Gimbel Bros., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1977

233 N.L.R.B. 1235 (N.L.R.B. 1977)

GIMBEL BROTHERS, INC.
Gimbel Brothers, Inc. and Warehouse Employees
Local 169, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 4-CA-8666
December 14, 1977
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT AND
REMANDING PROCEEDING TO
REGIONAL DIRECTOR
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On June 29, 1977, the Acting Regional Director for
Region 4 of the National Labor Relations Board
issued a complaint and notice of hearing in the
above-entitled proceeding, alleging that Respondent
has engaged in and is engaging in certain unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (5) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Subsequently, Respondent filed an answer admitting
in part, and denying in part, the allegations of the
complaint.
Thereafter, on September 26, 1977, Respondent
filed a Motion for Summary Judgment and a brief in
support thereof, with exhibits attached. Respondent
requests that the operative paragraph of the com-
plaint be dismissed pursuant to Spielberg Manufac-
turing Company, 112 NLRB 1080 (1955), on the
ground that the sole issue has already been deter-
mined pursuant to an arbitrator's award. In the
I Respondent's contention that the case should be dismissed pursuant to
Spielberg Manufacturing Co., supra, is without merit. The arbitrator's award
dealt with a different event, albeit superficially similar, to which the award
was specifically and necessarily limited. It cannot decide this case. The
arbitrator's award dealt with Respondent's contracting with a mattress
manufacturer for direct delivery to Respondent's customers. The instant
alternative, Respondent requests that the motion be
granted on the ground that as a matter of law
Respondent was not required to bargain over its
decision to direct ship mattresses during the life of
the 1976-79 contract as the matter had been fully
negotiated by the parties.
On September 30, 1977, the Board issued an order
transferring the proceeding to itself and a Notice To
Show Cause why Respondent's Motion for Summary
Judgment should not be granted. Thereafter, the
General Counsel and the Charging Party each filed a
memorandum opposing Respondent's Motion for
Summary Judgment and Respondent filed a brief in
response to the General Counsel's opposition.
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.
The Board has duly considered the matter and is of
the opinion that there are issues of fact which may
best be resolved at a hearing conducted before an
Administrative Law Judge.l
ORDER
It is hereby ordered that the Respondent's Motion
for Summary Judgment in the above-entitled pro-
ceeding be, and it hereby is, denied.
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the
Regional Director for Region 4 for further appropri-
ate action.
proceeding involves Respondent's contracting with another mattress
company for direct shipment, but, in contrast to the facts before the
arbitrator, with a company whose mattresses Respondent's employees had
until recently been delivering. Furthermore, we find that there are
unresolved factual issues concerning whether the negotiations decided
whether Respondent could direct ship in these circumstances.
233 NLRB No. 175
1235