J. C. Penney Food Department

National Labor Relations Board - Board Decisions

Mar 16, 1972

195 N.L.R.B. 921 (N.L.R.B. 1972)

J. C. PENNEY FOOD DEPT.
Springfield Discount Inc., d/b/a J. C. Penney Food
Department and Retail Clerks Local Union No. 169,
chartered by Retail Clerks International Associa-
tion, AFL-CIO. Case 38-CA-1280
March 16, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on September 24, 1971, by Retail
Clerks Local Union No. 1696, Chartered by Retail
Clerks International Association, AFL-CIO, herein
called the Union, and duly served on Springfield Dis-
count Inc., d/b/a J. C. Penney Food Department,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Officer-in-
Charge for Subregion 38, issued a complaint on Octo-
ber 1, 1971, against Respondent, alleging that Re-
spondent 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
a Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on July 27, 1971, follow-
ing a Board election in Case 38-RC-989 the Union was
duly certified as the exclusive collective-bargaining rep-
resentative of Respondent's employees in the unit
found appropriate;' and that, commencing on or about
September 7, 1971, and at all times thereafter, Re-
spondent has refused, and continues to date to refuse,
to bargain collectively with the Union as the exclusive
bargaining representative, although the Union has re-
quested and is requesting it to do so. On October 8,
1971, Respondent filed its answer to the complaint ad-
mitting in part, and denying in part, the allegations in
the complaint.
On October 20, 1971, counsel for the General Coun-
sel filed directly with the Board a Motion for Summary
Judgment. Subsequently, on October 27, 1971, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent has not filed a response to
' Official notice is taken of the record in the representation proceeding,
Case 38-RC-989 , 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); 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.
921
Notice To Show Cause, which was required to be filed
on or before November 10, 1971.
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
Following an election held pursuant to a Decision
and Direction of Election issued in Case 38-RC-989 by
the Regional Director for Region 13 in which the
Union received a majority of the votes,' the Respondent
filed objections contending that the results of the elec-
tion were invalid and that a new election should be held
because the Union had polled some of the eligible vot-
ers prior to the election as to how they were going to
vote. In a Supplemental Decision and Certification of
Representative issued on July 27, 1971, the Regional
Director overruled the objections and certified the
Union as exclusive representative of the employees in
the appropriate unit. The Respondent then filed a Re-
quest for Review of the Regional Director's Supple-
mental Decision with the Board, arguing that the Re-
gional Director had not applied the current policy of
the Board governing union polling of voters prior to an
election. By telegram of August 25, 1971, the Board
denied the request as raising no substantial issues war-
ranting review.
In its answer to the complaint,' the Respondent de-
nies that a majority of the employees in the unit desig-
nated and selected the Union as their representative for
collective bargaining, since the election was invalid by
reason of the improper polling of eligible voters by
agents of the Union immediately prior to the election.
The Respondent thus also denies that the Union has
been designated and selected as the exclusive bargain-
ing representative for the unit employees. The aforesaid
issues were raised and decided by the Board in repre-
sentation Case 38-RC-989.°
On June 3, 1971, the Board denied the Respondent's Request for Re-
view of the Regional Director's Decision and Direction of Election on the
ground that it raised no substantial issues warranting review except as to the
unit placement of the lead stockman and bookkeeper and that such issue
could be resolved through the challenge procedure. There were no chal-
lenged ballots.
The Respondent admits paragraph 5(a) of the complaint which contains
a description of the appropriate bargaining unit, but it further alleges that
the Respondent should be designated Springfield Discount, Inc., d/b/a J. C.
Penney Food Department, rather than Springfield Discount, Inc., d/b/a J.
C. Penneys, as stated in the complaint. The caption of the complaint and
the unit description, infra, are amended to correct this inadvertent mistake.
In his Supplemental Decision and Certification of Representative, the
Regional Director concluded that the Union's polling of certain eligible
voters as to how they were going to vote in the election did not warrant
setting aside the election, even assuming that all eligible employees were
(Cont.)
195 NLRB No. 157
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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 proceedings
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation 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 prop-
erly 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
1. THE BUSINESS OF THE RESPONDENT
Springfield Discount Inc., d/b/a J. C. Penney Food
Department, is a Nebraska corporation, engaged in the
retail sale of grocery and other related goods in its retail
supermarket at 31st Street and South Grand Boule-
vard, Springfield, Illinois . It is anticipated that the Re-
spondent's gross volume of sales will be valued in ex-
cess of $500,000 during the next 12 months, although
sales have not yet reached that level since the Respond-
ent has opened its business only within the past 12
months. Since the opening , the Respondent in the
course of its business has purchased and caused to be
transported to its Springfield store, goods and materials
valued in excess of $50,000, which came from outside
the State of Illinois.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
polled . In our denial of the Respondent 's request for review , we agreed with
that conclusion and we now reaffirm it . The situation in the instant case,
involving alleged polling by a union, is clearly distinguishable on the facts
