Morse Shoe, Inc.

MORSE SHOE, INC. Morse Shoe, Inc. and Retail Clerks Union Local 324, Retail Clerks International Association, AFL- CIO. Case 21-CA-13855 July 28, 1977 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On December 17, 1976, the National Labor Relations Board issued a Decision and Order' in the above-entitled proceeding wherein it found that Respondent Morse Shoe, Inc., had violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union as the exclusive represen- tative of all employees in the appropriate unit; by making a unilateral modification of the collective- bargaining agreement with the Union and by refusing to make payments to the Union's welfare and pension trust funds; and by withdrawing recognition from the Union and repudiating the contract. The Board further ordered that Respondent cease and desist therefrom and take certain affirma- tive action to remedy the unfair labor practices. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board, sua sponte, has decided to reconsider its original Decision and Order herein to the extent set forth below. 2 In our original Decision, we rejected Respondent's defense that it should not be required to bargain with the Union since: (1) it did not independently establish majority status at the time of initial recognition, and (2) the contractual unit limited to employees in its leased shoe department at the Two Guys Huntington Beach, California, store is inappropriate. We there stated: With respect to the other contentions made by Respondent, the Board has held, in light of the Supreme Court's decision in Bryan Manufacturing Co., 5 that an employer may not defend against a refusal-to-bargain allegation on the basis that the original recognition, occurring more than 6 months before charges had been filed in the proceeding raising the issue, was unlawful.6 Any such defense is barred by Section 10(b) of the Act, which, as the Court explained in Bryan, was specifically intended by Congress to stabilize bargaining relationships. For similar reasons we must reject Respondent's argument that the I 227 NLRB 391. 2 All parties were informed of this decision to reconsider the original Decision and Order. 231 NLRB No. 6 previously agreed-upon unit was inappropriate. The record herein shows that Respondent signed the assent agreement almost 10 months before it withdrew recognition from the Union and over a year prior to the time the Union filed the instant charge. Hence, it cannot now attack the Union's majority status among its employees or the appropriateness of the unit. I Local Lodge No. 1424, International Association of Machinists, AFL-CIO [Bryan Manufacturing Co.] v. N.LR B., 362 U.S. 411 (1960). 6 North Bros. Ford Inc., 220 NLRB 1021 (1975), and cases cited therein. In its brief to the Board, Respondent argues that the Union is entitled to no presumption of continu- ing majority status because "the Union initially obtained its representative status without ever demonstrating majority status." It is clear, however, that this defense constitutes an attack on the lawfulness of the initial recognition of the Union. Accordingly, we hereby reaffirm our previous finding that Respondent's defense based on the alleged lack of majority status by the Union is barred by Section 10(b) of the Act. We further indicated in our original Decision that Respondent's defense with respect to the inappropri- ateness of the contractual unit, based on its conten- tion that only a storewide unit consisting of all employees, including those employed in leased departments, at the Two Guys Huntington Beach, California, store is appropriate herein, was also barred by Section 10(b) of the Act. Without regard to the applicability of Section 10(b), however, we find on the basis of the record before us that a separate unit of Respondent's leased shoe department em- ployees is appropriate. Thus, while there are circum- stances indicating that all employees working at the store share a common community of interest in certain respects, there are other significant factors which establish that the employees of Respondent's leased shoe department also have a community of interest separate and distinct from that of the other employees. In this regard, the stipulation of facts of the parties establishes that all employees in the shoe department work under the direct supervision of Respondent's shoe department manager. Respon- dent, through its department manager, is responsible for the hiring and firing of its own employees, and the department manager is solely responsible for issuing work instructions to the shoe department employees. Although Respondent's employees are regularly informed that they are expected to follow the work rules promulgated by Two Guys for its own employees, it is the shoe department manager who is 13 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responsible for any disciplining of Respondent's employees. Furthermore, according to the stipulated record, Respondent's shoe department has its own cash register and its employees do not use Two Guys' timeclocks. The evidence herein also reveals that Respondent does not submit to Two Guys any written information as to the identity of its employ- ees or their terms and conditions of employment. Finally, we note that Respondent recognized a separate unit of shoe department employees when it executed the assent agreement, thereby reaffirming the contract originally entered into by Karl's Shoe Stores, Ltd., the former operator of the leased shoe department, and the Union, which contract provided for a separate unit of employees in the leased shoe department. In light of all the foregoing indicia of separateness, we find that a unit comprised solely of Respondent's shoe department employees constitutes an appropri- ate unit for the purposes of collective bargaining " Esgro Valle,, Inc., 169 NLRB 76 (1968); Bargain Town U.S.A. of Puerto Rico, Inc., 162 NLRB 1145 (1967). within the meaning of Section 9(b) of the Act.3 We therefore find that Respondent's defense based on the inappropriateness of the contractual unit is without merit. In all other respects, we hereby reaffirm our original Decision and Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby reaffirms its Order as contained in its original Decision and Order, issued December 17, 1976, in this proceeding. MEMBER JENKINS, dissenting: In my view, no useful purpose is served by the sua sponle reconsideration of our original Decision and Order herein. That Decision adequately disposes of the issues presented in this case. That Order is extant and requires no reaffirmation. 14