Fotomat Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1977

233 N.L.R.B. 56 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fotomat Corporation and Retail Store Employees
Union, Local 880, Retail Clerks International
Association, AFL-CIO. Case 8-CA-10765
October 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBER JENKINS
AND MURPHY
Upon a charge filed on January 26, 1977, by Retail
Store Employees Union, Local 880, Retail Clerks
International Association, AFL-CIO, herein called
the Union, and duly served on Fotomat Corporation,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 8, issued a complaint and notice
of hearing on March 8, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 an Adminis-
trative 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 December 20,
1976, following a Board election in Case 8-RC-9950,
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about January 24, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues 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 1, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint,
submitting defenses and requesting that the com-
plaint be dismissed in its entirety.
On May 4, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 16, 1977, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause, and also a cross-motion for
Summary Judgment.
i Official notice is taken of the record in the representation proceeding,
Case 8-RC-9950, 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,
233 NLRB No. 3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary
Judgment
In its response to the Notice To Show Cause, as
well as its affirmative defenses set forth in its answer
to the complaint, Respondent in substance attacks
the Union's certification on the ground that (1)
Respondent was denied a fair hearing in the
representation proceeding; (2) the unit certified is
inappropriate; (3) the election was conducted in an
improper manner; and (4) the Union lost its majority
status before it was certified.
Review of the record herein reveals that in Case 8-
RC-9950 a Stipulation for Certification Upon
Consent Election was approved by the Regional
Director and the election was conducted on July 17,
1975. The tally of ballots showed that of approxi-
mately 71 eligible voters 61 cast ballots, of which 40
were cast for the Union, and 21 were cast against the
Union. There were no challenged ballots. On July 18,
1975, Respondent filed timely objections to conduct
affecting the results of the election, and to the
conduct of the election. The Acting Regional
Director issued his Report on Objections on Septem-
ber 29, 1975, recommending the objections be
overruled and the Union be certified. Thereafter,
Respondent filed timely exceptions to the Acting
Regional Director's Report on Objections. On April
14, 1976, the Board ordered that a hearing be held
with respect to certain of Respondent's objections.
On August 12, 1976, the Hearing Officer issued his
report recommending that the objections be over-
ruled in their entirety, and on December 20, 1976,
the Board issued a Decision and Certification of
Representation (not reported in bound volumes of
Board Decisions), certifying the Union as the
collective-bargaining representative of the employees
in the appropriate unit.
Following a request by the Union on or about
January 6, 1977, that Respondent commence bar-
gaining and furnish it with a list of all employees in
the bargaining unit with normal work schedules,
including reporting time, quitting time, lunch hours,
and breaktimes, Respondent on January 24, 1977,
refused to bargain and to furnish the information
requested.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1%9); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Folleit Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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FOTOMAT CORPORATION
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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 Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the General
Counsel's Motion for Summary Judgment and deny
the Respondent's cross-motion for Summary Judg-
ment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in
the sale and processing of film. Annually, in the
course and conduct of its business, Respondent
receives gross revenues in excess of $500,000 and
receives goods valued in excess of $50,000 at its Ohio
facilities directly from points located outside the
State of Ohio.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local 880, Retail
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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All selling and nonselling full-time and part-
time employees, including maintenance employ-
ees employed in the Employer's Cleveland Area
District, which consists of the facilities listed
below, but excluding all office clerical employees,
route drivers, and professional employees, guards,
and supervisors as defined in the Act.
4200 Fulton Rd., Cleveland;
2400 Brookpark Rd., Cleveland;
7522 Broadview Rd., Parma;
6339 York Rd., Parma Hts.;
6879 W. 130th St., Parma Hts.;
14596 Snow Rd., Brookpark;
14131 Puritas, Cleveland;
13531 Lorain Ave., Cleveland;
1420 W. 117th St., Lakewood;
3376 Westgate Mall, Fairview Park;
22809 Lorain Ave., Fairview Park;
25980 Lorain Ave., N. Olmsted;
27180 Detroit Ave., Westlake;
1081 Meister Rd., Lorain;
3929 Pearl Rd., Lorain;
18314 Euclid Ave., Cleveland;
1501 East 276th St., Euclid;
200 East 228th St., Euclid;
7768 Lakeshore, Mentor;
34524 Lakeshore, Eastlake;
1510 Mentor Ave., Painesville;
7765 Mentor Ave., Mentor;
8504 Mentor Ave., Mentor;
4893 Robinhood Rd., Willoughby;
10333 Northfield Rd., Northfield; and
17838 Lorain Rd., Cleveland.
2. The certification
On July 17, 1975, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 8, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on December 20, 1976, and the Union
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).
57
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 January 6, 1977, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about January 24, 1977, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all the employees in said unit.
Accordingly, we find that Respondent has since
January 24, 1977, and at all times thereafter, refused
to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section 1, 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences 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 (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); Burnett 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. Fotomat Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Store Employees Union, Local 880,
Retail Clerks International Association, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All selling and nonselling full-time and part-
time employees, including maintenance employees
employed in the Employer's Cleveland Area District,
which consists of the facilities listed below, but
excluding all office clerical employees, route drivers,
and professional employees, guards, and supervisors
as defined in the Act: 4200 Fulton Rd., Cleveland;
2400 Brookpark Rd., Cleveland; 7522 Broadview
Rd., Parma; 6339 York Rd., Parma Hts.; 6879 W.