from that in Offner Electronics, Inc., 127 NLRB 991, in which the polling
was done by the employer . In any event, the dictum in the precedent of
Offner Electronics, Inc., relied on by the Respondent , was not intended to
be applicable to noncoercive polling by a union, and to the extent it might
be so construed , it is overruled.
Chairman Miller concurs in the result, but would depart further from the
Offner decision than would his colleagues. He is of the view that polling by
either party ought not to require, per se, that an election be set aside, and
would invalidate an election only if the factual context demonstrated a
violation of employee rights as, for example , if the polling were shown to
have been used as an instrument of illegal employer interference such as
unlawful interrogation , or of union restraint or coercion.
' 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).
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Local Union No. 1696, Chartered by
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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time and all regular part-time employees em-
ployed in the Springfield Discount Inc., d/b/a J. C.
Penney Food Department, located at 31st Street and
South Grand Boulevard, Springfield, Illinois, including
the head stockmen and bookkeeper; but excluding the
store manager, comanager, produce manager, grocery
manager, meat department employees working exclu-
sively in the meat market, guards, and professional
employees as defined in the Act.
2. The certification
On June 18, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 13 designated the Union as their representa-
tive 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 July 27, 1971, 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 August 28 , 1971, and at all
times thereafter , the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit . Commencing on or about
September 7, 1971, and continuing at all times there-
after to date, the Respondent has refused , and contin-
ues 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
September 7, 1971, and at all times thereafter , refused
to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
J. C. PENNEY FOOD DEPT. 923
and that, by such refusal, Respondent 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 operations
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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences 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; 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. Springfield Discount Inc., d/b/a J. C. Penney
Food Department, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Clerks Local Union No. 1696, Chartered by
Retail Clerks International Association, AFL-CIO, is
a labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time employees em-
ployed in the Springfield Discount Inc., d/b/a J. C.
Penney Food Department, located at 31st Street and
South Grand Boulevard, Springfield, Illinois, including
the head stockmen and bookkeepers; but excluding the
store manager, comanager, produce manager, grocery
manager, meat department employees working exclu-
sively in the meat market, guards, and professional
employees as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since July 27, 1971, the above-named labor orga-
nization has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about September 7, 1971, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respond-
ent 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering 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 engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Springfield Dis-
count Inc., d/b/a J. C. Penney Food Department, 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 Local Union No.
1696, Chartered by Retail Clerks International As-
sociation, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appropriate
unit:
All full-time and regular part-time employees em-
ployed in the Springfield Discount Inc., d/b/a J. C.
Penney Food Department, located at 31st Street and
South Grand Boulevard, Springfield, Illinois, including
the head stockmen and bookkeeper; but excluding the
store manager, comanager, produce manager, grocery
manager, meat department employees working exclu-
sively in the meat market, guards, and professional
employees 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.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its retail supermarket at 31st and South
Grand Boulevard , Springfield , Illinois, copies of the
attached notice marked "Appendix ."6 Copies of said
notice, on forms provided by the Officer-in-Charge for
Subregion 38, after being duly signed by Respondent's
representative , shall be posted by Respondent immedi-
ately 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 Officer-in-Charge for Subregion 38, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event 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 be changed to 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 Local Union No. 1696, Chartered by Retail
Clerks International Association, 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 Sec-
tion 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 de-
scribed below , with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment , and, if an understanding is reached , embody
such understanding in a signed agreement. The
bargaining unit is:
All full-time and all regular part-time em-
ployees employed in the Springfield Discount
Inc., d/b/a J. C. Penney Food Department,
located at 31st Street and South Grand
Boulevard, Springfield , Illinois , including the
head stockmen and bookkeeper; but exclud-
ing the store manager , comanager , produce
manager , grocery manager , meat department
employees working exclusively in the meat
market , guards , and professional employees
as defined in the Act.
SPRINGFIELD
DISCOUNT INC., D/B/A
J. C. PENNEY FOOD
DEPARTMENT
(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 compliance
withi its provisions may be directed to the Board's
Office, Savings Center Tower, 10th Floor, 411 Hamil-
ton Boulevard, Peoria, Illinois 61602, Telephone 309-
673-9282.