Allied Stores of Ohio, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1971

187 N.L.R.B. 873 (N.L.R.B. 1971)

ALLIED STORES OF OHIO, INC.
Allied Stores of Ohio, Inc ., and Retail Clerks Interna-
tional Association , Local No. 698 , AFL-CIO. Case
8-CA-6043
January 15, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
Upon a charge filed on September 21, 1970, by
Retail Clerks International Association, Local No.
698, AFL-CIO, herein called the Union, and duly
served on Allied Stores of Ohio, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 8, issued a complaint on September 30, 1970,
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 a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 6, 1970,
following a Board election in Case 8-RC-7156 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; i and that, commencing
on or about September 17, 1970, 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 October 12, 1970, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On October 27, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 4,
1970, 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.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
i Official notice is taken of the record in the representation proceeding,
Case 8-RC-7156 as the term "record" is defined in Secs 102 68 and
102 69(f) of the Board 's Rules and Regulations , Series 8, as amended See
LTV Electrosystents, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello,
269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397
873
powers in connection with this case 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, the Respondent
denies the appropriateness of the unit and the validity
of the underlying certification. Since the certification
is based upon the election which, according to the
Respondent, was not conducted according to applica-
ble Board and legal requisites , the answer further
denies the legal conclusion that it violated the Act. All
other allegations of the complaint, including those
concerning the request and refusal to bargain, are
admitted.
In its response to the Notice To Show Cause the
Respondent contends that (1) the full Board should
review the unit determination made in the Decision
and Direction of Election in Case 8-RC-7156 (175
NLRB No. 162) issued May 13, 1969, in the light of
subsequent Board and court decisions , and of the
Union's picketing after the certification of July 6,
1970; (2) oral argument before the full Board should
be granted to consider the propriety of directing a
second election on November 6, 1969, 5 months after
the first election, without an investigation to deter-
mine whether or not the Union's misconduct, which
caused the first election to be set aside, had been
sufficiently dissipated to warrant conducting a second
election; (3) alleged Board irregularities in connection
with the holding of the second election destroyed
laboratory conditions for holding a free election and
therefore invalidated the certification based on that
election; and (4) the Regional Director improperly
made exparte credibility resolutions in recommending
the overruling of the Respondent's objections and the
Board improperly relied thereon in adopting the
Regional Director's findings and recommendations.
With respect to the Respondent's first contention, it
is to be noted that, in accord with Board precedent,2
more than one unit may be appropriate among
employees of a particular employer and the Board's
choice of a unit involves of necessity a large measure
of informed judgment. We have considered the recent
Board and court decisions cited by the Respondent3
as well as the Union's alleged picketing aimed at
organizing another store which the Respondent
contends is an integral part of its total operations and
we have concluded that they do not make inappropri-
F 2d 91 (C A 7, 1968), Sec. 9(d) of the NLRB
2 Haag Drug C o m p a n y , I n c o r p o r a t e d , 169 NLRB No I1 1
3 U-Tote-Em Grocery Company, 185 NLRB No 6; N.L.R.B. v.
Pinkerton, Incorporated, 428 F.2d 479 (C.A 6), and Local 1325, Retail
Clerks [Adams Drug Co, Incorporated], v NL.R. B. 414 F2d 1194
(CADC)
187 NLRB No. 125
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate the single store unit heretofore found appropriate
in Case 8-RC-7156. Accordingly, we reaffirm our
prior unit determination.
The Respondent's second contention dealing with
the propriety of conducting the second election
without first investigating the effects of the conduct
causing the first election to be set aside was also raised
in the Respondent's objections. In his Report on
Objections dated February 8, 1970, the Regional
Director treated with this contention and concluded
that the Union's conduct prior to the first election
need not be considered. Nevertheless, the Regional
Director also specifically found, on the basis of his
investigation, that during the 5 months' lapse between
the first and second elections, the effects of the
Union's misconduct prior to the first election had
been dissipated before the second election. He further
finds that the Union's organizational activities after
the first election did not warrant setting the election
aside. The Respondent again raised this question
before the Board in its exceptions to the Regional
Director's report. The Board considered this matter in
its Second Supplemental Decision and Certification
of Representative issued July 6, 1970, in which it
adopted the Regional Director's findings and recom-
mendations and certified the Union. In these circum-
stances this contention of the Respondent is without
merit, and the Board denies the request for oral
argument before the full Board.