130th St., Parma Hts.; 14596 Snow Rd., Brookpark;
14131 Puritas, Cleveland; 13531 Lorain Ave., Cleve-
land; 1420 W. 117th St., Lakewood; 3376 Westgate
Mall, Fairview Park; 22809 Lorain Ave., Fairview
Park; 25980 Lorain Ave., N. Olmsted; 27180 Detroit
Ave., Westlake; 1081 Meister Rd., Lorain; 3929
Pearl Rd., Lorain; 18314 Euclid Ave., Cleveland;
1501 East 276th St., Euclid; 200 East 228th St.,
Euclid; 7768 Lakeshore, Mentor; 34524 Lakeshore,
Eastlake; 1510 Mentor Ave., Painesville; 7765
Mentor Ave., Mentor; 8504 Mentor Ave., Mentor;
4893 Robinhood Rd., Willoughby; 10333 Northfield
Rd., Northfield; and 17838 Lorain Rd., Cleveland;
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since December 20, 1976, the above-named
labor organization has been and is now the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about January 24, 1977, and
at all times thereafter, to meet and bargain collective-
ly with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, and by
refusing the Union's request for information regard-
ing normal work schedules, reporting time, quitting
time, lunch hours, and breaktimes, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX5) of the Act.
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FOTOMAT CORPORATION
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Fotomat Corporation, Cleveland Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing the Union's request for information
regarding normal work schedules, reporting time,
quitting time, hours, and breaktimes, and refusing to
bargain collectively concerning rates of pay, wages,
hours, and other terms and conditions of employ-
ment with Retail Store Employees Union, Local 880,
Retail Clerks International Association, AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All selling and nonselling full-time and part-
time employees, including maintenance employ-
ees employed in the Employer's Cleveland Area
District, which consists of the facilities listed
below, but excluding all office clerical employees,
route drivers, and professional employees, guards,
and supervisors as defined in the Act.
4200 Fulton Rd., Cleveland;
2400 Brookpark Rd., Cleveland;
7522 Broadview Rd., Parma;
6339 York Rd., Parma Hts.;
6879 W. 130th St., Parma Hts.;
14596 Snow Rd., Brookpark;
14131 Puritas, Cleveland;
13531 Lorain Ave., Cleveland;
1420 W. 117th St., Lakewood;
3376 Westgate Mall, Fairview Park;
22809 Lorain Ave., Fairview Park;
25980 Lorain Ave., N. Olmsted;
27180 Detroit Ave., Westlake;
1081 Meister Rd., Lorain;
3929 Pearl Rd., Lorain;
18314 Euclid Ave., Cleveland;
1501 East 276th St., Euclid;
200 East 228th St., Euclid;
7768 Lakeshore, Mentor;
34524 Lakeshore, Eastlake;
1510 Mentor Ave., Painesville;
7765 Mentor Ave., Mentor;
8504 Mentor Ave., Mentor;
4893 Robinhood Rd., Willoughby;
10333 Northfield Rd., Northfield; and
17838 Lorain Rd., Cleveland.
(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, and
furnish the requested information with respect to
rates of pay, wages, hours, normal work schedules,
reporting time, quitting time, lunch hours, and
breaktimes and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its Cleveland Area District facilities,
Cleveland, Ohio, copies of the attached notice
marked "Appendix."s3 Copies of said notice, on
forms provided by the Regional Director for Region
8, after being duly signed by Respondent's represen-
tative, shall be posted by 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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
Store Employees Union, Local 880, Retail Clerks
International Association, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
59
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 and
furnish information to the above-named Union,
as the exclusive representative of all employees in
the bargaining unit described below, with respect
to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All selling and nonselling full-time and
part-time employees, including maintenance
employees employed in the Employer's
Cleveland Area District, which consists of
the facilities listed below, but excluding all
office clerical employees, route drivers, and
professional employees, guards, and supervi-
sors as defined in the Act.
4200 Fulton Rd., Cleveland;
2400 Brookpark Rd., Cleveland;
7522 Broadview Rd., Parma;
6339 York Rd., Parma Hts.;
6879 W. 130th St., Parma Hts.;
14596 Snow Rd., Brookpark;
14131 Puritas, Cleveland;
13531 Lorain Ave., Cleveland;
1420 W. 117th St., Lakewood;
3376 Westgate Mall, Fairview Park;
22809 Lorain Ave., Fairview Park;
25980 Lorain Ave., N. Olmsted;
27180 Detroit Ave., Westlake;
1081 Meister Rd., Lorain;
3929 Pearl Rd., Lorain;
18314 Euclid Ave., Cleveland;
1501 East 276th St., Euclid;
200 East 228th St., Euclid;
7768 Lakeshore, Mentor;
34524 Lakeshore, Eastlake;
1510 Mentor Ave., Painesville;
7765 Mentor Ave., Mentor;
8504 Mentor Ave., Mentor;
4893 Robinhood Rd., Willoughby;
10333 Northfield Rd., Northfield; and
17838 Lorain Rd., Cleveland,
FOTOMAT CORPORATION
60