251 N.L.R.B. 827 (N.L.R.B. 1980)

Jamesway Corp.

National Labor Relations Board - Board DecisionsSep 17, 1980

251 N.L.R.B. 827 (N.L.R.B. 1980)

17 .lamesway ar~d Agri- cultural Implement Workers of America. Case 3(b) Na- CHAIRMAN FANNING PENELLO main- 8(a)(5) (1) Na- Di- should em- was corn- 8(a)(5) and con- (1) 2(6) Labor duct 22, and complaint and notice of hearing before an ad- served on the With respect to the unfair labor practices, the to 10, of fact. Finally, Respondent maintains that 1980, following a Board election in Case 4-RC- 13620, the Union was duly certified as the e=clu- its both Region- sive representative of Re- a1 of spondent's employees in the unit found appropri- ate;' and that, commencing on or about February to has Election. In the Motion for Summary refuse, to bargain the General the as the exclusive bar- attempt- gaining representative, although the Union has re- to relitigate so. May 27, by the Board in the underlying represents- complaint fion case. We agree with the General Counsel. admitting in part, and denying in part, the underly- General Coun- that on May 24, 1979, after sel filed directly with the ~~~~d a Motion for sum- Elec- Judgment. On "Iy 71 1980' Ihe motion Ior prrmtsslon jssued an transferring the proceeding evidence Bo;lrd to T o Show Cause why cons~der before Act~ng D~rector's Oh- the Motion for Summary Judg- jrcl~ons the 18. 1971. Thc (ieneral ha\ n responsr memorandum In oppo\ition the Ciell- Omcial notice reprtsrntatlon era1 Counsel'c In whlch tlwh Ing. 4-RC-13260, Secs. oppo\e Respondent'% motton supplrmcl~t thc Gcner;rl 102.69(g) or Rule\ Ser~rs 8, Coun\el that throughout thih Board See E1cctrocystem.c. Itic.. 166 f1967), 388 F.Zd 683 properly 10 \el Ibrlh ill Scc IO?.h9(g) of ~IIL (4th Cir. Golden CO., 167 151 (1967). enfd. Repulnlio~ls. :lprrc with thc (~ictrcr;ll Coun\c.l U'c F.2d Intertypc Co. P~~nr l lo . k Supp. grant Respc,ndcnt's concludc that thc r~.cclrd ;I\ \upplemr~~ted (D.C.Va. Follrtr Corp.. I64 (1967). enfd. F.2d dves our decisl~m to pra111 Cie11crill C.CTLIII\CI'\ MII~IOII I;:r Sec. 9(d) NL.RA, amended. Judgment 9JAMESWAY CORPORATION Corporation District 65, International Union, United Automobile, Aerospace and 4-CA-10856 August 27, 1980 DECISION AND ORDER BY AND MEMBERS AND TRUESDALE Upon a charge filed on February 11, 1980, by District 65, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, herein called the Union, and duly served on Jamesway Corporation, herein called Respondent, the General Counsel of the tional Labor Relations Board, by the Regional rector for Region 4, issued a complaint and notice of hearing on May 12, 1980, against Respondent, alleging that Respondent had engaged in and engaging in unfair labor practices affecting merce within the meaning of Section and Section and (7) of the National Relations Act, as amended. Copies of the charge ministrative law judge were duly parties to this proceeding. complaint alleges in substance that on January collective -bargaining 4, 1980, and at all times thereafter, Respondent refused, and continues to date to collectively with Union quested and is requesting it to do On 1980, Respondent filed its answer to the tions in the complaint. On June 27, 1980, counsel for the the Board and a Notice is taken of the record in the proceed- Case as the term "record" is defined in 102.68 and the Board's and Regulations. as amended. LTV N L R B 938 enfd 1968); Age Beverage N L R B 415 26 (5th Cir. 1969); v. 269 573 1967): NLRB 378 397 91 (7th Cir. 1968); of the as 251 NLRB No. 126 ment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Pursuant to the provisions of Section of the National Labor Relations Act, as amended, the 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 in its response to the Notice To Show Cause, Respondent tains that certification of the Union was invalid. Respondent admits its refusal to bargain, but denies that its refusal violated Section and of the Act. Specifically, Respondent contends that the Union not have been certified as the collec- tive-bargaining representative of Respondent's ployees because the Regional Director directed an election in an inappropriate unit. Respondent also claims that certification of the Union was improper because the Union engaged in objectionable that affected the results of the election held on June 1979. Respondent further argues that the Regional Director did not conduct a thorough investigation of its objections to the election and improperly denied Respondent a hearing on what Respondent believes have been substantial issues the Board did not review the entire record2 before denying requests for review of the Director's Decision and Direction Election and the Acting Regional Director's Supplemental Decision on Challenged Ballots and Objections Judgment, Counsel argues that there are no issues requiring a hearing and that Respondent is ing issues that were raised and deter- mined The record, including the record in the ing representation case, Case 4-RC-13620, shows a hearing, the Regional Director issued a Decision and Direction of Respondent has tiled a special to supplement the record in this proceeding by introducing that the did not the entire record it denied review of the Re- gional Supplemental Decision on Challenged Ballots and to Electron on December Counsel filed to Respondent's to Motion for Summary Judgment. he not to record The argues, howevrr. litigation the has adhered the procedures Board's Rules and We motion but not affect the Summary 918 tion. Union. challenged, On elec- t i ~ n . ~ alleged, uliu, served proun- :' 28. 