J. C. Penney Co., Inc.

THRIFT DRUG 259 Thrift Drug, a Division of J. C. Penney Company, Inc. and Laborers' International Union of North America, Construction, General Laborers and Material Handlers Local Union No. 1058, AFL-CIO. Case 6-CA-7494 December 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on May 15, 1974, by Laborers' International Union of North America, Construction, General Laborers and Material Handlers Local Union No. 1058, AFL-CIO, herein called the Union, and duly served on Thrift Drug, a Division of J. C. Penney Company, Inc., herein called the Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint on May 30, 1974, 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 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 March 28, 1974, following a Board election in Case 6-RC-6452 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's em- ployees in the unit found appropriate; and that, commencing on or about April 29, 1974, 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 June 1, 1974, Respondent filed its answer to the complaint admitting in part, the alle- gations in the complaint, and asserting three af- firmative defenses. On July 1, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, submitting, in effect, that Respondent is at- tempting to relitigate issues previously determined by the Board in the representation case, and moving that Official notice is taken of the record in the representation proceeding, Case 6-RC-6452, as the term "record" is defined in Secs. 102.68 and 102.69(1) of the Board's Rules and Regulations, Series 8, as amended. See LTVElectrosystems, 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., 1957); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. the Board (1) strike Respondent's affirmative defenses, (2) again find the unit determined in the representation case to be appropriate, (3) find true the allegations of the complaint that Respondent has admitted, and (4) issue an appropriate remedial order. Subsequently, on July 12, 1974, 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 there- after filed a response to Notice To Show Cause, the import of which is discussed below. 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 Respondent bases its opposition to the Motion for Summary Judgment on the absence of a hearing on its objections to the election in the underlying representa- tion case . In support of this contention , Respondent reasserts those objections, to wit : threats of physical violence so permeated the election atmosphere that the requisite laboratory conditions were destroyed; con- tinual challenges of voters by a Board agent created confusion and chaos about the election ; and the Union's offer to waive initiation fees constituted an unlawful financial inducement to employees under the Supreme Court ruling in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 ( 1973). Basically, Re- spondent attempts to show that factual disputes sur- round these contentions which require a hearing to resolve. Our review of the full representation case record indicates that we passed on the merits of Respondent's objections upon Respondent's request for review of the Regional Director's resolution thereof, and the Savair-based contention was raised in Respondent's motion for reconsideration of the Regional Director's disposition of that issue which we treated as a request for review . On that occasion, we found that Respond- ent had raised no substantial issues warranting review, and that the Union's offer to waive fees was proper and within Board precedent, even as modified by the Su- preme Court's decision .2 Respondent offers no newly discovered or previously unavailable evidence to give us cause to reconsider those rulings , hence, under well- settled principles prohibiting relitigation of previously 2 See: Irwindale Division , Lau Industries, a Division of Phillips Industries, Inc., 210 NLRB 182 (1974); Con-Pac, Inc., 210 NLRB 466 (1974). 215 NLRB No. 51 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD litigated issues,' we shall not disturb those determina- tions. With respect to Respondent's central contention that a hearing is required on the issues raised by its objec- tions, a review of Respondent's contentions discloses that its disagreement is with the conclusions drawn by the Regional Director from the undisputed facts. On the basis of those same facts, we found that Respondent has not raised substantial issues warranting review. Im- plicit in such finding and specifically reiterated here is that Respondent has raised no substantial issues war- ranting a hearing. It is well settled that where the essen- tial facts are not in dispute a hearing on objections is not required.' - There being no issues properly litigable in this proceeding,' and Respondent not having presented substantial issues warranting a hearing, the General Counsel's Motion for Summary Judgment is granted.' On the basis of the entire record, the Board makes the following: FINDINGS OF FACT Pennsylvania for sale within the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. 11 THE LABOR ORGANIZATION INVOLVED Laborers' International Union of North America. Construction, General Laborers and Material Han- dlers Local Union No. 1058 , 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 I THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation with its princi- pal offices and its warehouse-distribution center located in Pittsburgh, Pennsylvania, is engaged in the retail sale of drugs, health and beauty aids, and related merchandise. During the past 12 months, Respondent has received gross income valued in excess of $500,000. During the same period, Respondent received goods and materials valued in excess of $50,000 at its Pitts- burgh, Pennsylvania, warehouse-distribution center from points directly outside the Commonwealth of 3 See Pittsburgh Plate Glass Co. v NLR.B., 313 U.S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(t) and 102 69(c) 4 NLRB. v Golden Age Beverage Co, 415 F 2d 26 (C A 5, 1969), Amalgamated Clothing Workers of America v NLR.B, 424 F 2d 818 (C.A D C, 1970), United Steelworkers of America v NL R B, 86 LRRM 2984 (CA 5, 1974) 5 In its answer to the complaint , Respondent denies the appropriateness of the unit, the election results and certification of the Union , and the Union's request and.its refusal to bargain Respondent litigated the unit appropriateness in the representation case and accordingly may not reliti- gate it