J. C. Penney Co., Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1976

224 N.L.R.B. 469 (N.L.R.B. 1976)

J C PENNEY COMPANY, INC 469
J. C. Penney Company, Inc and Highway and Local
Motor Freight Employees , Local 667 , affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America
Case 26-CA-5974
June 8, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a charge filed on January 23, 1976, by High-
way and Local Motor Freight Employees, Local 667,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on J C Penney Company, Inc, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 26, issued a complaint and notice of hearing
on February 5, 1976, 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 no-
tice of hearing before 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 November 25,
1975, following a Board election in Case 26-RC-
5065 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 October 10, 1975, 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 February 18, 1976, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint
On March 8, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment Subsequently, on March 17, 1976,
the Board issued an order transferring the proceed-
'Official notice is taken of the record in the representation proceeding,
Case 26-RC-5065, as the term record' is defined in Secs 10268 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, as amended
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted On March 19, 1976, Re-
spondent filed a brief in 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
In its answer to the complaint and brief in opposi-
tion to the Motion for Summary Judgment, Respon-
dent denies the representative status of the Union
based on (1) its contention that the unit is inappro-
priate, (2) its election objections, and (3) its claim
that the failure to grant a hearing on the objections
was a denial of due process In his Motion for Sum-
mary Judgment, counsel for the General Counsel
contends that Respondent seeks to relitigate issues
litigated and resolved in the representation case We
agree
Review of the record, including the representation
proceedings in Case 25-RC-5065, reveals that at the
hearing the Union and Respondent disagreed as to
the unit placement of the data processing and rec-
ords office employees whom the Union would have
excluded and the Respondent would have included
After the hearing, the parties submitted briefs on this
issue On September 12, 1975, the Acting Regional
Director issued his Decision and Direction of Elec-
tion in which he ordered an election in a unit of all
employees, excluding the data processing and rec-
ords office employees based on his finding that they
did not share a sufficient community of interest with
the other employees Respondent filed a timely re-
quest for review on the grounds that the Acting Re-
gional Director's findings were not supported by the
evidence and that his decision conflicted with estab-
lished Board precedent By telegram of October 8,
1975, the Board denied review because the request
raised no substantial issues warranting review The
election was held on October 10, 1975, and chal-
lenges were determinative 2
Respondent filed timely objections alleging, in
substance, that the Union created an atmosphere of
fear and confusion (1) by initiating and failing to
explain threatening and other statements made by
the employees prior to the election, (2) by a state-
ment at a union meeting that union officials were the
police and would ignore violence on any picket line,
2 The tally showed 34 votes cast for the Union 28 against the Union, and
20 challenged ballots
224 NLRB No 72
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (3) last-minute misrepresentations regarding the
replacement of economic strikers and the obligation
of common carriers to cross picket lines After inves-
tigation, the Regional Director, on November 25,
1975, issued his Supplemental Decision and Certifi-
cation of Representative, overruling Respondent's
objections entirely, sustaining 19 of the 20 chal-
lenges, and certifying the Union since the overruled
challenge was not determinative With respect to
Respondent's objections, the Regional Director
found that the statements were not made by union
agents and were not so aggravated as to prevent free
choice, that the alleged statement regarding union
membership of the police at the picket lines was un-
supported by the evidence, and that the alleged mis-
representations as to the consequences of a strike
were mere campaign propaganda and concerned is-
sues to which Respondent had addressed itself on
several occasions during the campaign On Decem-
ber 5, 1975, Respondent filed exceptions reiterating
its objections and seeking a hearing thereon and con-
tending, in substance, that the Regional Director's
findings were contradictory and not supported by the
evidence and that the decision conflicted with Board
precedent Alternatively, Respondent reiterated its
earlier unit contentions by resubmitting the previous-
ly denied request for review of the Decision and Di-
rection of Election By telegram of December 31,
1975, the Board denied review on the grounds that
the request raised no substantial issues It thus ap-
pears that the Respondent is attempting to relitigate
issues raised and resolved in the underlying represen-
tation case
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding 3
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 4 We shall, accordingly,
grant the Motion for Summary Judgment
3 See Pittsburgh Plate Glass Co v NLRB 313 U S 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c)
