Allied Stores of Michigan, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 252 (N.L.R.B. 1970)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hardy-Herpolsheimer Division of Allied Stores of
Michigan , Inc.; Francis Van Riper d/b/a Frances
Van Riper Jewelry and Watch Repair ; Almo Millin-
ery, Division of Allied Purchasing Corporation;
Wohl Shoe Co . and Retail Store Employees Union,
Local No. 20 , Retail Clerks International Associa-
tion , AFL-CIO. Case 7-CA-7863
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed by Retail Store Employees
Union, Local No. 20, Retail Clerks International
Association, AFL-CIO (hereinafter called the Union),
the Regional Director of the National Labor Relations
Board for Region 7 issued a complaint dated April
17, 1970, alleging that Hardy-Herpolsheimer Division
of Allied Stores of Michigan, Inc. (hereinafter some-
times called the Respondent Hardy-Herpolsheimer);
and Francis Van Riper d/b/a Francis Van Riper
Jewelry and Watch Repair; Almo Millinery, Division
of Allied Purchasing Corporation;and Wohl Shoe Co.
(hereinafter sometimes called, respectively, Respond-
ent Van Riper, Respondent Almo, and Respondent
Wohl and referred to collectively as the Respondents),
had engaged in and were engaging in unfair labor
practices within the meaning of Sections 8(a)(5) and
(1) and 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint,
and notice of hearing before a Trial Examiner were
duly served on Respondents.
With respect to the unfair labor practices the com-
plaint alleges, in substance, that on or about March
9, 1970, pursuant to an election in which a majority
of unit employees cast ballots for the Union, the
said Union was certified by the Board' as the exclusive
bargaining representative of Respondent's employees
in the unit found appropriate; that since on or about
March 19, 1970, the Union has requested, and is
requesting, Respondents to bargain collectively with
it with respect to wages, hours, and other terms
and conditions of employment of employees in the
unit found appropriate; and that since on or about
March 27, 1970, Respondents have refused and are
refusing to recognize or bargain with the Union as
such exclusive bargaining representative. On April
29, 1970, Respondents filed their answer, denying
the commission of the unfair labor practices alleged.
' Decision and Certification of Representative in Case 7-RC-7718
On May 13, 1970, the General Counsel filed with
the National Labor Relations Board in Washington,
D.C., a motion to transfer case to and continue
proceedings before the Board and for judgment on
the pleadings. The General Counsel contends, in effect,
that, considering Respondents' answer, the facts
affirmatively pleaded and admitted, and the facts
established and issues resolved in the representation
proceeding, there are no issues in fact or law requiring
a hearing of Trial Examiner's Decision and recommen-
dations. Therefore, General Counsel requests the
issuance of a Decision and Order finding the violations
as alleged in the Complaint. On May 15, 1970, the
Board issued an order transferring proceedings to
the Board and on the same date a Notice To Show
Cause on or before May 29, 1970, why the General
Counsel's motion for judgment on the pleadings should
not be granted. On June 1, 1970, Respondents filed
their answer in opposition to the General Counsel's
motion for judgment on the pleadings and memoran-
dum in support of said answer. The Charging Party
filed a statement in support of the General Counsel's
motion. Respondents have failed to respond to the
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Judgment on the Pleadings
The record establishes that pursuant to a Decision,
Order, and Direction of Second Election issued by
the Board on December 4, 1968,2 an election was
conducted on March 21, 1969, among employees
in a unit found appropriate and consisting of:
All full-time and regular part-time employees
of Hardy-Herpolsheimer Division of Allied Stores
of Michigan, Inc., at its store located at 315
Western Avenue and its warehouse at 410 Morris
Avenue, Muskegon, Michigan, including all full-
time and regular part-time employees of leased
departments operated by Wohi Shoe Company,
Almo Millinery, Division of Allied Purchasing
Corporation and Francis Van Riper d/b/a/ Fran-
cis Van Riper Jewelry and Watch Repair at
said store; also including selling assistants, assist-
ants to buyers, warehousemen and shuttle van
truck driver; but excluding buyers, all contingent
employees (except contingent employees included
1 173 NLRB No 165
185 NLRB No. 54
HARDY-HERPOLSHEIMER DIV OF ALLIED STORES 253
as regular part-time employees), professional
employees, guards, and all supervisors as defined
in the Act employed by any of the joint Employ-
ers.
