Clark's Discount Department Store

National Labor Relations Board - Board Decisions

Apr 11, 1969

175 N.L.R.B. 337 (N.L.R.B. 1969)

M. N. LANDAU STORES, INC.
M. N. Landau Stores, Inc., d/b/a Clark's Discount
Department Store and Retail Clerks Union Local
No. 1552, Retail Clerks International Association,
AFL-CIO. Case 9-CA-4683
April 11, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 10, 1968, Trial Examiner Charles
W. Schneider issued his Decision in the
above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision, together with a supporting brief.
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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, brief, and
entire record in the proceeding, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, M. N. Landau Stores, Inc.,
d/b/a Clark's Discount Department Store,
Springfield, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING'
CHARLES W. SCHNEIDER, Trial Examiner. On August
4, 1967, an election was conducted under the supervision
'Administrative or official notice is taken of the record in the
representation proceeding, Case 9-RC-7146, as the term "record" is
defined in Section 102 68 and 102 69(f) of the Board's Rules (Rules and
Regulations and Statements of Procedure, National Labor Relations
Board, Series 8 as revised January 1, 1965) See LTV Electrosystems, Inc .
166 NLRB No 81, enfd 388 F 2d 683 (CA 4, 1968), Golden Age
Beverage Co, 167 NLRB No 24
337
of the Regional Director of the Board for Region 9, at the
Springfield, Ohio, store of M. N. Landau Stores, Inc.,
d/b/a Clark's Discount Department Store, herein called
the Respondent, pursuant to a Stipulation for
Certification Upon Consent Election signed by
Respondent and Retail Clerks Union Local No. 1552,
Retail Clerks International Association, AFL-CIO, herein
called the Union, and approved by the Regional Director
for Region 9 on June 15, 1967. In an appropriate unit of
approximately 76 eligible voters, 76 ballots were cast, 55
in favor of and 17 votes against the Union. There were 4
challenged ballots
Pursuant to timely objection to conduct affecting the
results of the election filed by Respondent on August 11,
1967, an investigation was conducted under the direction
and supervision of the Regional Director, in accordance
with Section 102.69 of the Board's Rules and Regulations
As a result of such investigation, a Report on Objections
was issued by the Regional Director on December 11,
1967, recommending that the Board overrule the
Respondent's objections in their entirety and that the
Union be certified.
On December 21, 1967, Respondent filed timely
Exceptions to the Regional Director's Report on
Objections, in which the Respondent requested the Board
to reverse the Regional Director and to set aside the
election, or in the alternative to order a hearing On
February 15, 1968, the Board issued its Decision and
Certification of Representative in which it adopted the
Regional Director's findings, conclusions and
recommendations and certified the Union as the exclusive
bargaining representative of the employees in the election
unit. The Board said that "The exceptions, in our opinion,
raise no material issues of law or fact which would require
reversal of the Regional Director's findings and
recommendations or which would require the conduct of a
hearing."
THE UNFAIR LABOR PRACTICE CASE
On April 12, 1968, the Union filed an unfair labor
practice charge in which it alleged that since February 15,
1968, the Respondent refused and continues to refuse to
bargain with the Union. On July 10, 1968, the General
Counsel, by the Regional Director, issued a complaint
alleging that commencing on or about April 11, 1968,
Respondent had committed unfair labor practices in
violation of Section 8(a)(1) and (5) and Section 2(6) and
(7) of the Act by refusing to bargain with the Union upon
request In due course, the Respondent filed its answer to
the complaint in which certain allegations of the
complaint were admitted and others denied. In its answer
Respondent, inter alia, admitted the following allegations
of the complaint (1) the filing and service of the unfair
labor practice charge, and (2) the jurisdictional
allegations. Respondent denied the following allegations:
(1) that the unit involved is appropriate (paragraph 9 of
the answer), (2) that the unit in question designated the
Union as their exclusive bargaining agent and that the
Board certified the Union (Answer, paragraph 5), (3) that
the Union requested Respondent to bargain collectively
with respect to rates of pay, wages, hours of employment
and other terms and conditions of employment (Answer,
paragraph 6), (4) that the Respondent refused to bargain
with the Union (Answer, paragraph 7), and (5) that
Respondent violated Section 8(a)(1) and (5) and Section
2(6) of the Act (Answer, paragraph 8).
