Exh P) sent by coun- sel for the Respondent to counsel for the Union in which he states that he On March 19, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment, with exhibits attached, submitting, in effect, that Respondent, in its answer is seeking to relitigate issues previously litigated by the Board in the prior representation proceeding, and raising no issues warranting a hearing Subsequently, on April 1, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted Respondent thereafter filed an opposition to the Motion for Sum- mary 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 opposition to the Motion for Summary Judg- ment, as in the affirmative defenses alleged in its an- swer to the complaint, with attached exhibits,' the Respondent attacks the Regional Director's and the Board's several rulings at the various stages of the representation proceeding, including the Board's De- cision on Review, issued on December 11, 1975,' in which the Board, after having considered the entire record with respect to the issues under review, in- must decline" the Union s request to bargain and that the Respondent `intends to pursue its legal remedies in connection with the incorrect open- ing and counting of the ballot of Jeffrey Hamilton " In its answer, the Respondent does not seek to controvert the contents of the letter Accord ingly we shall deem the allegation of par 9 to be admitted Schwartz Broth ers Inc and District Records Inc, 194 NLRB 150 (1971), The May Depart ment Stores Company, 186 NLRB 86 (1970), Carl Simpson Buick, Inc 161 NLRB 1389 (1966) 3 These exhibits, which are the same as those that the Respondent previ- ously submitted in the prior representation proceeding, constitute a part of the record in that proceeding and include, inter aba, a transcript of hearing held on January 27 1975 in which the only issue presented by the record was the supervisory status of Jeffrey Hamilton, Respondent's Request for Review of the Regional Director's Decision and Direction of Election Respondent's objections to conduct affecting the results of the election Respondents Request for Review of the Regional Director's Supplemental Decision and Order, Respondents brief in support of its position on the issues on that part of its request for review of the Regional Director's Sup plemental Decision and Order upon which review had been granted by the Board and two Board telegraphic orders dated March 17, 1975, and Sep- tember 18 1975 respectively The March 17 order denied the Respondent's review of the Regional Director's Decision and Direction of Election as it raised no substantial issues warranting review, except as to the supervisory status of Hamilton As such issue could best be resolved through the chal- lenge procedure the Board amended the Regional Director's decision to permit Hamilton to vote subject to challenge The September 18 order granted the Respondents Request for Review of the Regional Director's Supplemental Decision and Order with respect to the challenge to the ballot of Hamilton and as to Objections I and 2, as it raised substantial issues warranting review In all other respects the request for review was denied as it raised no issues warranting review or a hearing °221 NLRB 1126 224 NLRB No 67 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cluding the Respondent's brief on review, affirmed the Regional Director's determinations to overrule the challenge to Hamilton's ballot and to overrule Objections 1 and 2 Accordingly, the Board remand- ed the case to the Regional Director for further pro- ceedings pursuant to his Supplemental Decision and Order A revised tally of ballots showed that of nine valid ballots counted, five were for, and four were against, the Union Accordingly, the Acting Regional Director certified the Union Thus, the Respondent, by attacking the legal effect or validity of the Certifi- cation of Representative issued on December 30, 1975, and more specifically by its denials, in whole or in part, of the allegations of the complaint, and the submission of the exhibits attached thereto,' and by the arguments propounded in its opposition to the Motion for Summary Judgment, including reliance on the above exhibits therein, is attempting to reliti- gate the same issues which it raised in the representa- tion proceeding, Case 21-RC-14040 In its opposition to the Motion for Summary Judg- ment the Respondent argues, in substance, that the Union's certification was improperly issued because the Respondent was denied due process and an evi- dentiary hearing on substantial and material issues of fact raised by its objections to the election It is well established that parties do not have an absolute right to a hearing on objections to an election It is only when the moving party presents a prima facie show- ing of "substantial and material issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing 6 It is clear that, absent arbi- trary action, this qualified right to a hearing satisfies all statutory and constitutional requirements' 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 8 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 5 See fn 3, supra 6 N L R B v Modine Manufacturing Co, 500 F 2d 914 (C A 8, 1974) 7 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc J v NLRB 424 F 2d 818, 828 (C A D C, 1970) 8 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 (1941) Rules and Regulations of the Board Secs 102 67(f) and 102 69(c) 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 is a California corporation engaged in the operation of retail junior department stores in Los Angeles County and Orange County, California, with a warehouse facility located at 1010 East Sand- hill Avenue, Carson, California In the course and conduct of its business operations, Respondent an- nually has a gross volume of sales valued in excess of $500,000 and annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California 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 General Warehousemen Local No 598, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A The Representation Proceeding I 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 dock employees, truckdrivers, distribution employees, and plant clerical employees em- ployed by Respondent at its facility located at 1010 East Sandhill Avenue, Carson, California, excluding all other employees, office clerical em- ployees, professional employees, guards, and su- pervisors as defined in the Act 2 The certification On March 18, 1975, a majority of the employees of THE BOSTON STORE 507 Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 21, 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 December 30, 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 January 13, 1976, 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 3, 1976, 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 3, 1976, 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 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 The Boston Store is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 General Warehousemen Local No 598, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act 3 All dock employees, truckdrivers, distribution employees, and plant clerical employees employed by Respondent at its facility located at 1010 East Sandhill Avenue, Carson, California, excluding all other employees, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act 4 Since December 30, 1975, 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 5 By refusing on or about February 3, 1976, 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 labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, The Boston Store, Carson, California, 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 General Warehousemen Local No 598, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit All dock employees, truckdrivers, distribution employees, and plant clerical employees em- ployed by Respondent at its facility located at 1010 East Sandhill Avenue, Carson, California, excluding all other employees, office clerical em- ployees, professional employees, guards, and su- pervisors 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 Carson, California, facility, copies of the attached notice marked "Appendix " 9 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, 9In 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 " in conspicuous places, including all places where no- tices to employees are customarily posted Reason- able 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 21, 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Gen- eral Warehousemen Local No 598, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen & 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, 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 dock employees, truckdrivers, distribu- tion employees, and plant clerical employees employed by Respondent at its facility locat- ed at 1010 East Sandhill Avenue, Carson, Cal- ifornia, excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act THE BOSTON STORE