The challenged ballots were determinative of the
ultimate outcome of said second election. Thereafter,
on or about August 12, 1969, a Hearing Officer
for Region 7 issued a Hearing Officer's report on
challenged ballots in which he recommended that
certain challenges be overruled and that others be
sustained. On or about August 22, 1969, Respondent
Hardy-Herpolsheimer and the other Respondents, as
well as the Union, filed exceptions to the Hearing
Officer's report. The Acting Regional Director for
Region 7, on or about September 22, 1969, issued
his Supplemental Decision on Challenged Ballots
wherein he ordered that the challenges to the ballots
of 14 individuals be overrulled and that these ballots
be counted and a revised tally of ballots be prepared
along with an appropriate certification reflecting the
ultimate result of the election. The Acting Regional
Director further ordered that the challenge to the
ballots of five other voters be sustained.
On or about October 2, 1969, Respondents filed
with the Board in Washington, D.C., a request for
review of the Acting Regional Director's Supplemental
Decision on Challenged Ballots and, on or about
October 8, 1969, the Union filed its opposition to
the Respondents' request for review and its conditional
request for review of the Acting Regional Director's
Supplemental Decision. On October 23, 1969, the
Board granted Respondents' request for review only
as it related to the disposition of the challenges to
the ballots of employees Caywood and Schroder and
denied it in all other respects. Also the Board denied
the Union's conditional request for review and stated
that it would resolve the issues raised as to the
eligibility of Caywood and Schroder if their ballots
could affect the results as shown by the revised tally
to be prepared by the Regional Director.
On October 27, 1969, a revised tally of ballots
was issued by the Regional Director which showed
that of 184 valid ballots counted, 89 were cast for
and 88 against the Union, and 1 ballot was void.
The challenged ballots of Caywood and Schroder
were therefore determinative of the results of the
election. Thereafter, both parties filed briefs on review.
Hence, on February 20, 1970, the Board issued its
Decision on Review and Direction in which it affirmed
the findings of the Acting Regional Director with
respect to the challenges to the ballots of Caywood
and Schroder. Inasmuch as Caywood's ballot 'could
affect the election results, the Board directed the
Regional Director to open and count her ballot, serve
on the parties a revised tally of ballots, and issue
the appropriate certification. The revised tally of bal-
lots indicated that a majority of employees in the
bargaining unit designated the Union as their statutory
bargaining agent and, on March 9, 1970, the Regional
Director issued a Certification of Representative to
the Union as collective-bargaining agent within the
meaning of Section 9(a) of the Act.'
In its letter dated March 19, 1970, the Union
requested that the point Respondents bargain with
it collectively The Respondents refused this request
on or about March 27, 1970, and the Union filed
the charge on which these proceedings are predicated.
Respondents in both their answer to the complaint
and their answer in opposition to the General Coun-
sel's motion basically contend that the Certification
of Representative issued herein is invalid because
there is no substantial evidence in the record in
support thereof. More particularly, Respondents, by
virtue of their answers to the complaint and the
General Counsel's motion, are attempting to test once
again the validity of the Supplemental Decision of
the Acting Regional Director wherein he disposed
of some 19 challenged ballots involved in the rerun
election. As detailed, supra, the Board has previously
granted review concerning the eligibility of employees
Caywood and Schroder and affirmed the Decision
of the Acting Regional Director in other respects.'