175 NLRB No. 53
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Answer additionally makes a number of
affirmative assertions in paragraph 9 thereof. Thus, (1) In
support of its denial of the appropriatness of the unit the
Respondent states that the Union "reneged" on a
stipulation by causing to be challenged two employees
whose inclusion in the unit had been stipulated, thereby
"vitiating and nullifying" the underlying unit stipulation.
(2) The Answer further asserts that the Board and/or the
Regional Director erred and deprived the Respondent of
due process of law by (a) failure to rule upon challenges
to the ballots of the two employees referred to above,
whose names assertedly appeared on a "stipulated list of
eligible voters agreed to by the parties," (b) failing to
order a hearing upon the Respondent's objections to the
election, (c) by subjecting Respondent to the complusion
of the Excelsior Underwear rule,' invalidly promulgated in
disregard of the notice and publication requirements of the
Administrative Procedure Act, and (d) erroneous findings,
conclusions and recommendations in the Regional
Director's Report on Objections (3) Additionally the
Answer urges that the Board further deprived the
Respondent of due process of law by denying the
Respondent's exceptions to the Regional Director's
Report on Objections "without rendering an independent
opinion of the case."
Under date of August 6, 1968, counsel for the General
Counsel filed a Motion for Summary Judgment wherein
he moved that paragraphs 4, 5, 6, 7, 8, and 9 of
Respondent's answer be stricken on the grounds that they
are a sham, that all the allegations of the Complaint be
deemed to be true and be so found, and that a Decision
accordingly issue In a supporting Memorandum the
General Counsel contends that Respondent's answer fails
to constitute a valid defense to the allegations of the
complaint, and that the facts of official record with
respect to Case 9-RC-7146 and the admissions contained
in Respondent's answer establish the violations alleged in
the complaint as a matter of law, and that therefore no
hearing is necessary.
On August 8, 1968, I issued an Order to Show Cause
on the General Counsel's Motion for Summary Judgment,
in which order the parties were directed to show cause on
or before August 26, 1968, as to whether or not the
motion should be granted '
On August 23, 1968, Respondent filed a Statement in
Opposition to General Counsel's Motion for Summary
Judgment, referred to more specifically hereinafter, and
under date of August 30, 1968 a letter requesting
consideration of two recent Circuit Court decisions -
which request is granted. In accordance with counsel's
further request the letter is directed to be made part of the
official record.
RULING ON MOTION FOR SUMMARY JUDGMENT
Respondent's basic contention is that General Counsel's
Motion for Summary Judgment should be denied for the
reason that the certification is invalid, and that the
Respondent is entitled to a hearing. I find the
Respondent's contentions unsubstantiated in the
circumstances of this case.
'Excelsior Underwear, Inc, 156 NLRB 1236, requiring employers in
election cases to file with the Regional Director (who shall make it
available to all parties in the case ) a list of the names and addresses of all
eligible voters
'In the caption of the Order to Show Cause the Union Local is
erroneously identified as Local 1522
The question of the validity of the election and the
certification was decided by the Board in the
representation proceeding. It is established Board policy,
in the absence of newly discovered or previously
unavailable evidence or special circumstances not to
permit litigation before a Trial Examiner in an unfair
labor practice case of issues which were or could have
been litigated in a prior related representation proceeding.'
In the representation proceeding the Respondent presented
to the Board, or had opportunity to present, all its present
contentions concerning the validity of the election and the
certification. The Respondent is thus seeking to relitigate
the Board's determination, or, as is further discussed
infra, waived its objections by not pressing them at that
time No new evidence or special circumstances are
alleged.
