Famous Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1975

220 N.L.R.B. 484 (N.L.R.B. 1975)

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Famous Industries, Inc. and Retail Clerks Union, Lo-
cal 1540, chartered by Retail Clerks International
Association, AFL-CIO. Case 13-CA-14155
September 22, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on April 2, 1975, by Retail
Clerks Union, Local 1540, chartered by Retail Clerks
International Association, AFL-CIO, herein called
the Union, and duly served on Famous Industries,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 13, issued a com-
plaint on April 23, 1975, 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 be-
fore an Administrative Law Judge were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on March 5, 1975,
following a Board election in Case 13-RC-13363 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about March 28, 1975, 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 May 12, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. The Respondent admits
all of the factual allegations of the complaint, includ-
ing the appropriateness of the unit, the certification
of the Union, and the Union's request • and
Respondent's refusal to bargain.
On June 2, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment, with exhibits attached, submitting, in ef-
fect, that Respondent, in its answer, is attempting to
relitigate issues which were raised and determined in
i Official notice is taken of the record in the representation proceeding,
Case 13-RC-13363, as the term "record" is defined in Secs . 102.68 and
102.69(g) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F .2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd . 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp . 573 (D.C. Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
the underlying representation proceeding; that there
are no material issues of fact not admitted or previ-
ously determined requiring a hearing; and that the
Board grant the Motion for Summary Judgment and
issue an appropriate remedial order. Subsequently,
on June 9, 1975, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed an opposition to the General
Counsel's motion.
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
As reflected above, the Respondent's answer ad-
mits all of the factual allegations of the complaint,2
including the appropriateness of the unit, the certifi-
cation of the Union, and the Union's request and
Respondent's refusal to bargain.
In its opposition to the General Counsel's Motion
for Summary Judgment, Respondent attacks the Re-
gional Director's and the Board's rulings in the repre-
sentation proceeding which did not permit replace-
ments for striking employees to vote. The
Respondent admits that the "central focus" of its ar-
gument is that the Board's failure to permit the re-
placements to vote is so prejudicial to the replace-
ments and to the Respondent that the ensuing
election and the resulting certification is invalid. The
record of the prior representation proceeding, which
is before us, shows that the Respondent, in its excep-
tions to the Regional Director's Supplemental Deci-
sion on Challenged Ballots 3 to the Board, raised the
issue of the eligibility of the replacements to vote,
including the application of Greenspan Engraving
Corp., 137 NLRB 1308 (1962), and Tampa Sand &
Material Company, 129 NLRB 1273 (1961). As in
Greenspan, supra, the strike here began before the
election was directed and we see no basis for altering
2 Although in its answer, Respondent denies par III of the complaint
which alleges that Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of Sec . 2(6) and (7)
of the Act, Respondent does admit the allegations of par. II of the com-
plaint which sets forth Respondent 's business operations and the dollar
volume thereof . Moreover, the Regional Director in his Decision and Direc-
tion of Election found that Respondent was an employer engaged in com-
merce within the meaning of the Act.
I The Regional Director found that 15 of the replacements started their
employment after the eligibility date of June 16, 1974, and, accordingly,
held that their ballots should not be counted. He further found that the 19
strikers were eligible to vote and overruled the Respondent 's challenges to
their ballots.
220 NLRB No. 85
FAMOUS INDUSTRIES, INC. 485
our usual eligibility standards which require that an
employee must be employed on the eligibility date
and on the date of the election. In Tampa Sand, su-
pra, the Board concluded that replacements working
on the date of the election were eligible to vote be-
cause the strike occurred after the issuance of the
Direction of Election and it was obviously impossible
for the employer to hire replacements for an eligibili-
ty period already passed. In the present case the
strike occurred on June 12, 1974, and the Direction
of Election issued on June 21, 1974, using an eligibili-
ty date of June 16, 1974. Apart from the fact that the
Employer had a reasonable time to hire new employ-
ees as replacements subsequent to the strike, it
should be noted that in view of a pending 8(b)(7)(C)
charge filed by the Employer on June 12, 1974, the
Board was required by statute to conduct an election
forthwith. Moreover, the Employer did not hire re-
placements until June 20, some 8 days after the com-
mencement of the strike. In view of all the circum-
stances, we find no reason to vary the rule
enunciated in Greenspan, that to be eligible to vote an
employee must be employed during the eligibility
payroll period and on the date of the election. We,
therefore, perceive no error in the denial of review 4
on the ground that it raised no substantial issues war-
ranting review.
By its contention, and by its denials, in whole or in
part, of the allegations of the complaint and the argu-
ments propounded in its opposition to the General
Counsel's Motion for Summary Judgment, the Re-
spondent is attempting to relitigate the same issues
which it raised in the representation proceeding,
Case 13-RC-13363. It is well settled that in the ab-
sence 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 proceed-
ings
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision 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.
4 Member Kennedy would have granted review
3 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(1) and 102.69(c).
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, an Illinois corporation with its principal of-
fices located at 7350 West 15th Street, Forest Park,
Illinois, where it is engaged in the retail sale and dis-
tribution of alcoholic beverages and related prod-
ucts. Involved herein is Respondent's retail liquor
store located at 7339 West Madison Street, Forest
Park, Illinois. During the past calendar year, a repre-
sentative period, Respondent, in the course and con-
duct of its business operations, received revenues in
excess of $500,000 from the retail sale and distribu-
tion of alcoholic beverages and related products.
During the past calendar year, a representative peri-
od, Respondent, in the course and conduct of its
business operations, purchased and caused to be
transported to its Forest Park store and its other Illi-
nois places of business alcoholic beverages and relat-
ed products valued in excess of $5,000, which were
shipped directly from points located outside the State
of Illinois.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local 1540, chartered by Re-
tail Clerks International Association, AFL-CIO, 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 con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All full-time and regular part-time employees of
Respondent's store located at 7339 West Madi-
son, Forest Park, Illinois, excluding store man-
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agers , and professional employees, guards and
supervisors as defined in the Act.
2. The certification
On July 26, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 13, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 5, 1975, 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 March 13, 1975, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about March 28, 1975, 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 March 28, 1975, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, 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 LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, 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 mean-
ing 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 ap-
propriate unit , and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 ( 1962), enfd . 328 F.2d 600
(C.A. 5, 1964), cert . denied 379 U.S. 817 ( 1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
( 1964), enfd . 350 F.2d 57 (C.A. 10, 1965).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Famous Industries, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks Union, Local 1540, chartered by
Retail Clerks International Association, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time employees of
Respondent's store located at 7339 West Madison,
Forest Park, Illinois, excluding store managers, and
professional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since March 5, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 28, 1975, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
FAMOUS INDUSTRIES, INC. 487
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 Re-
lations Board hereby orders that Respondent, Fa-
mous Industries , Inc., Forest Park , Illinois , its offi-
cers, 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 con-
ditions of employment with Retail Clerks Union, Lo-
cal 1540, chartered by Retail Clerks International
Association, AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time employees of
Respondent 's store located at 7339 West Madi-
son, Forest Park, Illinois, excluding store man-
agers , and 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
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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its 7339 West Madison Street, Forest
Park, Illinois , store copies of the attached notice
marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region
13, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immedi-
ately 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 materi-
al.
(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.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing 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 Union, Local 1540, chartered by Retail
Clerks International Association, AFL-CIO, as
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time employees
of Respondent's store located at 7339 West
Madison, Forest Park, Illinois, excluding store
managers, and professional employees, guards
and supervisors as defined in the Act.
FAMOUS INDUSTRIES, INC.