4 In its answer and brief in opposition to the Motion for Summary Judg-
ment Respondent contends that the denial of a hearing on its election
On the basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times ma-
terial herein, a Mississippi corporation with an office
and place of business located in Southaven, Missis-
sippi, where it is engaged in the warehousing and
distribution of hardware and automotive equipment
During the past 12 months, Respondent, in the
course and conduct of its business operations, pur-
chased and received at its Southaven, Mississippi, lo-
cation products valued in excess of $50,000 directly
from points located outside the State of Mississippi,
and during the same period of time Respondent sold
and shipped from its Southaven, Mississippi, location
products valued in excess of $50,000 directly to
points located outside the State of Mississippi
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
Highway and Local Motor Freight Employees, Lo-
cal 667, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers
of America , is a labor organization within the mean-
ing 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 employees involved in the following de-
objections was a denial of due process We find no merit in this contention
It is well established that parties do not have an absolute right to a hearing
on objections, and that denial of a hearing, where, as here the objections
raise no substantial and material issues , does not constitute denial of due
process GTE Lenkurt, Incorporated 218 NLRB 802 (1975), Abbott Labora
tortes, Ross Laboratories Division, 217 NLRB 859 (1975), Heavenly Valley
Ski Area a California Corporation and Heavenly Valley a Partnership 215
NLRB 734 (1974)
J C PENNEY COMPANY, INC
partments of Respondent's Southaven, Missis-
sippi, distribution center maintenance techni-
cians, custodians, picking, full case, picking, less
than full case, shipping, receiving, replenish-
ment, making, inventory and audit, unit heads
of these departments and clerks in shipping, re-
ceiving, and replenishment, but excluding rec-
ords office employees, data center employees,
office clerical employees, guards, and supervi-
sors as defined in the Act
2 The certification
On October 10, 1975, 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 26, 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 November 25, 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 October 10, 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 October 10, 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 October 10, 1975, and at all times thereafter,
refused 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
471
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 J C Penney Company, Inc, is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act
2 Highway and Local Motor Freight Employees,
Local 667, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is a labor organization within the
meaning of Section 2(5) of the Act
3 All employees involved in the following depart-
ments at Respondent's Southaven, Mississippi, distri-
bution center maintenance technicians, custodians,
picking, full case, picking, less than full case, ship-
ping, receiving, replenishment, making, inventory
and audit, unit heads of these departments and
clerks in shipping, receiving, and replenishment, but
excluding records office employees, data center em-
ployees, office clerical employees, guards, and super-
visors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
4 Since November 25, 1975, the above-named la-
bor 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 October 10, 1975, and
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
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, J C
Penney Company, Inc, Southaven, Mississippi, 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 con-
ditions of employment with Highway and Local Mo-
tor Freight Employees, Local 667, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit
All employees involved in the following de-
partments at Respondent's Southaven, Missis-
sippi, distribution center maintenance techni-
cians, custodians, picking, full case, picking,
less than full case, shipping, receiving, replen-
ishment, making, inventory and audit, unit
heads of these departments and clerks in ship-
ping, receiving, and replenishment, but exclud-
ing records office employees, data center em-
ployees, office clerical 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 Southaven, Mississippi, distribution
center copies of the attached notice marked "Appen-
dix " I Copies of said notice, on forms provided by
the Regional Director for Region 26, after being duly
signed by Respondent's representative, shall be post-
ed 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 26, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
5In 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 High-
way and Local Motor Freight Employees, Local
667, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 employees involved in the following de-
partments at Respondent's Southaven, Missis-
sippi, distribution center maintenance techni-
J C PENNEY COMPANY, INC 473
clans, custodians, picking, full case, picking, cluding records office employees, data center
less that full case, shipping, receiving, replen- employees, office clerical employees, guards,
ishment, making, inventory and audit, unit and supervisors as defined in the Act
heads of these departments and clerks in ship-
ping, receiving, and replenishment, but ex- J C PENNEY COMPANY, INC