With respect to its contention that it is entitled to a
hearing, the Respondent asserts that Section 10(b) of the
National Labor Relations Act, Section 5 of the
Administrative Procedure Act, (5 U.S.C. 554), and
Section 101.10 of the Board Statements of Procedure,
require a hearing in unfair labor practice cases as a matter
of law. There is, however, no absolute right to a hearing
where there are no litigable issues. See Harry T. Campbell
Sons', Corporation, 164 NLRB No. 36, fn. 9, and cases
there cited.
A hearing is not a matter of right in the disposition of
objections to an election unless substantial and material
issues are raised by the objections. As the Court of
Appeals for the Fifth Circuit said in the case of Air
Control Window Products, Inc , 355 F.2d 245, 249 (C.A.
5, 1964): "If there is nothing to hear, then a hearing is a
senseless and useless formality." See also Bata Shoe Co.,
377 F.2d 821, 826 (C.A. 4, 1967)• . there is no
requirement, constitutional or otherwise, that there be a
hearing in the absence of substantial and material issues
crucial to determination of whether NLRB election results
are to be accepted for purposes of certification " Other
courts of appeal are in accord. See, for example,
N.L.R B v. Certified Testing Laboratories, Inc., 387 F.2d
285 (C A. 3, 1967); N L.R B v. Tennessee Packers, Inc ,
379 F.2d 172 (C.A. 6, 1967), cert. denied 389 U.S. 958
(1967); N L.R B. v. National Survey Service, Inc, 361
F 2d 199, 208 (C.A. 7, 1966), N L R.B. v. Hollywood
Brands, Inc., 398 F.2d 294 (C.A. 7, 1968). The cases cited
by the Respondent' are not authority to the contrary
Those cases hold that an evidential hearing is required
where there are substantial and material issues. They are
not to be construed as requiring such a hearing where
there are no such issues. In any event in its Decision and
Certification of Representative the Board specifically
found, and this finding is binding on the Trial Examiner,
that the Respondent's exceptions to the Regional
Director's Report on Objections to the election raised no
material issue of law or fact warranting reversal of the
Regional Director or requiring hearing.
'Howard Johnson Company, 164 NLRB 801, Metropolitan Life
Insurance Company, 163 NLRB 579. See Pittsburgh Plate Glass Company
v NLRB, 313 US 146, 162 (1941 ); Rules and Regulations and
Statements of Procedure, National Labor Relations Board , Series 8 as
revised January 1, 1965, Section 102 67(f) and 102 69(c)
'Amencan Federation of Labor v N L R B. 308 U S 401, N L R B v
Poinsett Lumber & Mfg, Co, 221 F 2d 121 (C.A 4, 1955), N L R B v
Bata Shoe Co , supra. N L R B v Lord Baltimore Press, Inc, 300 F.2d
671 (C A 4, 1962), N L R B v. Lamar Electric Membership Corp, 362
F 2d 505 (C A 5, 1966), Howell Refining Co v N L R B, 400 F 2d 213
(C A 5, 1968), N L R B v KVP Sutherland Paper Co , 356 F.2d 671
(C A 6,1966), Sonoco Products Co v N L R 8 , 399 F 2d 835 (C A 9, 1968)
M. N. LANDAU STORES, INC. 339
The Respondent further urges that there is no authority
in the National Labor Relations Act, the Administrative
Procedure Act, or the Board ' s procedures , for summary
judgment . Similar contentions have been rejected by the
Board in prior decisions ' Board orders based on summary
judgments have been enforced by a number of United
States Courts of Appeals ' I am cited to no case in which
a court has refused enforcement of a Board order on the
ground that the Board lacks authority to use summary
judgment procedures.
