Community Currency Exchange, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 354 (N.L.R.B. 1971)

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Community Currency Exchange , Inc., Van -Buren
Marshfield Currency Exchange , Inc., Racine Cur-
rency Exchange, Inc., 59th & Kedzie Currency Ex-
change, Inc. and Armored Car Drivers, Helpers,
Messengers and Allied Employees Union , Local 725,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 13-CA-9971
June 21, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on July 21, 1970, by Armored
Car Drivers, Helpers, Messengers and Allied Em-
ployees Union, Local 725, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, and duly served on
Community Currency Exchange, Inc., Van Buren
Marshfield Currency Exchange, Inc., Racine Currency
Exchange, Inc., 59th & Kedzie Currency Exchange,
Inc., herein collectively called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13, issued
a complaint on August 20, 1970, as amended on Febru-
ary 8, 1971, against Respondent, alleging that Re-
spondent 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 com-
plaint alleges in substance that on May 12, 1970, fol-
lowing a Board election in Case 13-RC-11872 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;'and that, commencing
on or about May 16, 1970, and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
' Official notice is taken of the record in the representation proceeding,
Case 13-RC-11872, 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 Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (CA 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
F.2d 91 (CA. 7, 1968); Sec 9(d) of the NLRA
In the representation case, the Respondent agreed that its four constitu-
ent, and separately incorporated, currency exchanges operate as a single
employer for both unit and jurisdictional purposes Thereafter, pursuant to
the parties' stipulation and agreement of January 20, 1971, the Regional
Director, on January 27, 1971, issued a corrected Certification of Represent-
ative to change the name of the Respondent from Jack Swirsky Currency
Exchange to the names of the four currency exchanges appearing in the
caption of the amended complaint and notice of hearing herein.
191 NLRB No. 68
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
February 17, 1971, and March 9, 1971, Respondent
filed its answer and amended answer to the complaint
respectively,admitting in part, and- denying in part, the
allegations in the, complaint, and contending that the
Respondent does not come within the Board's jurisdic-
tion.
On March 17, 1971, counsel for the General Counsel
filed directly with the Board 'a Motion for Summary
Judgment. Subsequently, on March 24, 1971, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a response
to the 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 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 answers to the complaint and in its response to
the Notice To Show Cause, the Respondent again
raises the issue that it is not subject to the Board's
jurisdiction, contending, therefore, that the Board's
certification is of no force and effect and the Union is
not the exclusive bargaining representative of the Re-
spondent's employees in the appropriate unit. We find
no merit in these contentions.
The record in Case 13-RC-11872 reflects that, after
a hearing in which the Respondent participated, the
Board, on March 27, 1970, issued its Decision and
Direction of Elections (Benjamin Green, et. als., 181
NLRB No. 135) in which it considered and found no
merit in the Respondent's jurisdictional contentions.
Upon the Respondent's admission that it operated its
four currency exchanges as a single employer for both
unit and jurisdictional pursposes, the Board found that
the currency exchanges performed a service for their
patrons, akin to a retail service, and were engaged in
operations in interstate commerce or affecting inter-
state commerce. In these circumstances, and as the
Respondent's annual gross volume of business ex-
ceeded $500,000, and as it was an employer engaged in
commerce within the meaning of the Act, the Board
also found that it would effectuate the policies of the
Act to assert jurisdiction over the Respondent's cur-
rency exchange operations. On May 12, 1970, follow-
ing the election directed by the Board, the Union was
certified as the exclusive bargaining representative of
the Respondent's employees in the appropriate unit.
COMMUNITY CURRENCY EXCHANGE, INC. 355
In its response to the Notice To Show Cause, the
Respondent requests reevaluation of the Board's deci-
sion insofar as it allegedly improperly applied a retail
service standard, rather than a standard based on the
annual -gross receipts received by the Respondent as
fees for its services. We have considered the Respond-
ent's request, but deny it as not raising any matter not
previously considered by the Board.
The Respondent also contends that the Board should
dismiss the complaint with respect to the 59th & Ked-
zie Currency Exchange, Inc., because that portion of
the Respondent's operations has ceased doing business.
