J. C. Penney Co., Inc.

J C PENNEY COMPANY, INC 469 J. C. Penney Company, Inc and Highway and Local Motor Freight Employees, Local 667, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Case 26-CA-5974 June 8, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a charge filed on January 23, 1976, by High- way and Local Motor Freight Employees, Local 667, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on J C Penney Company, Inc, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint and notice of hearing on February 5, 1976, 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 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 25, 1975, following a Board election in Case 26-RC- 5065 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 October 10, 1975, 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 18, 1976, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint On March 8, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment Subsequently, on March 17, 1976, the Board issued an order transferring the proceed- 'Official notice is taken of the record in the representation proceeding, Case 26-RC-5065, as the term record' is defined in Secs 10268 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, as amended ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted On March 19, 1976, Re- spondent filed a brief in 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 In its answer to the complaint and brief in opposi- tion to the Motion for Summary Judgment, Respon- dent denies the representative status of the Union based on (1) its contention that the unit is inappro- priate, (2) its election objections, and (3) its claim that the failure to grant a hearing on the objections was a denial of due process In his Motion for Sum- mary Judgment, counsel for the General Counsel contends that Respondent seeks to relitigate issues litigated and resolved in the representation case We agree Review of the record, including the representation proceedings in Case 25-RC-5065, reveals that at the hearing the Union and Respondent disagreed as to the unit placement of the data processing and rec- ords office employees whom the Union would have excluded and the Respondent would have included After the hearing, the parties submitted briefs on this issue On September 12, 1975, the Acting Regional Director issued his Decision and Direction of Elec- tion in which he ordered an election in a unit of all employees, excluding the data processing and rec- ords office employees based on his finding that they did not share a sufficient community of interest with the other employees Respondent filed a timely re- quest for review on the grounds that the Acting Re- gional Director's findings were not supported by the evidence and that his decision conflicted with estab- lished Board precedent By telegram of October 8, 1975, the Board denied review because the request raised no substantial issues warranting review The election was held on October 10, 1975, and chal- lenges were determinative 2 Respondent filed timely objections alleging, in substance, that the Union created an atmosphere of fear and confusion (1) by initiating and failing to explain threatening and other statements made by the employees prior to the election, (2) by a state- ment at a union meeting that union officials were the police and would ignore violence on any picket line, 2 The tally showed 34 votes cast for the Union 28 against the Union, and 20 challenged ballots 224 NLRB No 72 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (3) last-minute misrepresentations regarding the replacement of economic strikers and the obligation of common carriers to cross picket lines After inves- tigation, the Regional Director, on November 25, 1975, issued his Supplemental Decision and Certifi- cation of Representative, overruling Respondent's objections entirely, sustaining 19 of the 20 chal- lenges, and certifying the Union since the overruled challenge was not determinative With respect to Respondent's objections, the Regional Director found that the statements were not made by union agents and were not so aggravated as to prevent free choice, that the alleged statement regarding union membership of the police at the picket lines was un- supported by the evidence, and that the alleged mis- representations as to the consequences of a strike were mere campaign propaganda and concerned is- sues to which Respondent had addressed itself on several occasions during the campaign On Decem- ber 5, 1975, Respondent filed exceptions reiterating its objections and seeking a hearing thereon and con- tending, in substance, that the Regional Director's findings were contradictory and not supported by the evidence and that the decision conflicted with Board precedent Alternatively, Respondent reiterated its earlier unit contentions by resubmitting the previous- ly denied request for review of the Decision and Di- rection of Election By telegram of December 31, 1975, the Board denied review on the grounds that the request raised no substantial issues It thus ap- pears that the Respondent is attempting to relitigate issues raised and resolved in the underlying represen- tation case 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 3 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 4 We shall, accordingly, grant the Motion for Summary Judgment 3 See Pittsburgh Plate Glass Co v NLRB 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 4 In its answer and brief in opposition to the Motion for Summary Judg- ment Respondent contends that the denial of a hearing on its election On the basis of the entire record, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times ma- terial herein, a Mississippi corporation with an office and place of business located in Southaven, Missis- sippi, where it is engaged in the warehousing and distribution of hardware and automotive equipment During the past 12 months, Respondent, in the course and conduct of its business operations, pur- chased and received at its Southaven, Mississippi, lo- cation products valued in excess of $50,000 directly from points located outside the State of Mississippi, and during the same period of time Respondent sold and shipped from its Southaven, Mississippi, location products valued in excess of $50,000 directly to points located outside the State of Mississippi 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 Highway and Local Motor Freight Employees, Lo- cal 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing 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 employees involved in the following de- objections was a denial of due process We find no merit in this contention It is well established that parties do not have an absolute right to a hearing on objections, and that denial of a hearing, where, as here the objections raise no substantial and material issues , does not constitute denial of due process GTE Lenkurt, Incorporated 218 NLRB 802 (1975), Abbott Labora tortes, Ross Laboratories Division, 217 NLRB 859 (1975), Heavenly Valley Ski Area a California Corporation and Heavenly Valley a Partnership 215 NLRB 734 (1974) J C PENNEY COMPANY, INC partments of Respondent's Southaven, Missis- sippi, distribution center maintenance techni- cians, custodians, picking, full case, picking, less than full case, shipping, receiving, replenish- ment, making, inventory and audit, unit heads of these departments and clerks in shipping, re- ceiving, and replenishment, but excluding rec- ords office employees, data center employees, office clerical employees, guards, and supervi- sors as defined in the Act 2 The certification On October 10, 1975, 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 26, 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 25, 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 October 10, 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 October 10, 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 October 10, 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 471 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 J C Penney Company, Inc, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Highway and Local Motor Freight Employees, Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, is a labor organization within the meaning of Section 2(5) of the Act 3 All employees involved in the following depart- ments at Respondent's Southaven, Mississippi, distri- bution center maintenance technicians, custodians, picking, full case, picking, less than full case, ship- ping, receiving, replenishment, making, inventory and audit, unit heads of these departments and clerks in shipping, receiving, and replenishment, but excluding records office employees, data center em- ployees, office clerical employees, guards, and super- visors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 Since November 25, 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 October 10, 1975, and 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, J C Penney Company, Inc, Southaven, Mississippi, 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 Highway and Local Mo- tor Freight Employees, Local 667, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate unit All employees involved in the following de- partments at Respondent's Southaven, Missis- sippi, distribution center maintenance techni- cians, custodians, picking, full case, picking, less than full case, shipping, receiving, replen- ishment, making, inventory and audit, unit heads of these departments and clerks in ship- ping, receiving, and replenishment, but exclud- ing records office employees, data center em- ployees, office clerical 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 Southaven, Mississippi, distribution center copies of the attached notice marked "Appen- dix " I Copies of said notice, on forms provided by the Regional Director for Region 26, 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 26, 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 High- way and Local Motor Freight Employees, Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 employees involved in the following de- partments at Respondent's Southaven, Missis- sippi, distribution center maintenance techni- J C PENNEY COMPANY, INC 473 clans, custodians, picking, full case, picking, cluding records office employees, data center less that full case, shipping, receiving, replen- employees, office clerical employees, guards, ishment, making, inventory and audit, unit and supervisors as defined in the Act heads of these departments and clerks in ship- ping, receiving, and replenishment, but ex- J C PENNEY COMPANY, INC