The Respondent ' s contention that the unit stipulation
was nullified by the Union ' s action in " reneging" on a
further stipulation including in the unit two employees
whose right to vote the Union thereafter challenged does
not constitute a defense to the complaint . In the first place
those two votes could not have affected the results of the
election , and the Regional Director so found In such
circumstances the Respondent was not prejudiced or
deprived of due process of law by the Regional Director's
action in declining to rule on the challenges . Houston
Chronicle Publishing Company, 130 NLRB 1243,
1245-46. Secondly, no exceptions were filed by the
Respondent to that action by the Regional Director
Under the Board ' s rules the Respondent ' s failure to
request review in that respect precludes litigation of the
issue now 8 See also N L R B v Rexall Chemical Co
370 F 2d 363 (C A. 1, 1967)
The Respondent's assertion that the Board ' s Excelsior
Underwear rule was invalidly promulgated is not
sustained Such contention is contrary to the Respondent's
Stipulation for Certification upon Consent Election, which
contained a provision that.
Said election shall be held in accordance with the
National Labor Relations Act, the Board ' s Rules and
Regulations , and the applicable procedures and policies
of the Board.
In addition , the Respondent did not raise such an issue in
its objections to the election or in its exceptions to the
Regional Director ' s report on objections , and therefore is
precluded from raising it now In any event , the Board
and the Courts of Appeal for the Fourth , Fifth, and
Seventh Circuits have held that the Excelsior rule
'See, for example , Liquid Carbonic Corporation, 116 NLRB 795, Union
Brothers , Inc , 162 NLRB No 140, Reno's Riverside Hotel. inc , d/b/a
Riverside Hotel , 163 NLRB No 37, Metropolitan Life Insurance
Company, 163 NLRB No 71, Harry T Campbell Sons' Corporation. 164
NLRB No 36, and cases there cited , Red-More Corp , d/b/a Disco Fair.
164 NLRB No 93, Ore-Ida Foods, 164 NLRB No 64, Clement-Blythe
Companies, 168 NLRB No 24 , State Farm Mutual Automobile Insurance
Company, 169 NLRB No 122
'See, for example, the following recent cases Baumritter Corp v
NLRB B. 386 F 2d 117 (CA I, 1967), NLRB v Puritan Sportswear
Corp . 385 F 2d 142 (C A 3, 1967), LTV Electrorystems, Inc v N L R B ,
388 F 2d 683 (C A 4, 1968), N L R B v Aerovox Corp , 390 F 2d 653
(C A 4, 1968), Neuhoff Bros Packers, Inc v N L R B . 362 F 2d 611
(C A 5, 1966), N L R B v Tennessee Packers, Inc , 379 F 2d 172 (C A 6,
1967), Follett Corp v NLRB B. 397 F 2d 91 (C A 7, 1968), NLRB v
Krieger-Ragsdale & Company, Inc , 379 F 2d 517 (C A 7, 1967),
N L R B v Montgomery Ward & Co, 399 F 2d 409 (C A 7, 1968),
N L R B v E-Z Davies Chevrolet. 395 F 2d 191, (C A 9, 1968), N L R B
v Continental Nut Company, 395 F 2d 830 (C A 9, 1968)
'Section 102 67(I), 102 69(c) Section 102 67(l), made applicable by
Section 102 62 and Section 102 69( c) of the rules to post election
procedures of the kind here involved , provides in part as follows
(f) The parties may, at any time, waive their right to request review
Failure to request review shall preclude such parties from relitigating, in
any related subsequent unfair labor practice proceeding, any issue which
was, or could have been, raised in the representation proceeding
constitutes a valid exercise of the Board ' s authority.
Excelsior Underwear Inc, 156 NLRB 1236; NL.R.B v.
Hanes Hosiery Division - Hanes Corp ., 384 F 2d 188, cert.
denied 390 U.S. 950 (C.A. 4, 1967), NL.R.B. v. S S
Logan Packing Co., 386 F.2d 562 (C.A. 4, 1967); Howell
Refining Co v N L R.B, 400 F 2d 213 (C A 5, 1968),
NL.R.B. v Rohlen , 385 F 2d 52 (C A. 7, 1967);
NLRB v. Duncan Foundry & Machine Works, 67
LRRM 2516 (C.A. 7, 1968 ) While the Court of Appeals
for the First Circuit has held that the rule was invalidly
enacted ,' its opinion to that effect is now pending before
the United States Supreme Court on the Board ' s petition
for certiorari . In the interim the decision of the Board and
the opinions of the Fourth, Fifth and Seventh Circuits
upholding the rule are binding on the Trial Examiner.