The Respondent alleges that the 59th & Kedzie Cur-
rency Exchange, Inc., ceased operating on or about
January 12, 1971, which we find to be subsequent to the
certification of the Union and the Respondent's refusal
to bargain. In these circumstances we will deny the
Respondent's contention, and leave to the compliance
stage of the proceeding the determination of the status
of the 59th & Kedzie Currency Exchange, Inc., as a
viable enterprise affected by the order herein.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.2
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation 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 prop-
erly 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
At all times material herein the Respondent has
maintained four places of business in Chicago, Illinois,
where it has been engaged in various functions and
activities relative to currency exchanges. Each place of
business or currency exchange is incorporated under
and by virtue of the laws of the State of Illinois. During
the past calendar year, a representative period, the Re-
spondent cashed checks, wrote and cashed money or-
2 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).
ders, and acted as remitting agent for the payment of
utility bills and for procurement of auto tags and driv-
ers' licenses for which services its annual gross receipts
derived from frees were approximately $167,500.' Dur-
ing the past calendar year, the Respondent, in connec-
tion with the services mentioned above, has issued at
each currency exchange money orders of a face value
in excess of $500,000 annually of which $5,000 annu-
ally was issued by each currency exchange and cashed
at points directly outside the State of Illinois.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED,
Armored Car Drivers, Helpers , Messengers and Al-
lied Employees Union, Local 725, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America, 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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All cashiers employed by the Respondent in its
various Chicago, Illinois, currency exchanges, but
excluding professional employees, guards and
supervisors as defined in the Act.
2. The certification
On April 21, 1970, a majority of the employees of
Respondent,in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 13 designated the Union as their representa-
tive for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on May 12, 1970, and the Union continues to be such
exclusive representative within the meaning of Section
9(a) of the Act.
' The total of $167,500 includes $19,500 received by the 59th & Kedzie
Currency Exchange, Inc. The Respondent alleges that 59th & Kedzie Cur-
rency Exchange, Inc., sold all its assets on or about January 12, 1971, has
not engaged in the currency exchange business or acted as an employer since
that date, and is now or is about to be dissolved under Illinois law.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 14, 1970, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
May 16, 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
May 16, 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, Respondent 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
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed 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 commerce 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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate 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 begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized 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
I. Respondent, Community Currency Exchange,
Inc., Van Buren Marshfield Currency Exchange, Inc.,
Racine Currency Exchange, Inc., 59th & Kedzie Cur-
rency Exchange, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Armored Car Drivers, Helpers, Messengers and
Allied Employees Union, Local 725, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All cashiers employed by the Respondent in its
various Chicago, Illinois, currency exchanges, but ex-
cluding professional employees, guards and supervisors
as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since May 12, 1970, the above-named labor orga-
nization has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about May 16, 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 in-
terfering 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 engag-
ing in unfair labor practices within the meaning of
Section 8(a)(I) 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 Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Community
Currency Exchange, Inc., Van Buren Marshfield Cur-
rency Exchange, Inc., Racine Currency Exchange,
Inc., 59th & Kedzie Currency Exchange, Inc., its offic-
ers, 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 Armored Car Drivers, Helpers,
Messengers and Allied Employees Union, Local 725,
International Brotherhood of Teamsters, Chauffeurs,
COMMUNITY CURRENCY EXCHANGE, INC 357
Warehousemen & Helpers of America, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All cashiers employed by the Respondent in its
various Chicago, Illinois, currency exchanges, but
excluding professional employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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 agree-
ment.
(b) Post at its Chicago, Illinois, currency exchanges
copies of the attached notice marked "Appendix."4 Co-
pies of said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by Re-
spondent's representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be main-
tained 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 Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
terms and conditions of employment with Ar-
mored Car Drivers, Helpers, Messengers and Al-
lied Employees Union, Local 725, International
Brotherhood of Teamsters; Chauffeurs, Ware-
housemen & Helpers of America, 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 Sec-
tion 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All cashiers employed by the Respondent
in its various Chicago, Illinois, currency ex-
changes, but excluding professional em-
ployees, guards and supervisors as defined in
the Act.
COMMUNITY
CURRENCY EXCHANGE,
INC., VAN BUREN
MARSHFIELD
CURRENCY EXCHANGE,
INC., RACINE
CURRENCY EXCHANGE,
INC., ,59TH & KEDZIE
CURRENCY EXCHANGE,
INC.
(Employer)
° 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
Dated By
(Representative) (Title)
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, Room 881, Everett McKinley Dirksen Building,
219 South Dearborn Street, Chicago, Illinois 60604,
Telephone 312-353-7572.