herein Cherokee Nitrogen Company, 200 NLRB 630 (1972) Review of the record reveals an undisputed revised tally of ballots showing a vote in favor of the Union and the certification of the Union by the Regional Director With regard to the request and refusal of bargain, at- tached to the Motion of Summary Judgment are letters of request by the Union dated April 8 and 17, 1974, and a letter of refusal from Respondent dated April 29, 1974 Respondent offers nothing to controvert the implica- tions of this evidence Accordingly, we deem the allegations concerning a request and refusal to bargain to be admitted and true The May Department Stores Company, 186 NLRB 86 (1970), Carl Simpson Buick, Inc, 161 NLRB 1389 (1966) 6 In view of the result reached herein, we find it unnecessary to rule on the General Counsel's request that the Respondent's affirmative defenses be stricken The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All full-time and regular part-time warehouse employees, including inventory crew employees, schedulers, maintenance employees, the traffic supervisor, machine operators, shippers, receivers, return employees, warehouse inventory em- ployees, accuracy control clerks, order fillers, stockers, cigarette tax machine operators, the jani- tor, the messenger and the burner, employed by the Employer at its Pittsburgh, Pennsylvania, warehouse-distribution center, excluding office clerical employees, order processors, set-up crew managers and guards, professional employees and other supervisors as defined in the Act. 2. The certification On September 7, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Direc- tor for Region 6, designated the Union as their rep- resentative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 28, 1974, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. THRIFT DRUG B. The Request To Bargain and Respondent's Refusal Commencing on or about April 8,. 1974, and at all times thereafter, in particular by letter dated April 17, 1974, the Union has requested the Respondent to bar- gain collectively with it as the exclusive collective-bar- gaining representative of all the employees in the above-described unit. Commencing on or about April 29, 1974, 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 April 29, 1974, 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, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.* r-, 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 operations de- scribed 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, bar- gain collectively with the Union as the exclusive rep- resentative of all employees in the appropriate unit, and, if an understanding is reached, embody such un- derstanding in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com- merce 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 Com- pany, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). 261 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Thrift Drug, a Division of J. C. Penney Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laborers' International Union of North America, Construction, General Laborers and Material Han- dlers Local Union No. 1058, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time warehouse em- ployees, including inventory crew employees, schedul- ers, maintenance employees, the traffic supervisor, ma- chine operators, shippers, receivers, return employees, warehouse inventory employees, accuracy control clerks, order fillers, stockers, cigarette tax machine op- erators, the janitor, the messenger and the burner, em- ployed by the Employer at its Pittsburgh, Pennsyl- vania, warehouse-distribution center, excluding office clerical employees, order processors, set-up crew managers and guards, professional employees and other 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 28, 1974, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective-bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 29, 1974, 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 in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Thrift Drug, a Division of J. C. Penney Company, Inc., Pittsburgh, 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania, its officers, agents, successors, and as- signs, 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 Laborers' International Union of North America, Construction, General Laborers and Material Handlers Local Union No. 1058, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time warehouse employees, including inventory crew employees, schedulers, maintenance employees, the traffic supervisor, machine operators, shippers, receivers, return employees, warehouse inventory em- ployees, accuracy control clerks, order fillers, stockers, cigarette tax machine operators, the jani- tor, the messenger and the burner, employed by the Employer at its Pittsburgh, Pennsylvania, warehouse-distribution center, excluding office clerical employees, order processors, set-up crew managers and guards, professional employees and other 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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 agree- ment. (b) Post at its Pittsburgh, Pennsylvania, warehouse- distribution center copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 6, 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 7 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 " posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Laborers' In- ternational Union of North America, Construc- tion, General Laborers and Material Handlers Lo- cal Union No. 1058, AFL-CIO, as the exclusive representative of the employees in the bargaining t unit described below. WE WILL NOT in any like or related manner, inter- fere 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 under- standing in a signed agreement. The bargaining unit is: All full-time and regular part-time warehouse employees, including inventory crew em- ployees, schedulers, maintenance employees, the traffic supervisor, machine operators, ship- pers, receivers, return employees, warehouse in- ventory employees, accuracy control clerks, or- der fillers, stockers, cigarette tax machine operators, the janitor, the messenger and the burner, employed by the Employer at its Pitts- burgh, Pennsylvania, warehouse-distribution center, excluding office clerical employees, or- der processors, set-up crew managers and guards, professional employees and other super- visors as defined in the Act. THRIFT DRUG, A DIVISION OF J. C. PENNEY COMPANY, INC.