B. Siegel Co.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 776 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Siegel Company and Retail Store Employees
Union, Local 876, United Food and Commercial
Workers International Union, AFL-CIO-CLC.
Cases 7-CA-17662 and 7-CA-17663
July 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI10.O
Upon charges filed April 15, 1980, by Retail
Store Employees Union, Local 876, United Food
and Commercial Workers International Union,
AFL-CIO-CLC, herein called the Union, and duly
served on B. Siegel Company, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 7, issued an order consolidating cases
and complaint on April 25, 1980, against Respond-
ent, 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 proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 14,
1980, following Board elections in Cases 7-RC-
15464 and 7-RC-15494 the Union was duly certi-
fied as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the units
found appropriate;' and that, commencing on or
about March 28, 1980, 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 April 30, 1980, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On May 21, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment, submitting, in effect, that Re-
spondent is endeavoring to relitigate Cases 7-RC-
15464 and 7-RC-15494 in this proceeding, and that
Respondent does not average any newly discov-
ered or previously unavailable evidence or circum-
i Official notice is laken of the record in the represlenltaionl proceed-
ing. Cases 7 RC 15404 and 7 RC-15494, a, the term "record" is defined
in Se,. 102.68 and 102 69 (g) iof the Board's Rules and Regulationls, Series
8, as amended See L ' Elrrectrrovy 1i(' .. 0Ihh NIRBI 938 (19i 7), enfd
388 F2d 683 (41h Cir 1968): Goldcr .4g( flvcrugr Co.. 167 NlRB IS1
(1967). enfd 415 FI2d 26 (th Cir 19h9): IltertYre' (Co. P cwello. 269
F Supp 573 (I)C Va 1967); /lolurh C'orp. 164 Nl.RI 178 (1'67), cnfd
397 F 2d 91 (7lh Cir 19hg); Sec Q(d) of the NL.RA, a. .aneiidcd
250 NLRB No. 112
stances which were not previously considered by
the Board. He therefore moved that the Motion for
Summary Judgment be granted and that the Board
find that Respondent violated Section 8(a)(5) and
(1) of the Act. Subsequently, on May 23, 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 Summary Judg-
ment should not be granted. Respondent 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, Respondent in
effect attacks the certification of the Union as the
bargaining representative of the employees in the
units found appropriate by asserting that the units
found appropriate by the Board are inappropriate
and that the Board made erroneous findings of fact
and law concerning objections to conduct of the
election and the voting eligibility of one employee.
Our review of the record, including that in Cases
7-RC-15464 and 7-RC-15494, shows that, follow-
ing a hearing in that representation proceeding, the
Regional Director for Region 7 issued a Decision
and Direction of Election in which he ordered
elections among the employees in the units he
found appropriate. Subsequently, following a hear-
ing on objections to the elections and a challenged
ballot, the Regional Director issued his Second
Supplemental Decision and Certification of Repre-
sentative in which he certified the Union as the
collective-bargaining representative of the employ-
ees in the units found appropriate. Thereafter, the
Board denied Respondent's request for review of
the Regional Director's Second Supplemental De-
cision. It thus appears that Respondent's conten-
tions were considered by the Board and rejected in
that proceeding and, therefore, may not be recon-
sidered here.
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. '
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
2 S tt Prrulrrg I'l (Il, (', \ 1 R l . 313 L S 146. Ih2 I 1941):
Rule, andit Rcgtulallon, oft the IBoa.rd. Sc.s 10)2 67(f) aird 102 6 )(c)
776
II Sit(iEll[ C()OMPAN
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
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
1. THE BUSINESS OF RESPONDENT
Respondent B. Siegel Company, with an office
and place of business in Detroit, Michigan, and
stores in Detroit and Dearborn, Michigan, is en-
gaged in the retail sale of women's apparel and re-
lated products. In the course and conduct of its
business operations during the calendar year ending
December 31, 1979, it derived gross revenues in
excess of $500,000, and purchased and received at
its Michigan stores goods and materials valued in
excess of $50,000 directly from points outside the
State of Michigan.
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
Retail Store Employees Union, Local 876,
United Food and Commercial Workers Internation-
al Union, AFL-CIO-CLC, 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
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time selling and
non-selling employees, including employees of
licensed departments, department managers
and office clerical employees, employed by the
Respondent at its store located at 1075 Wood-
ward Avenue, Detroit, Michigan; but exclud-
ing store managers, assistant store managers,
guards and supervisors as defined in the Act.
