Globe Discount City

National Labor Relations Board - Board Decisions

Jan 3, 1975

216 N.L.R.B. 21 (N.L.R.B. 1975)

GLOBE DISCOUNT CITY 21
Walgreen Louisiana Co., Inc ., d/b/a Globe Discount
City and Retail Clerks International Association,
Local 1691 , AFL-CIO. Case 15-CA-5395
January 3, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
Upon a charge filed on August 20, 1974, by Retail
Clerks International Association, Local 1691,
AFL-CIO, herein called the Union, and duly served
on Walgreen Louisiana Co., Inc., d/b/a Globe
Discount City, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 15,
issued a complaint on September 5, 1974, against
Respondent, 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
before an Administrative 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 April 18, 1974,
following a Board election in Case 15-RC-5207 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 June 10, 1974, 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 September 16, 1974, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint and raising two
affirmative defenses.
On September 19, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 4,
1974, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause.
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 Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause the Respondent, in effect,
attacks the validity of the Union's majority status
and certification because the unit determined was
inappropriate and because of the failure to set aside
the election on Respondent's objections. Respondent
now requests a hearing. The General Counsel
contends that the Respondent is raising issues which
were or could have been raised in the representation
proceeding and is precluded from relitigating them
herein . We agree with the General Counsel.
Our review of the record herein shows that, after a
hearing, the Regional Director on September 19,
1973, issued a Decision and Direction of Election
finding, contrary to the Respondent, that the
Respondent and its two licensees (Zale and Meldis-
co) were joint employers and directing an election in
a unit of employees excluding those of Meldisco
whom the Respondent would have included. The
Respondent filed a timely request for review reiterat-
ing its joint employer and unit contentions. On
October 11, 1973, the Board granted the request for
review because it raised substantial issues warranting
review and stayed the election pending a Board
decision. Thereafter on October 31, 1973, the Board
granted the Union's motion to order the election and
impound ballots and permitted the Meldisco employ-
ees to vote subject to challenge. On November 29,
1973, the election was held and ballots impounded;
the Respondent filed timely objections to the
election.
On February 22, 1974, the Board issued a Decision
on Review in which it affirmed the Regional
Director's joint employer finding, determined that a
unit including the Meldisco employees was appropri-
ate, and directed that the impounded ballots be
opened and counted, including the Meldisco employ-
ees' ballots. The tally of ballots showed that 61 votes
were cast for, and 37 against, the Union with 10
ballots challenged. The Regional Director then
investigated the Respondent's objections which
alleged, in substance, that (1) the Union threatened
employees, (2) the Union improperly promised a
waiver of initiation fees , and (3) the Board agent
failed to maintain the security of the ballots and
polling place. The Regional Director, on April 18,
1 Official notice is taken of the record in the representation proceeding , 1968), Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
Case 15-RC-5207, as the term "record" is defined in Secs . 102.68 and (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1957);
102.69(f) of the Board's Rules and Regulations , Series 8 , as amended . See Follett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (C.A. 7, 1968); Sec.
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd . 388 F .2d 683 (C.A. 4, 9(d) of the NLRA.
216 NLRB No. 6
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1974, issued a Supplemental Decision and Certifica-
tion of Representative in which he found that (1) no
evidence was submitted by Respondent as to alleged
union threats during the campaign or the election, (2)
the evidence failed to establish that the Union made
improper promises to waive initiation fees, and (3)
the evidence did not sustain the allegation that the
Board agent failed to maintain the security of the
ballots and polling place. Accordingly, the Regional
Director found that the objections raised no substan-
tial or material issues , overruled the objections, and
certified the Union.
Thereafter, the Respondent filed a Request for
Review of the Regional Director's Supplemental
Decision and Certification of Representative in
which it again raised its objection as to the promised
waiver of initiation fees. The Board on June 3, 1974,
denied the Respondent's request for review as raising
no substantial issues warranting review.
It thus appears that the Respondent is attempting
to raise herein issues which were raised and resolved
in the underlying representation case. With respect to
the request for a hearing on the representation case
issues , which request is raised for the first time in the
response, we note that it is well established that
parties do not have an absolute right to a hearing.2
Absent the presentation by Respondent of a prima
facie showing of substantial issues warranting a
hearing-a showing not made herein-it is clear a
hearing is not required. Accordingly, the Respon-
dent's request for a hearing is denied.
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.3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation 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 properly 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
Respondent, a subsidiary of Walgreen Company,
Inc., an Illinois corporation operating retail drug
stores, discount stores, and restaurant type opera-
tions in various States of the United States, is
engaged in the retail sale of discount drugs and
related items at its Baton Rouge, Louisiana, facility,
located at 5905 Florida Boulevard, the only facility
involved herein. During the past 12 months, Respon-
dent received in excess of $500,000 from the retail
sale to its customers of the above-named products