With respect to the Respondent ' s assertion in its
Answer to the effect that it was deprived of due process of
law by the Board's action in denying Respondent's
exceptions to the Regional Director ' s Report on
Objections , "without rendering an independent opinion of
the case," the Respondent ' s position does not appear to be
supported No authority is cited for this proposition. The
Board issued a formal Decision and Certification of
Representative in which it found that the Respondent's
exceptions raised no material issues of law or fact
warranting reversal of the Regional Director or requiring
hearing, and accordingly adopted the Regional Director's
findings , conclusions and recommendations If an
independent opinion of the case is required the Board's
Decision would appear to be such . I am aware of no
authority forbidding the Board , in disposing of exceptions
to a Regional Director ' s Report on Objections to an
election , from adopting the Regional Director ' s findings
or conclusions as its own, or of any requirement that the
Board in such a circumstance restate in detail each fact or
consideration raised by the record in the case.
As is hereinafter found , the Respondent refused to
bargain collectively with the Union upon request There
thus being no unresolved issues requiring an evidential
hearing or newly discovered or previously unavailable
evidence or special circumstances , the certification of the
Board constitutes the law of the case at this stage of the
proceeding. The Motion for Summary Judgment is
therefore granted
This leaves for determination the General Counsel's
request, contained in his Motion for Summary Judgment,
to strike paragraphs 4, 5, 6, 7, 8 and 9 of the
Respondent's Answer , on the ground that they are a
sham. These paragraphs , as indicated supra, raise
questions of fact and law as to the validity of the
representation determination , the request and the refusal
to bargain , and the commission of unfair labor practices.
Board rule 102 21 provides authority for striking an
answer which is sham and false. However, there is no
showing here that the Respondent ' s assertions contained
in the subject paragraphs were made in bad faith or for
the purpose of delay or are otherwise sham and false
within the meaning of rule 102 21 . That the Board may in
the representation case have ruled contrary to the
Respondent's contentions , or that relevant facts have been
found against the Respondent , does not warrant striking
the answer Whether the paragraphs should be stricken
depends, not upon whether the defenses are ultimately
shown to be adequate in fact or law, but whether they are
adequate as a pleading - that is, whether they raise
viable issues vis-a-vis the allegations of the complaint
'Wyman-Gordon Co v N L R B, 397 F 2d 394 (C A 1, 1968)
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here they plainly do. A traverse of those assertions in the
complaint which the Respondent denies is essential to its
securing review of those matters For absent such traverse
the Respondent would have no issue to contest before the
Board or the courts The General Counsel's request to
strike the indicated paragraphs of the answer is therefore
denied.' °
On the basis of the record before me, I make the
following further
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation engaged in the
operation of discount department stores at various
locations in the United States. Respondent's store located
in Springfield, Ohio, is the one involved in this
proceeding During the past calendar year, a
representative period, in the course and conduct of its
business operations, Respondent had a gross volume of
retail sales in excess of $500,000. During the same period,
Respondent had a direct inflow, in interstate commerce,
of materials, goods and products valued in excess of
$50,000, which it purchased and had shipped directly to its
store in the State of Ohio from points outside the State of
Ohio The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
In accordance with the Stipulation for Certification
upon Consent Election, it is found that the following
employees of the Respondent constitute a unit appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
All full-time and regular part-time employees
employed by the Employer and its licensees at its store
located in Springfield, Ohio, including leased
department employees, department heads, credit office
employees, bookkeepers, and maintenance employees,
excluding the store manager, all assistant store
managers, all leased department managers, and all
guards, professional employees, and all supervisors as
defined in the Act, as amended.
As has been seen, on August 4, 1967, a majority of
Respondent's employees in the appropriate unit selected
the Union as their collective bargaining representative in a
secret-ballot election conducted under the supervision of
the Regional Director for Region 9 of the National Labor
Relations Board, and on February 15, 1968, the Union
was duly certified as such representative by the Board.