Although the Respondents, in their present posture,
apparently are requesting the right to relitigate the
issues surrounding the Board's previous disposition
of the challenges to four ballots,' they have made
no proffer of newly discovered or previously unavaila-
ble evidence. It is well-settled that the Board has
the requisite power to consider and determine motions
for judgment on the pleadings and that in such pro-
ceedings there is no unqualified right to a hearing
where there are no factual issues presented for resolu-
' The final result of the election as shown by the revised tally is
90 votes for and 88 against the Union
' Notwithstanding the Board 's Decision on Review and Direction,
dated February 20, 1970 , Respondents are still endeavoring to relitigate
issues concerning the voting eligibility of Caywood and Schroder on
the ground that , at best, the Board's Review of these matters was only
perfunctory in this context, Respondents cite Pepsi-Cola Buffalo Bottling
Co, 171 NLRB No 28, remanded 409 F 2d 676, cert denied 396
U S 904 Citation of Pepsi-Cola is inapposite here because the Board
has reexamined the entire record in the underlying representation proceed-
ing (including the Acting Regional Director 's Supplemental Decision)
as a corollary of its earlier grant of review Accord The Herald Company,
181 NLRB No 62 As to the Regional Director 's rulings on Norris
and Bruck, which Respondents also seek to relitigate , we have independent-
ly reviewed the record in Case 7-RC-7718 and find that the Regional
Director's conclusions as to them were correct
' In view of the ambiguity inherent in Respondent 's answer in opposition
to the General Counsel's motion for judgment on the pleadings, it is
not entirely clear whether Respondents are demanding the right to relitigate
the matters in dispute or are requesting that the Board merely reconsider
its previous Decision on Review and Direction
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. Accordingly, based on our present independent
review of the record and our Decision on Review
in Case 7-RC-7718, we conclude that Respondents'
contention that the Acting Regional Director erred
in his Supplemental Decision on Challenged Ballots
is lacking in merit and raises no material issue affecting
the validity of the outstanding certification.'
Inasmuch as all material issues have been decided
by the Board, or are admitted by the Respondents,
there are no matters requiring a hearing or reconsider-
ation by the Board. Consequently, the General Coun-
sel's motion for judgment on the pleadings is granted.
On the basis of the record before it, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Hardy-Herpolsheimer and its licensees
Respondent Van Riper, Respondent Almo, and
Respondent Wohl are, and at all times material herein
have been, engaged in a single, integrated enterprise
in the operation of a retail department store, all
conducting their respective businesses at Respondent
Hardy-Herpolsheimer's Muskegon store without dis-
tinctive signs or other indications of separate identity
from Hardy-Herpolsheimer, with common advertising
and credit facilities and with personnel and labor
relations policies being established by Respondent
Hardy-Herpolsheimer and applicable to all the
employees of each of the above-named Respondents,
who work under similar working conditions, including
hours and employee benefits. During the year ended
December 31, 1969, which period is representative
of its business operations during all material times,
Respondent Hardy-Herpolsheimer, in the course and
conduct of its business operations, sold and distributed
products, the gross value of which exceeded $1 million
and purchased and caused to be transported and
delivered to its Muskegon store, clothing and other
goods and materials valued in excess of $100,000,
of which goods and materials valued in excess of
$50,000 were purchased, transported, and delivered
to its store in Muskegon, Michigan, directly from
points located outside the State of Michigan.
Upon the basis of the foregoing, we find that
Respondents' business operations satisfy the Board's
jurisdictional standard governing retail department
stores and that the joint Respondent constitutes an
employer engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
' See, e g , Union Carbide Caribe, Inc, 173 NLRB No 131, Provincial
House, Inc, 182 NLRB No 45
II. THE LABOR ORGANIZATION INVOLVED
Respondents admit and we find that Retail Store
Employees Union, Local No. 20, Retail Clerks Inter-
national Association , AFL-CIO, is a labor organiza-
tion 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 Respondents consti-
tute an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time employees
of Hardy-Herpolsheimer Division of Allied Stores
of Michigan, Inc., at its store located at 315
Western Avenue and its warehouse at 410 Morris
Avenue, Muskegon, Michigan, including all full-
time and regular part-time employees of leased
departments operated by Wohl Shoe Company,
Almo Millinery Division of Allied Purchasing
Corparation and Francis Van Riper d/b/a/ Fran-
cis Van Riper Jewelry and Watch Repair at
said store; also including selling assistants, assist-
ants to buyers, warehousemen, and shuttle van
truck driver; but excluding buyers, all contingent
employees (except contingent employees included
as regular part-time employees), professional
employees, guards, and all supervisors as defined
in the Act employed by any of the joint Employ-
ers.
