J. C. Penney Co., Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1972

200 N.L.R.B. 226 (N.L.R.B. 1972)

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. C. Penney Company , Inc., Truck Service Center
No. 4662 and District Lodge No. 52 of the
International Association of Machinists and Aero-
space Workers , AFL-CIO. Case 9-CA-7105
November 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on June 14, 1972, by District
Lodge No. 52 of the International Association of
Machinists and Aerospace Workers, AFL-CIO,
herein called the Union, and duly served on J. C.
Penney Company, Inc., Truck Service Center No.
4662, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 9, issued a
complaint on June 28, 1972, 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 1 were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 2, 1972,
following a Board election in Case 9-RC-9408 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 2 and that, commenc-
ing on or about June 5, 1972, 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 July 7, 1972, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On August 4, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 16,
1972, 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 failed to file a response to Notice To
Show Cause.
i The title of "Trial Examiner" was changed to "Adnnmstrative Law
Judge" effective August 19, 1972.
2 Official notice is taken of the record in the representation proceeding,
Case 9-RC-9408, as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C A 4, 1968),
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, Respondent denies
the appropriateness of the unit, and, consequently,
the validity of the certification of the Union as the
exclusive bargaining representative of the employees
in the appropriate unit.
The record in Case 9-RC-9408 reflects that, after a
hearing, the Regional Director on March 23, 1972,
issued his Decision and Direction of Election
finding, in agreement with the Union and contrary to
the Respondent, an appropriate unit of all employ-
ees, excluding all office clerical employees and
commercial sales representatives. Respondent there-
upon filed with the Board a timely request for
review in which it reiterated its arguments that the
work of the office clerical employees and the
commercial sales representatives was directly and
closely integrated with the function of Respondent's
truck service center, and warranted their inclusion in
the unit. On April 11, 1972, the 'Board denied the
Respondent's request as it raised no substantial
issues warranting review.
It thus appears that by its answer to the complaint
Respondent is attempting to relitigate the unit issue
raised and determined in the previous representation
proceeding.
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
Golden Age Beverage Co, 167 NLRB 151; Intertype Co. v. Penello, 269
F.Supp 573 (D.C Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d
91 (C.A. 7, 1968); Sec. 9(d) of the NLRA
3 See Pittsburgh Plate Glass Co. v. N.LR B, 313 U.S. 146, 162 ( 1941),
Rules and Regulations of the Board, Secs. 102.67 (f) and 102 69(c)
200 NLRB No. 25
J. C. PENNEY COMPANY, INC. 227
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
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation operating a
truck service center at Columbus, Ohio, where it is
engaged in the sale and installation of truck parts
and in performing maintenance services on customer
trucks.
During the last 12 months, a representative period,
Respondent purchased goods valued in excess of
$50,000 from suppliers located outside the State of
Ohio, causing said goods to be shipped directly to its
Columbus, Ohio, facility.
During the same representative period, Respon-
dent's gross dollar volume of sales or performance of
services exceeded $500,000.
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
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 May 2, 1972, 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 May 22, 1972, 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 5, 1972, 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 5, 1972, 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.
District Lodge No. 52 of the International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All employees employed by Respondent at its
Truck Service Center No. 4662, 4855 Groveport
Pike, Columbus, Ohio, excluding all office clerical
employees, commercial sales representatives, and
all guards, professional employees, and supervi-
sors as defined in the Act.
2. The certification
On April 21, 1972, 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 9, designated the Union as their
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,
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 Respondentcommenc-
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
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., Truck Service
Center No. 4662, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. District Lodge No. 52 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees employed by Respondent at its
Truck Service Center No. 4662, 4855 Groveport Pike,
Columbus, Ohio, excluding all office clerical employ-
ees, commercial sales representatives, and all guards,
professional employees, 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 May 2, 1972, the above-named labor
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 5, 1972, 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
Relations Board hereby orders that Respondent,
J. C. Penney Company, Inc., Truck Service Center No.
4662, 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 District Lodge No.
52 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All employees employed by the Respondent at
its Truck Service Center No. 4662, 4855 Grove-
port Pike, Columbus, Ohio, excluding all office
clerical employees, commercial sales representa-
tives, and all guards, professional employees, 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 Columbus, Ohio, Truck Service
Center copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by
the Regional Director for Region 9, 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 9, 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 nonce 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."
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
J. C. PENNEY COMPANY, INC. 229
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
All employees employed by Respondent
at its Truck Service Center No. 4662, 4855
Groveport Pike, Columbus, Ohio, excluding
all office clerical employees, commercial
sales representatives , and all guards, profes-
sional employees , and supervisors as defined
in the Act.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with District
Lodge No. 52 of the International Association of
Machinists and Aerospace Workers, 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
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:
J. C. PENNEY COMPANY,
INC., TRUCK SERVICE
CENTER No. 4662
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not; be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice,or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.