J. W. Mays, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1980

253 N.L.R.B. 717 (N.L.R.B. 1980)

J. W. MAYS, INC.
J. W. Mays, Inc. and Independent-Union of Security
Officers. Case 29-CA-8019
December 12, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on May 19, 1980, by Inde-
pendent-Union of Security Officers, herein called
the Union, and duly served on J. W. Mays, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 29, issued a complaint
on June 24, 1980, 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 7, 1980,
following Board elections in Cases 29-RC-4856
and 29-RC-4873, the Union was duly certified as
the exclusive collective-bargaining representative
of Respondent's employees in the units found ap-
propriate;' and that, commencing on or about May
19, 1980, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On July 3,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On September 18, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 9,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. In a letter
submitted to the Board on October 9, 1980, the
Union "joined" in the General Counsel's motion
and requested certain extraordinary relief. Re-
O' fficial notice is taken of the record in the reprecentatilon proceed-
ing, Cases 29-RC-4856, 29-RC-4873, and 29-RC-4843.1, as the term
"record" i defined in Ses 102 68 and 102 h6(g) of the Bolard's Rules
and Regulations, Series 8, as amended. See 1.7I Elreor sier m. Inc., I66
NLRB 938 (1967), enfd 388 F 2d 683 (4th Cir 1968); (;olden Age Bever-
age Co., 167 NlRIB 151 (1967), enfd 415 F2d 26 (5th Cir 1969); Inter-
type 'o. v Pene/o, 29 F Supp 573 (DC Va 1967): obllert Corp. I64
NI.RI 378 (1967), nfd 397 F2d 91 (7th Cir 1968); Sec 9(d) of the
NLRA, as amended
spondent 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 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 response to
the Notice To Show Cause, Respondent in sub-
stance contends that the certification is invalid for
the reasons stated in its request for review of the
Regional Director's Decision and Direction of
Election.
A review of the record in the representation pro-
ceeding, Cases 29-RC-4856, 29-RC-4873, and 29-
RC-4843, disclosed that on March 21, 1980, after a
hearing in which all parties participated, the Re-
gional Director issued a Decision and Direction of
Election. On April 4, 1980, Respondent filed a
timely request for review of the Regional Direc-
tor's Decision in substance alleging that the Re-
gional Director erred when he found that the
Union is a labor organization within the meaning of
Section 2(5) of the Act, and is not directly or indi-
rectly affiliated with a union which admits non-
guards to membership; that the single-store unit is
appropriate; and that the sergeants and corporals
are not supervisors within the meaning of the Act.
The Board, on April 21, 1980, by telegram, denied
Respondent's request for review. An election was
held on April 24, 1980; in Cases 29-RC-4856 and
29-RC-4873 the Union won; in Case 29-RC-4843
the Union lost. On May 7, 1980, the Regional Di-
rector certified the Union as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the units found appropriate in Cases 29-
RC-4856 and 29-RC-4873.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and 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
2 SeeT PTtt,urgh Phit, (lus o .% .L.R.B. 113 U S 146. I62 (1941);
Rules and Regulations of the Board, Sees In2 67(f) and 102 6
9
(c)
253 NLRB No. 93
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. TIHI BUSINESS OF RESPONDIENT
J. W. Mays, Inc., a New York corporation, has
its principal office and place of business in Brook-
lyn, New York, and various other places of busi-
ness in the State of New York, including Manhat-
tan and Woodmere, where it is engaged in the
retail sale of consumer goods and related products.
During a representative 12-month period, Respond-
ent, in the course and conduct of its business oper-
ations, purchased and received at its places of busi-
ness products valued in excess of $50,000 directly
from points located outside the State of New York
and, during the same period of time, Respondent
received from its operations gross receipts valued
in excess of $500,000.
We find, on the basis of the foregoing, that Re-
spondent 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
Independent-Union of Security Officers is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute units appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the
Act:
Voting Unit A: All full time and regular part
time security guards employed by the Employ-
er at its Manhattan location, but excluding all
other employees, office clerical employees,
captains, lieutenants and supervisors as defined
in the Act.
Voting Unit B: All full time and regular part
time security guards employed by the Employ-
er at its Woodmere, New York location, but
excluding all other employees, office clerical
employees, captains, lieutenants and supervi-
sors as defined in the Act.
2. The certification
On April 24, 1980, a majority of the employees
of Respondent in said units, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 29, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said
units on May 7, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about May 9, 1980, and at all
times thereafter, the Union has requested Respond-
ent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described units. Commencing
on or about May 19, 1980, and continuing at all
times thereafter to date, 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 units.
Accordingly, we find that Respondent has, since
May 19, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate units, 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 oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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
718
W MAYS, INC
the appropriate unit, and, if understandings are
reached, embody such understandings in signed
agreements. 3
In order to insure that the employees in the ap-
propriate units will be accorded the services of
their selected bargaining agent for the period pro-
vided by law, we shall construe the initial period of
certification as beginning on the date Respondent
commences to bargain in good faith with the Com-
merce Company d/b/a Lamar lHotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. J. W. Mays, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Independent-Union of Security Officers is a
labor organization within the meaning of Section
2(5) of the Act.
3. The following employees of Respondent con-
stitute units appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
Voting Unit A: All full time and regular part
time security guards employed by the Employ-
er at its Manhattan location, but excluding all
other employees, office clerical employees,
captains, lieutenants and supervisors as defined
in the Act.
Voting Unit B: All full time and regular part
time security guards employed by the Employ-
er at its Woodmere, New York location, but
excluding all other employees, office clerical
employees, captains, lieutenants and supervi-
sors as defined in the Act.
4. Since May 7, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate units for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about May 19, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
3 The Union requests that the Board additionally provide extraordinary
remedial relief by ordering Respondent to apply any wages agreed to in
any subsequent agreement reached retroactively to the date of certifica-
tion, and bh awarding the Union its costs in this proceeding We deny
this request because the circumstances here do not warrant a departure
from the usual remedy of a prospectlive bargaining order, and the Re-
spondent's defenses are not frivolous See lulah Manufacluring Company.
236 NLRB 289 (1978)
bargaining representative of all the employees of
Respondent in the appropriate units, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair l'Ibor 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
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, J.
W. Mays, Inc., Manhattan and Woodmere, New
York, 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 Independent-Union
of Security Officers as the exclusive bargaining
representative of its employees in the following ap-
propriate units:
Voting Unit A: All full time and regular part
time security guards employed by the Employ-
er at its Manhattan location, but excluding all
other employees, office clerical employees,
captains, lieutenants and supervisors as defined
in the Act.
Voting Unit B: All full time and regular part
time security guards employed by the Employ-
er at its Woodmere, New York location, but
excluding all other employees, office clerical
employees, captains, lieutenants and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 units
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understandings are reached, embody such under-
standings in signed agreements.
(b) Post at its Manhattan and Woodmere, New
York, facilities copies of the attached notice
marked "Appendix."4 Copies of said notice, on
forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous 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 29,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE 10 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 Independent-Union of Security Officers
as the exclusive representative of the employ-
ees in the bargaining units described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
units described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if understandings
are reached, embody such understandings in
signed agreement. The bargaining units are:
Voting Unit A: All full time and regular
part time security guards employed by us at
our Manhattan location, but excluding all
other employees, office clerical employees,
captains, lieutenants and supervisors as de-
fined in the Act.
Voting Unit B: All full time and regular
part time security guards employed by us at
our Woodmere, New York location, but ex-
cluding all other employees, office clerical
employees, captains, lieutenants and supervi-
sors as defined in the Act.
J. W. MAYS, INC.
720