and during the same period, Respondent received in
excess of $50,000 of the above-named products from
its suppliers located at points directly outside the
State of Louisiana.
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 Clerks International Association, Local
1691, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and all regular part-time selling
and nonselling retail store employees of the
Employer at its retail operation known as Globe
Shopping City at 5905 Florida Boulevard, Baton
Rouge, Louisiana, including employees of the
license departments operating under license
agreements with Zale-Service Louisiana, Inc., and
Meldisco, Division of Melville Shoe Corporation;
excluding employees of Uniroyal Merchandising
Company, Inc.; employees of Baton Rouge
Discount, Inc., d/b/a Hinky Dinky; pharmacists
and pharmacist interns ; the Globe Store manager,
hard line manager , soft line manager, inventory
2 Richmond Division of Pak- Well, 206 NLRB 260 (1972); Big Three
Industries, Inc, Formerly Big Three Industrial Gas & Equipment Co., 214
NLRBNo 104(1974).
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).
GLOBE DISCOUNT CITY
control manager, office manager, drug depart-
ment manager , appliance department manager,
Sun Room manager, camera department manag-
er, and management trainees; the Zale-Service
Louisiana, Inc., store manager; seasonal and
temporary employees, office clerical employees,
store detectives and guards, and supervisors as
defined in the Act.
2. The certification
On November 29, 1973, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 15, designated the
Union as their representative 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 April
18, 1974, 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 June 10, 1974, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about June 10, 1974, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since June 10, 1974, 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 the Respondent set forth in section
III, above, occurring in connection with its opera-
tions described 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 com-
merce.
V. THE REMEDY
23
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 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);
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. Walgreen Louisiana Co., Inc., d/b/a Globe
Discount City, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks International Association, Local
1691, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and all regular part-time selling
and nonselling retail store employees of the Employ-
er at its retail operation known as Globe Shopping
City at 5905 Florida Boulevard, Baton Rouge,
Louisiana, including employees of the license depart-
ments operating under license agreements with Zale-
Service Louisiana, Inc., and Meldisco, Division of
Melville Shoe Corporation; excluding employees of
Uniroyal Merchandising Company, Inc.; employees
of Baton Rouge Discount, Inc., d/b/a Hinky Dinky;
pharmacists and pharmacist interns; the Globe Store
manager, hard line manager, soft line manager,
inventory control manager, office manager, drug
department manager, appliance department manag-
er, Sun Room manager, camera department manag-
er, and management trainees; the Zale-Service
Louisiana, Inc., store manager; seasonal and tempo-
rary employees, office clerical employees, store
detectives and 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 April 18, 1974, the above-named labor
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization has been and now is 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 June 10, 1974, 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, 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)(1) 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 Respondent,
Walgreen Louisiana Co., Inc., d/b/a Globe Discount
City, its officers, 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 Retail Clerks Inter-
national Association, Local 1691, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and all regular part-time selling
and nonselling retail store employees of the
Employer at its retail operation known as Globe
Shopping City at 5905 Florida Boulevard, Baton
Rouge, Louisiana, including employees of the
license departments operating under license
agreements with Zale-Service Louisiana, Inc., and
Meldisco, Division of Melville Shoe Corporation;
excluding employees of Uniroyal Merchandising
Company, Inc.; employees of Baton Rouge
Discount, Inc., d/b/a Hinky Dinky; pharmacists
and pharmacist interns; the Globe Store manager,
hard line manager, soft line manager , inventory
control manager, office manager, drug depart-
ment manager , appliance department manager,
Sun Room manager, camera department manag-
er, and management trainees ; the Zale-Service
Louisiana, Inc., store manager ; seasonal and
temporary employees, office clerical employees,
store detectives and 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 Baton Rouge, Louisiana, operation
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representative, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 International Association, Local 1691,
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 representa-
tive of all employees in the bargaining unit
GLOBE DISCOUNT CITY
described below , with respect 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 . The bargaining unit is:
All full-time and all regular part-time
selling and nonselling retail store employees
of the Employer at its retail operation
known as Globe Shopping City at 5905
Florida Boulevard , Baton Rouge , Louisiana,
including employees of the license depart-
ments operating under license agreements
with Zale-Service Louisiana, Inc., and Mel-
disco, Division of Melville Shoe Corpora-
tion ; excluding employees of Uniroyal Mer-
chandising Company, Inc.; employees of
25
Baton Rouge Discount, Inc., d/b/a Hinky
Dinky; pharmacists and pharmacist interns;
the Globe Store manager , hard line manag-
er, soft line manager, inventory control
manager, office manager, drug department
manager, appliance department manager,
Sun Room manager, camera department
manager, and management trainees; the
Zale-Service Louisiana, Inc., store manager;
seasonal and temporary employees, office
clerical employees , store detectives and
guards, and supervisors as defined in the
Act.
WALGREEN LOUISIANA
CO., INC ., D/B/A GLOBE
DISCOUNT CITY