It is accordingly found that at all times since August 4,
1967, and continuing to date, the Union has been the
representative for the purposes of collective bargaining of
the employees in the said unit, and by virtue of Section
"In its Statement in Opposition to the General Counsel's Motion for
Summary Judgment , Respondent , in connection with its assertion that its
answer was filed in good faith, urges that the Trial Examiner admonish
counsel for the General Counsel for requesting the sinking of Respondent's
pleading I do not deem the General Counsel's request suggestive of
unprofessional conduct
9(a) of the Act, has been, and is now, the exclusive
representative of all the employees in said unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment
The Refusal to Bargain
The complaint alleges in paragraph 6 that commencing
on or about February 26, 1968, and continuing to date,
the Union requested the Respondent to bargain
collectively, and in paragraph 7 that commencing on or
about April 11, 1968, and at all times thereafter,
Respondent refused to bargain with the Union The
Respondent's answer denies both these paragraphs of the
complaint.
To his Memorandum in Support of his Motion for
Summary Judgment counsel for the General Counsel
attached, as exhibit H, a copy of a letter dated February
26, 1968 from Kenneth V Mitchell, the president of the
Union, to Lawrence S Wescott, an attorney, who was at
that time associated with the law firm of Shawe &
Rosenthal, which has represented the Respondent
throughout the representation and unfair labor practice
proceedings. Attorney Wescott executed the Stipulation
for Consent Election on behalf of the Respondent, and
signed the Respondent's Objections to the Election and its
Exceptions to the Regional Director's Report on
Objections. Also attached to the Memorandum in Support
of the Motion for Summary Judgment, as exhibit 1, is an
affidavit dated May 14, 1968, by Herschel M. Sigall,
identified as an attorney for the Union, stating in sum
that on April 11, 1968, Attorney Wescott informed
Attorney Sigall, in response to the Union' s bargaining
demand, that the Respondent would test the matter in
court and would not bargain with the Union."
The, Respondent has not denied the authenticity of
exhibits H and I. However, in its Statement in Opposition
to the Motion for Summary Judgment the Respondent
asserts that it is improper to rely on the affidavit when
"Respondent is prevented from disputing the affidavit
because of the Board's no-discovery policy" (Statement in
Opposition, p 4) The Respondent reaches this conclusion
on the apparent supposition that under rules 12(c) and 56
of the Federal Rules of Civil Procedure only evidence
secured by means of discovery procedure is available in
summary judgment proceedings to contest affidavits, and
that the Respondent is thus denied an adequate
opportunity to defend itself. The Respondent's contention
is not sustained.
In the first place the Board's summary judgment
procedures find their authority in the rules and regulations
and decisions of the Board and not in the Federal Rules
of Civil Procedure. Krieger-Ragsdale & Company, Inc.,
159 NLRB 490, 495, enfd 379 F 2d 517 (C.A. 7, 1967)
cert. denied 389 U S. 1041 (1968) In the second place, I
do not construe Rules 12(c) and 56 of the Federal Rules
"Specifically, the affidavit states , in relevant part
I am oneof the Attorneys for Retail Clerks Union Local No 1552, Retail
Clerks International Association , AFL-CIO On the 11th day of April,
1968, Kenneth V Mitchell , President of Local No 1552, requested me to
call Lawrence S Wescott , the employer's attorney , to find out why the
employer had not answered-Local No 1552's' bargaimngdemands 'on M N
Landau Stores , Inc, d/b/a Clark's Discount Department Store, with
regard to their Springfield , Ohio, store These demands were made by
Mr Mitchell subsequent to the certification of the Union Mr Westcott
told me that the employer would test the matter in court . He said that
the employer would not bargain with the Union
M. N. LANDAU STORES, INC.
of Civil Procedure to restrict evidence in summary
judgment proceedings to material securable by discovery.