1971). lJniol~ al\o l>h~eclion\ af- k c l ~ n g thr rc\ult\ o f clectlon. Llnion inrcr olio. that Rr - \pondcnt holh threatelled prnmlhcd hencfits lo In I<\ ctic<,ur;tge 1 0 votc agalnat thc Clnion, ci~nductcd sur- vc~llancc (11' Lllc~wn UII~IIII d~scrim~nalrd In ilc (real- men! rif unlon \upprirtrr\ ;Imt,llg it, cmployccs. The Rcglorlal D ~ r c c t ~ , r that hcdrilig v.(~uld hc nccecvary reri~lve lssuc\ ra~ \ed the Ullion'\ ;illegatiol~\. hut po \ lp (~~ lcd the aft~.r n rcw\ed b:illot\ was lakc11 S~ncc Ihc U ~ l l o n rccelved m;ljorlly of vote\ 1111 fccond oh j rc t~ ( i t~ \ werc diwiisaed R c g ~ o l ~ a l Dlrci.lor Direc- ., case. ~reviouslv sne- cia1 8(a)(5) relitigate p r ~ c e e d i n g . ~ $500,000. $50,000 direct1 ' Sec Pirr\hurgh Plurr Glu\r Co, N L R . H . 1 3 L1.S. 146. I 6 2 Kt . j iu l ;~ t~o~~s Ihc Sccf. IO?.67(1) and IOZ.h9(c). DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 6, 1979, Respondent filed with the Board a request for review of the Decision and Di- rection of Election in which it contended that the unit improperly included an employee Respondent believed to be a supervisor and two employees Re- spondent believed to be temporary workers. On June 21, 1979, the Board denied the request for review. On June 22, 1979, by direction of the Regional Director, an election by secret ballot was conduct- ed at Respondent's facility. The tally of ballots showed that, of approximately 69 eligible voters, 63 cast ballots. of which 28 were cast for, and 29 against, the Six ballots were a sufficient number to affect the results of the elec- tion. June 29, 1979. Respondent filed timely objec- tions to conduct affecting the results of the The objections inter that, during a substantial part of the voting session, Mary Straus, an eligible voter and member of the union organizing committee, engaged in election- eering within 20 feet of the door to the stockroom (hat as the polling place; that, in the months prior to the election, union supporters among Re- spondent's employees and their families threatened and intimidated eligible voters and management personnel; that the Union threatened to increase initiation fees for nonsupporters should it win the election; and that on the day of the election ion employees distributed a document to eligible voters that contained substantial misrepresentations concerning Respondent's intention to reduce its work force, to which Respondent had no opportu- nity to respond. On October 26, 1979, the Acting Regional Director issued a Supplemental Decision on Challenged Ballots and Objections to Election in which he found Respondent's objections without merit, overruled challenges to four of the six chal- lenged ballots, and ordered that the four ballots be opened and counted. On November 6, 1979, Re- spondent filed with the Board a request for review of the Acting Regional Director's Supplemental Decision on Challenged Ballots and Objections to Election. The Board denied the request on Decem- ber 18, 1979. O n June the had filed to conduct the T h e claimed, had and employees order them had adhcrcntc, and had found a to the factual hy hearing until tally of a the counted the tally. hy the Thereafter, a revised tally of ballots was issued which showed that a majority of votes had been cast for the Union. Accordingly, the Regional Di- rector certified the Union on January 10, 1980, as the exclusive collective-bargaining representative of Respondent's employees in the appropriate unit. On January 23, 1980, the Union requested that Respondent bargain with it concerning the rates of pay, wages, hours, and other terms and conditions of employment of unit employees. On or about February 4, 1980, Respondent refused, and contin- ues to refuse, to recognize and bargain with the Union because of its belief that the Regional tor directed an election in an inappropriate unit and failed adequately to consider its objections to the election held on June 22, 1979. Thus, i t appears that Respondent is attempting to raise in this pro- ceeding issues which were raised and determined in the underlying representation It is well settled that in the absence of newly dis- covered o r unavailable evidence o r circumstances a respondent in a proceeding al- leging a violation of Section is not entitled t o issues which were o r could have been litigated in a prior representation All issues raised by Respondent in this proceed- ing were o r could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered o r 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. O n the basis of the entire record, the Board makes the following: I . THE BUSINESS OF RESPONDENT Respondent is a New York corporation with a department store located in Hammonton, New Jersey, where it is engaged in the retail sales busi- ness. During the past year, a period representative of all times material to this proceeding, Respond- ent, in the course and conduct of its operations at the Hammonton store, has derived gross revenues in excess of During the same period, Re- spondent purchased and received goods valued in excess of y from points located out- side the State of New Jersey. (1941). Rules and of v Board. 2(6) 11. 