Saxon Paint & Home Care Centers, Inc.

SAXON PAINT & HOME CARE CENTERS, INC. 45 Saxon Paint & Home Care Centers, Inc. and Retail Clerks Union Local 1504, Chartered by Retail Clerks International Association, AFL-CIO & CLC. Case 13-CA-15563 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: February 8, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a charge filed on June 21, 1976, by Retail Clerks Union Local 1504, Chartered by Retail Clerks International Association, AFL-CIO & CLC, herein called the Union, and duly served on Saxon Paint & Home Care Centers, Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint and notice of hearing on July 15, 1976, against Respondent, alleging that Respon- dent 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 before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on April 12, 1976, following a Board election in Case 13-RC-13942, 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 June 15, 1976, 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 July 26, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 2, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 9, 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 Summary Judgment 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 Official notice is taken of the record in the representation proceeding, Case 13-RC-13942, as the term "record" is defined in Secs. 102 68 and 102 69(g) of the Board's Rules and Regulations, Senes 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 26 228 NLRB No. 15 Ruling on the Motion for Summary Judgment In its answer to the complaint and in its response to the Notice To Show Cause Respondent admits all factual allegations of the complaint but denies the validity of the Board's certification of the Union on the basis that the unit found appropriate by the Regional Director's Decision and Direction of Elec- tion is in fact inappropriate. The General Counsel contends that Respondent is attempting here to relitigate matters previously determined in the under- lying representation proceeding. We agree with the General Counsel. Review of the entire record, including that of the representation proceeding in Case 13-RC-13942, discloses that, after a hearing, the Regional Director directed an election among the employees of one of Respondent's stores upon finding the single store unit petitioned for to be appropriate. Respondent filed a request for review contending that the unit found by the Regional Director to be appropriate is, in fact, inappropriate in that it is too narrow in scope and should include the employees of all of Respondent's 21 stores in Cook County, Illinois . The Board, with Member Walther dissenting, advised Respondent in a telegraphic communication of March 24, 1976, that its request for review was denied as not raising a substantial issue warranting review. An election conducted on April 2, 1976, resulted in a vote of 10 for the Union, 5 against the Union, and I challenged ballot. Absent objections to the election the Regional Director certified the Union as exclusive bargaining representative of employees in the unit found to be appropriate. It is well settled that in the absence 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 proceeding.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision (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 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) 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation with head- quarters in Chicago, Illinois, and it maintains a facility at 5807 West 95th Street, Oak Lawn, Illinois (the facility involved herein), where it is engaged in the retail sale of paint, wallpaper, and home decorating supplies. During the past calendar year Respondent received gross revenues in excess of $500,000. During the same period Respondent purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Illinois. We find, on the basis of the foregoing, that Respondent 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 effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local 1504, Chartered by Retail Clerks International Association, AFL-CIO & CLC, 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 purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed at the Respondent's store presently located at 5807 West 95th Street, Oak Lawn, Illinois, but excluding store managers, guards and supervisors as defined in the Act. 2. The certification On April 2, 1976, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director 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 April 12, 1976, 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 May 25, 1976, 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 employees in the above-described unit. Com- mencing on or about June 15, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 15, 1976, 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, Respon- dent 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 opera- tions described 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 meaning 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 understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- SAXON PAINT & HOME CARE CENTERS, INC. 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); Burnett 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. Saxon Paint & Home Care Centers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local 1504, Chartered by Retail Clerks International Association, AFL-CIO & CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed at the Respondent's store presently located at 5807 West 95th Street, Oak Lawn, Illinois, but excluding store managers, 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 April 12, 1976, the above-named labor 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 June 15, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent 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 meaning 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. 3 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 ORDER 47 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Saxon Paint & Home Care Centers, Inc., Oak Lawn, Illinois, 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 of employment with Retail Clerks Union Local 1504, Chartered by Retail Clerks International Association, AFL-CIO & CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees employed at the Respondent's store presently located at 5807 West 95th Street, Oak Lawn, Illinois, but excluding store managers, guards and supervisors as defined in the Act. i (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 stores at 5807 West 95th Street, Oak Lawn, Illinois, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provid- ed by the Regional Director for Region 13, 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 insure that said notices are not altered, defaced, or covered by any other material. (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. MEMBER WALTHER, dissenting: In view of my dissent from the Board's denial of Respondent's request for review of the Regional of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director's Decision and Direction of Election in the underlying representation proceeding, Case 13-RC- 13942, I would not find a violation of Section 8(a)(5) and (1) in the instant proceeding. 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 1504, Chartered by Retail Clerks International Association, AFL-CIO & CLC, as the exclusive representative of the em- ployees 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 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 understanding in a signed agreement. The bar- gaining unit is: All full-time and regular part-time em- ployees employed at the Respondent's store presently located at 5807 West 95th Street, Oak Lawn, Illinois, but excluding store managers, guards and supervisors as defined in the Act. SAXON PAINT & HOME CARE CENTERS, INC.