Those rules do not purport to make inadmissable evidence
in the possession and control of a respondent. Thirdly, the
Order to Show Cause issued on the Motion for Summary
Judgment specifically directed the parties to submit in
response to the Order "any briefs, proposed findings, or
other material intended to be submitted for consideration,
either in connection with disposition of the Motion [for
Summary Judgment] or in connection with disposition of
the case on the merits ." (Emphasis supplied). The Order
to Show Cause further recited that "If no response
disclosing material unresolved issues litigable before and
requiring hearing by a trial examiner is filed by August
26, 1968, the Motion for Summary Judgment may be
granted forthwith." It is thus clear that the Respondent
was afforded opportunity to submit any material it wished
to be considered in connection with disposition of the
case. In view of the failure of the Respondent to contest
the authenticity of exhibits H and I or to deny the
correctness of the material facts asserted therein or to
submit any matter bearing on them, I find that the
exhibits establish the allegations of paragraphs 6 and 7 of
the complaint.
It is therefore found that under date of February 26,
1968, the Union requested the Respondent to bargain
collectively in the appropriate unit and that on April 11,
1968, and at all times thereafter, the Respondent refused
to bargain collectively with the Union. By such action the
Respondent has refused to bargain collectively in violation
of Section 8(a)(5) of the Act and has interfered with,
restrained and coerced its employees in violation of
Section 8(a)(1) of the Act. The aforesaid unfair labor
practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the
entire record in the case, pursuant to Section 10(c) of the
Act, I recommend that the Board issue the following:
ORDER
A For purposes of determining the effective period of
duration of the certification, the initial year of
certification shall be deemed to begin on the date the
Respondent commences to bargain in good faith with the
Union as the recognized bargaining representative in the
appropriate unit.' 2
B. M N. Landau Stores, Inc, d/b/a Clark's
Department Store, Springfield, Ohio, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from
(a) Refusing to bargain collectively with Retail Clerks'
Union Local No. 1552, Retail Clerks International
Association, AFL-CIO, as the exclusive collective
bargaining representative of the employees in the
following appropriate unit
All full-time and regular part-time employees
employed by the Employer and its licensees at its store
located in Springfield, Ohio, including leased
department employees, department heads, credit office
employees, bookkeepers, and maintenance employees,
"The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the statutorily prescribed services of their
selected bargaining agent for the period provided by law 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, 1964),
Burnett Construction Company, 149 NLRB 1419, 1421, enfd 350 F 2d 57
(CA 10, 1965)
341
excluding the store manager, all assistant store
managers, all leased department managers, and all
guards, professional employees, and all supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said
appropriate unit as the exclusive collective bargaining
representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Retail Clerks
Union Local No. 1552, Retail Clerks International
Association, AFL-CIO, as the exclusive representative of
the employees in the appropriate unit with respect to rates
of pay, wages, hours of work, and other terms and
conditions of employment and embody in a signed
agreement any understanding reached.
(b) Post at its Springfield, Ohio, store copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms to be provided by the Regional Director
of Region 9, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it 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 Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from receipt of this Recommended
Order, what steps it has taken to comply herewith.'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Retail Clerks' Union Local No. 1552, Retail Clerks'
International Association, AFL-CIO, as the exclusive
bargaining representative of all our following
employees:
All full-time and regular part-time employees
employed by us and by our licensees at our
Springfield, Ohio, store, including leased department
employees, department heads, credit office employees,
bookkeepers, and maintenance employees, excluding
the store manager, all assistant store managers, all
leased department managers, and all guards,
professional employees, and all supervisors as defined
in the Act, as amended.
WE WILL NOT interfere with the efforts of said Union
to negotiate for or represent the employees in said
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a decree of the United States Court of
Appeals enforcing an Order" shall be substituted for the words "a Decision
and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit as the exclusive collective -bargaining
representative.
WE WILL bargain collectively with the Union as
exclusive bargaining representative of the employees in
the bargaining unit, and if an understanding is reached
we will sign a contract with the Union.
M N. LANDAU STORES, INC.
D/B/A CLARKS' DISCOUNT
DEPARTMENT STORE
!(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal Office
Building, 550 Main Street, Room 2407, Cincinnati, Ohio
45202, Telephone 684-3686