J. W. Mays, Inc.

J. W. MAYS, INC. J. W. Mays, Inc. and Independent-Union of Security Officers. Case 29-CA-8019 December 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on May 19, 1980, by Inde- pendent-Union of Security Officers, herein called the Union, and duly served on J. W. Mays, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 29, issued a complaint on June 24, 1980, 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 7, 1980, following Board elections in Cases 29-RC-4856 and 29-RC-4873, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the units found ap- propriate;' and that, commencing on or about May 19, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On July 3, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On September 18, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 9, 1980, 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. In a letter submitted to the Board on October 9, 1980, the Union "joined" in the General Counsel's motion and requested certain extraordinary relief. Re- O' fficial notice is taken of the record in the reprecentatilon proceed- ing, Cases 29-RC-4856, 29-RC-4873, and 29-RC-4843.1, as the term "record" i defined in Ses 102 68 and 102 h6(g) of the Bolard's Rules and Regulations, Series 8, as amended. See 1.7I Elreor sier m. Inc., I66 NLRB 938 (1967), enfd 388 F 2d 683 (4th Cir 1968); (;olden Age Bever- age Co., 167 NlRIB 151 (1967), enfd 415 F2d 26 (5th Cir 1969); Inter- type 'o. v Pene/o, 29 F Supp 573 (DC Va 1967): obllert Corp. I64 NI.RI 378 (1967), nfd 397 F2d 91 (7th Cir 1968); Sec 9(d) of the NLRA, as amended spondent 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 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 response to the Notice To Show Cause, Respondent in sub- stance contends that the certification is invalid for the reasons stated in its request for review of the Regional Director's Decision and Direction of Election. A review of the record in the representation pro- ceeding, Cases 29-RC-4856, 29-RC-4873, and 29- RC-4843, disclosed that on March 21, 1980, after a hearing in which all parties participated, the Re- gional Director issued a Decision and Direction of Election. On April 4, 1980, Respondent filed a timely request for review of the Regional Direc- tor's Decision in substance alleging that the Re- gional Director erred when he found that the Union is a labor organization within the meaning of Section 2(5) of the Act, and is not directly or indi- rectly affiliated with a union which admits non- guards to membership; that the single-store unit is appropriate; and that the sergeants and corporals are not supervisors within the meaning of the Act. The Board, on April 21, 1980, by telegram, denied Respondent's request for review. An election was held on April 24, 1980; in Cases 29-RC-4856 and 29-RC-4873 the Union won; in Case 29-RC-4843 the Union lost. On May 7, 1980, the Regional Di- rector certified the Union as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the units found appropriate in Cases 29- RC-4856 and 29-RC-4873. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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 Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 2 SeeT PTtt,urgh Phit, (lus o .% .L.R.B. 113 U S 146. I62 (1941); Rules and Regulations of the Board, Sees In2 67(f) and 102 69(c) 253 NLRB No. 93 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. TIHI BUSINESS OF RESPONDIENT J. W. Mays, Inc., a New York corporation, has its principal office and place of business in Brook- lyn, New York, and various other places of busi- ness in the State of New York, including Manhat- tan and Woodmere, where it is engaged in the retail sale of consumer goods and related products. During a representative 12-month period, Respond- ent, in the course and conduct of its business oper- ations, purchased and received at its places of busi- ness products valued in excess of $50,000 directly from points located outside the State of New York and, during the same period of time, Respondent received from its operations gross receipts valued in excess of $500,000. We find, on the basis of the foregoing, that Re- spondent 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 Independent-Union of Security Officers is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR I.ABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute units appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: Voting Unit A: All full time and regular part time security guards employed by the Employ- er at its Manhattan location, but excluding all other employees, office clerical employees, captains, lieutenants and supervisors as defined in the Act. Voting Unit B: All full time and regular part time security guards employed by the Employ- er at its Woodmere, New York location, but excluding all other employees, office clerical employees, captains, lieutenants and supervi- sors as defined in the Act. 2. The certification On April 24, 1980, a majority of the employees of Respondent in said units, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 29, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said units on May 7, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about May 9, 1980, and at all times thereafter, the Union has requested Respond- ent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described units. Commencing on or about May 19, 1980, and continuing at all times thereafter to date, 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 units. Accordingly, we find that Respondent has, since May 19, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate units, 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 oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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 718 W MAYS, INC the appropriate unit, and, if understandings are reached, embody such understandings in signed agreements. 3 In order to insure that the employees in the ap- propriate units will be accorded the services of their selected bargaining agent for the period pro- vided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Com- merce Company d/b/a Lamar lHotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. J. W. Mays, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Independent-Union of Security Officers is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent con- stitute units appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: Voting Unit A: All full time and regular part time security guards employed by the Employ- er at its Manhattan location, but excluding all other employees, office clerical employees, captains, lieutenants and supervisors as defined in the Act. Voting Unit B: All full time and regular part time security guards employed by the Employ- er at its Woodmere, New York location, but excluding all other employees, office clerical employees, captains, lieutenants and supervi- sors as defined in the Act. 4. Since May 7, 1980, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate units for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 19, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive 3 The Union requests that the Board additionally provide extraordinary remedial relief by ordering Respondent to apply any wages agreed to in any subsequent agreement reached retroactively to the date of certifica- tion, and bh awarding the Union its costs in this proceeding We deny this request because the circumstances here do not warrant a departure from the usual remedy of a prospectlive bargaining order, and the Re- spondent's defenses are not frivolous See lulah Manufacluring Company. 236 NLRB 289 (1978) bargaining representative of all the employees of Respondent in the appropriate units, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair l'Ibor 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 Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, J. W. Mays, Inc., Manhattan and Woodmere, New York, 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 Independent-Union of Security Officers as the exclusive bargaining representative of its employees in the following ap- propriate units: Voting Unit A: All full time and regular part time security guards employed by the Employ- er at its Manhattan location, but excluding all other employees, office clerical employees, captains, lieutenants and supervisors as defined in the Act. Voting Unit B: All full time and regular part time security guards employed by the Employ- er at its Woodmere, New York location, but excluding all other employees, office clerical employees, captains, lieutenants and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 units with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD understandings are reached, embody such under- standings in signed agreements. (b) Post at its Manhattan and Woodmere, New York, facilities copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 4 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE 10 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 Independent-Union of Security Officers as the exclusive representative of the employ- ees in the bargaining units described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining units described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if understandings are reached, embody such understandings in signed agreement. The bargaining units are: Voting Unit A: All full time and regular part time security guards employed by us at our Manhattan location, but excluding all other employees, office clerical employees, captains, lieutenants and supervisors as de- fined in the Act. Voting Unit B: All full time and regular part time security guards employed by us at our Woodmere, New York location, but ex- cluding all other employees, office clerical employees, captains, lieutenants and supervi- sors as defined in the Act. J. W. MAYS, INC. 720