2. The certification
In a secret ballot election on March 21, 1969,
conducted under the supervision of the Regional
Director for Region 7, a majority of employees of
the Respondents in said bargaining unit designated
the Union as their representative for the purpose
of collective bargaining with the Respondents. On
March 9, 1970, the said Regional Director certified
the Union as the exclusive bargaining representative
of the employees comprising said unit, and the Union
continues to be such representative.
B. The Request to Bargain and Respondents ' Refusal
Commencing on or about March 19, 1970, and
continuing to date, the Union has requested and
HARDY- HERPOLSHEiMER DIV OF ALLIED STORES
is requesting the Respondents to bargain collectively
with it as the exclusive bargaining representative of
all the employees in the above-described unit. Since
on or about March 27, 1970, and continuing to the
present, Respondents have refused, and continue to
refuse, to engage in collective bargaining with the
Union as the exclusive bargaining representative of
all the employees in said unit.
We hereby find that the Union was duly certified
by the Board as the collective-bargaining representa-
tive of the employees of the Respondents in an
appropriate unit and that the Union at all times
since March 9, 1970, has been the exclusive collective-
bargaining representative of all the employees in the
above-described unit, within the meaning of Section
9(a) of the Act. We further find that the Respondents
have, since on or about March 27, 1970, refused
to bargain collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate unit and that, by such refusal, the
Respondents have engaged in and are 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 acts of the Respondents set forth in section
III, above, occurring in connection with their opera-
tions as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing
commerce and its free flow.
V. THE REMEDY
Having found that the Respondents have engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that they
cease and desist therefrom and, upon request, bargain
collectively with the Union as the exclusive representa-
tive of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement. Under the circum-
stances it is reasonable for us to provide that the
subject employees will be accorded the services of
their elected bargaining agent for the full period
allowed by law. Consequently, we shall construe the
initial year of certification as beginning on the date
the Respondents commence to bargain in good faith
with the Union as the recognized bargaining agent
' See Riverside Press Inc, 169 NLRB No 107, enfd 415 F 2d 281
(C A 5)
255
in the appropriate unit. See Mar-Jac Poultry Company,
Inc., 136 NLRB 785; Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d
600 (C A 5), cert. denied 379 U.S. 817, Burnett
Construction Company, 149 NLRB 1419, 1421 enfd.