All full-time and regular part-time selling and
non-selling employees, including employees of
licensed departments, department managers
and office clerical employees, employed by the
Respondent at its store located at 23400 Michi-
gan Avenue, Dearborn, Michigan; but exclud-
ing store managers, assistant store managers,
guards and supervisors as defined in the Act.
2. The certification
On September 13, 1979, a majority of the em-
ployees of Respondent in said units, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 7, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on February
14, 1980, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 24, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described units. Com-
mencing on or about March 28, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said units.
Accordingly, we find that Respondent has, since
March 28, 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 l ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, 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.
777
I)E: CISI()NS OF NATIONAL I ABOR RELAT IONS BOARD
v. THI. RI MI )Y
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 units, and, if an understanding is
reached, embody such understanding in a signed
agreement.
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
Union as the recognized bargaining representative
in the appropriate units. See Mar-Jac Poultry Com-
pany, Inc., 136 NLRB 785 (1962); Commerce Com-
pany d/b/a Lamar Hotel, 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. B. Siegel Company is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Store Employees Union, Local 876,
United Food and Commercial Workers Internation-
al Union, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following constitute units appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part time selling and
non-selling employees, including employees of
licensed departments, department managers
and office clerical employees, employed by the
Respondent at its store located at 1075 Wood-
ward Avenue, Detroit, Michigan; but exclud-
ing store managers, assistant store managers,
guards and supervisors as defined in the Act.
All full-time and regular part-time selling and
non-selling employees, including employees of
licensed departments, department managers
and office clerical employees, employed by the
Respondent at its store located at 23400 Michi-
gan Avenue, Dearborn, Michigan; but exclud-
ing store managers, assistant store managers,
guards and supervisors as defined in the Act.
4. Since February 14, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate units for the purpose of col-
lective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about March 28, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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)(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
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
B. Siegel Company, Detroit, Michigan, and Dear-
born, Michigan, 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 Store Em-
ployees Union, Local 876, United Food and Com-
mercial Workers International Union, AFL-CIO-
CLC, as the exclusive bargaining representative of
its employees in the following appropriate units:
All full time and regular part-time selling and
non-selling employees, including employees of
licensed departments, department managers
and office clerical employees, employed by the
Respondent at its store located at 1075 Wood-
ward Avenue, Detroit, Michigan; but exclud-
ing store managers, assistant store managers,
guards and supervisors as defined in the Act.
All full time and regular part time selling and
non-selling employees, including employees of
licensed departments, department managers
and office clerical employees, employed by the
Respondent at its store located at 23400 Michi-
gan Avenue, Dearborn, Michigan; but exclud-
778
B SIEGF(I CO(MI'ANY
ing store managers. assistant store managers,
guards and supervisors 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
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facilities at 23400 Michigan
Avenue, Dearborn, Michigan, and 1075 Woodward
Avenue, Detroit, Michigan, copies of the attached
notice marked "Appendix." 3 Copies of said notice,
on forms provided by the Regional Director for
Region 7, 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
* In the event that this Order is enforced by a Judgment of a United
States Courl of Appeals. the ,ords 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 Relation, Board"
APPENDIX
NoTiciF To EMPLOY EI-s
POSTED BY ORI)DER OF THE
NAlIONAI. LABOR REI.ATIONS 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 Store Employees Union, AFL-
CIO-CLC, Local 876, United Food and Com-
mercial Workers International Union, as the
exclusive representative of the employees 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 gua-- -'toed
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 an understanding
is reached, embody such understanding in a
signed agreement. The bargaining units are:
All full time and regular part time selling
and non-selling employees, including em-
ployees of licensed departments. department
managers and office clerical employees, em-
ployed by the Employer at its store located
at 1075 Woodward Avenue, Detroit, Michi-
gan; but excluding store managers, assistant
store managers, guards and supervisors as
defined in the Act.
All full time and regular part time selling
and non-selling employees, including em-
ployees of licensed departments, department
managers and office clerical employees, em-
ployed by the Employer at its store located
at 23400 Michigan Avenue, Dearborn,
Michigan; but excluding store managers, as-
sistant store managers, guards and supervi-
sors as defined in the Act.
B. SIEGEL COMPANY
774