As to the alleged irregularities in connection with
the holding of the second election, this issue too was
raised in the Respondent's objections. The Respon-
dent's contention is based upon the Regional Direc-
tor's postponing action indefinitely in the second
election after the Respondent filed the unfair labor
practice charge against the Union in Case 8-CB-1433
and, 4 days later, his rescheduling the election with
direction that the ballots be impounded pending
disposition of the unfair labor practice charge. In his
report, the Regional Director treated specifically with
this contention and overruled the objections based
thereon. As indicated above, the Board in its Second
Supplemental Decision adopted the Regional Direc-
tor's findings and recommendations overruling the
objections. We reaffirm that Decision.
Finally, the Respondent contends that the Board
improperly overruled Objections 1, 2, and 4 related to
the Union's conduct prior to the second election
because of the Regional Director's alleged ex parte
credibility resolutions which entailed rejection of
conflicting testimony of Respondent's supervisory
employees. The Board also considered this matter in
its Second Supplemental Decision. It specifically
found it unnecessary to resolve the credibility of the
evidence presented to the Regional Director concern-
ing Objections 1, 2, and 4 as the Respondent
presented no evidence of harassment or intimidation,
or of derogatory statements concerning a supervisory
or managerial personnel. Since the Respondent thus
failed to establish a prima facie case, there was no need
to resolve credibility issues, and no issue in this
connection which would require a hearing.
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.4
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
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
I. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation, with principal
office and place of business at Akron, Ohio, is, and
has been at all material times herein, engaged in the
operation of five retail department stores, included
among which is a store located at 225 South Main
Street, Akron, Ohio, and known as "Polsky's."
Annually, the Respondent sells and distributes from
"Polsky's" products whose gross value exceeds
$500,000. Annually, the Respondent receives goods
valued in excess of $50,000 directly from outside the
State of Ohio.
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 International Association , Local No.
4 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(f) and 102 69(c)
ALLIED STORES OF OHIO, INC.
698, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. 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 regular selling and nonselling employees of the
Employer's Akron, Ohio, store and service build-
ing, including employees of Selegman & Latz of
Akron, Inc., Joseph Cirino, and Poly-Foto, and all
qualified "Status three" employees, but excluding
professional employees, casual employees, tempo-
rary employees, seasonal employees, guards,
confidential employees, supervisors as defined in
the Act and employees represented by other labor
organizations.
2. The certification
On November 6, 1969, 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 8 designated the Union as their
representative for the purpose of collective bargaining
representative of the employees in said unit on July 6,
1970, 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 July 8, 1970, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about September 17, 1970, 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
September 17, 1970, 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
875
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
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 com-
merce 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative 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).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Allied Stores of Ohio , Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks International Association, Local
No. 698, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All regular selling and nonselling employees of
the Employer 's Akron, Ohio, store and service
building , including employees of Selegman & Latz of
Akron , Inc., Joseph Cirino , and Poly-Foto , and all
qualified "Status three" employees, but excluding
professional employees, casual employees , temporary
employees, seasonal employees, guards, confidential
employees, supervisors as defined by the Act, and
employees represented by other labor organizations
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since July 6, 1970 , the above-named labor
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 September 17, 1970,
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Allied Stores of Ohio, Inc., 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 International
Association, Local No. 698, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All regular selling and nonselling employees of the
Employer's Akron, Ohio, store and service build-
ing, including employees of Selegman & Latz of
Akron, Inc., Joseph Cirino, and Poly-Foto, and all
qualified "Status three" employees, but excluding
professional employees, casual employees, tempo-
rary employees, seasonal employees, guards,
confidential employees, supervisors as defined by
the Act, and employees represented by other labor
organizations.
(b) In any like or related manner interfering with,
restraining , or coercing employees in 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Akron, Ohio, store copies of the
attached notice marked "Appendix."5 Copies of said
notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respondent's
representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees 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 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
S 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals enforcing
an 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
concerning rates of pay , wages , hours , and other
terms and conditions of employment with Retail
Clerks International Association , Local No. 698,
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 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 regular selling and nonselling employees
of the Employer 's Akron, Ohio , store and
service building, including employees of
Selegman & Latz of Akron, Inc., Joseph
Cirino , and Poly-Foto , and all qualified
"Status three" employees , but excluding
professional employees , casual employees,
temporary employees , seasonal employees,
guards , confidential employees , supervisors
ALLIED STORES OF OHIO, INC. 877
as defined by the Act, and employees This is an official notice and must not be defaced by
represented by other labor organizations. anyone.
ALLIED STORES OF OHIO,
This notice must remain posted for 60 consecutive
INC.
days from the date of posting and must not be altered,
(Employer) defaced, or covered by any other material.
Any questions concerning this notice or compliance
Dated By with its provisions may be directed to the Board's
(Representative) (Title) Office, 1695 Federal Office Building, 1240 East Ninth
Street, Cleveland, Ohio 44199, Telephone
216-522-3715.