350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. Hardy-Herpolsheimer Division of Allied Stores
of Michigan, Inc ; Francis Van Riper d/b/a/ Francis
Van Riper Jewelry and Watch Repair; Almo Millinery,
Division of Allied Purchasing Corporation; Wohl Shoe
Co. are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Retail Store Employees Union, Local No. 20,
Retail Clerks International Association, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act
3. All full-time and regular part-time employees
of Hardy-Herpolsheimer Division of Allied Stores
of Michigan, Inc , at its store located at 315 Western
Avenue and its warehouse at 410 Morris Avenue,
Muskegon, Michigan, including all full-time and regu-
lar part-time employees of leased departments operat-
ed by Wohl Shoe Co, Almo Millinery, Division of
Allied Purchasing Corporation, and Francis Van Riper
d/b/a Francis Van Riper Jewelry and Watch Repair
at said store; also including selling assistants, assistants
to buyers, warehousemen, and shuttle van truck driver;
but excluding buyers, all contingent employees (except
contingent employees included as regular part-time
employees), professional employees, guards, and all
supervisors as defined in the Act employed by any
of the joint Employers, constitute a unit appropriate
for purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since March 9, 1970, the above-named labor
organization has been and is the certified and exclusive
representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about March 27, 1970, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclusive
representative of all of Respondents' employees in
the aforesaid appropriate unit, Respondents have
engaged in and are, engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondents
have interfered with, restrained, and coerced, and are
interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed
them in Section 7 of the Act and have thereby engaged
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and are engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act
7. The above-described unfair labor practices are
unfair 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 Rela-
tions Board hereby orders that the Respondents,
Hardy-Herpolsheimer Division of Allied Stores of
Michigan, Inc.; Francis Van Riper d/b/a Francis
Van Riper Jewelry and Watch Repair; Almo Millinery,
Division of Allied Purchasing Corporation; Wohl Shoe
Co., Muskegon, Michigan, their officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning the
rates of pay, wages, hours, and other terms and
conditions of employment with Retail Store Employees
Union, Local No. 20, Retail Clerks International
Association, AFL-CIO, as the exclusive bargaining
representative of their employees in the following
appropriate unit.
All full time and regular part-time employees
of Hardy-Herpolsheimer Division of Allied Stores
of Michigan, Inc., at its store located at 315
Western Avenue and its warehouse at 410 Morris
Avenue, Muskegon, Michigan, including all full-
time and regular part-time employees of leased
departments operated by Wohl Shoe Company,
Almo Millinery Division of Allied Purchasing
Corporation and Francis Van Riper d/b/a Fran-
cis Van Riper Jewelry and Watch Repair at
said store; also including selling assistants, assist-
ants to buyers, warehousemen, and shuttle van
truck driver; but excluding buyers, all contingent
employees (except contingent employees included
as regular part-time employees), professional
employees, guards, and all supervisors as defined
in the Act employed by any of the point Employ-
ers.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by 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 understand-
ing is reached, embody such understanding in a signed
agreement
(b) Post at their Muskegon, Michigan, place of
business, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms provided
by the Regional Director for Region 7, after being
duly signed by the Respondents' representative, shall
be posted by the Respondents immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify said Regional Director for Region 7,
in writing, within 10 days from the date of this
Decision and Order, what steps the Respondents have
taken to comply herewith.
' 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 and
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
with Retail Store Employees Union, Local No.
20, Retail Clerks International Association,
AFL-CIO, as the exclusive representative of the
employees 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 representa-
tive of all our 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 bargaining unit is:
All full-time and regular part-time
employees of Hardy-Herpolsheimer Division
of Allied Stores of Michigan, Inc., at its
store located at 315 Western Avenue and its
warehouse at 410 Morris Avenue,
Muskegon, Michigan, including all full-time
and regular part-time employees of leased
departments operated by Wohl Shoe Co ,
HARDY-HERPOLSHEIMER DIV OF ALLIED STORES
Almo 'Millinery, Division of Allied
Purchasing Corporation, and Francis Van
Riper d/b/a Francis Van Riper Jewelry and
Watch Repair at said store; also including
selling assistants, assistants to buyers,
warehousemen, and shuttle van truck driver;
but excluding buyers, all contingent
employees (except contingent employees
included as regular part-time employees),
professional employees, guards, and all
supervisors as defined in the Act employed
by any of the joint Employers.
HERPOLSHEIMER
DIVISION OF ALLIED
STORES OF MICHIGAN,
INC.; FRANCIS VAN
RIPER d /b/a FRANCIS
VAN RIPER JEWELRY
AND WATCH REPAIR;
ALMO MILLINERY,
DIVISION OF ALLIED
PURCHASING CORPORATION;
WOHL SHOE CO.
(Employer)
Dated By
(Representative)
(Title)
257
This is an official notice and must not be defaced
by anyone.
This Notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or
compliance with its provisions, may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
3'13-226-3200.