2(5) Ill. 9(b) of ice Ham- 9(a) 8(a)(5) (1) IV. 111, 8(a)(5) (1) sigped the.ap- Mar-Jac Cornpony. Znc., (1962), F.2d 1964), Burnett (1964), F.2d Commencing On Or 23, 1980, and 5 at all times thereafter, the Union has requested Re- inter alia, that pay spondent to bargain collectively it as the ex- litigation memorandum clusive collective-bargainillg representative of all fees the employees in the above-described unit. Corn- mo~ion. rel~ef mencing on or 41 1980p and by ctrcumstances tinuing all times to imposition ex~raordinury JAMESWAY CORPORATION 919 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 and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. THE LABOR ORGANIZATION INVOLVED District 65, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, is a labor organization within the meaning of Section of the Act. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section of the Act: All full-time and regular part-time employees, including leased department employees, clerical employees, department heads, stock- room employees, head cashier, C.I.E. employ- ees, and TWX operator at Respondent's monton, New Jersey, store; excluding manage- ment trainees, casual and seasonal employees, security employees, leased department manag- ers, head receiver, guards and supervisors within the meaning of the Act, and First Fed- eral Savings & Loan Association employees. 2. The certification On June 22, 1979, 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 4, 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 unit on January 10, 1980, and the Union continues to be such exclusive representative within the meaning of Section of the Act. B. The Request To Bargain and Respondent's Refusal about January at thereafter date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since February 4, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section and of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section above, occurring in connection with its oper- ations described in section I, 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 and 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 agreement. In order to insure that the employees in propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Poultry 136 NLRB 785 (1962); Commerce Company d / b / a Lamar Hotel, 140 NLRB 226, 229 enfd. 328 600 (5th Cir. cert. denied 379 U.S. 817; Construction Company, 149 NLRB 1419, 1421 enfd. 350 57 (10th Cir. 1965). The Charging Party has filed a motion for special relief requesting, Respondent the Charging Party's attorney's fees and expenses Respondent has filed a in opposition to the Charging Party's motion for special relief and has requested an award of attorney's and expenses incurred in contesting the Charging Party's The General Counsel has filed a motion in opposition to the Charging Party's motion. We hereby deny the special requested the Charging Party and by Respondent. as the of this case do not warrant the of remedies. 1. 2(6) 2(5) & 9(b) organization 9(a) 8(a)(5) 8(a)(l) 2(6) 10(c) 1. 65, office C.1.E Ham- I I manag- ! Fed- i era1 & I 1 I 1 t i Act: i 1 L s I "Appendi~."~ In notice United 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board, upon the basis of the foregoing facts and the entire record, makes the following: Jamesway Corporation is an employer en- gaged in commerce within the meaning of Section and (7) of the Act. 2. District 65, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, is a labor organization within the meaning of Section of the Act. 3. All full-time and regular part-time employees, including leased department employees, office clerical employees, department heads, stockroom employees, head cashier, C.I.E. employees, and TWX operator at Respondent's Hammonton, New Jersey, store; excluding management trainees, casual and seasonal employees, security employees, leased department managers, head receiver, guards and supervisors within the meaning of the Act, and First Federal Savings Loan Association employ- ees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion of the Act. 4. Since January 10, 1980, the above-named labor 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 of the Act. 5. By refusing on or about February 4, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 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 of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section and (7) of the Act. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with District Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time and regular part-time employees, including leased department employees, clerical employees, department heads, stock- room employees, head cashier, employ- ees, and TWX operator at Respondent's monton, New Jersey, store; excluding manage- ! ment trainees, casual and seasonal employees, security employees, leased department ers, head receiver, guards and supervisors within the meaning of the Act, and First Savings Loan Association employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- i 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 (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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Hammonton, New Jersey, store copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 4, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. lations Board hereby orders that the Respondent, the event that this Order is enforced by a Judgment of a United Jamesway Corporation, Hammonton, New Jersey, States Court of Appeals, the words in the reading "Posted by its officers, agents, successors, and assigns, shall: Order of the National Labor Relations Board" shall read "Posted Pursu-ant to a Judgment of the States Court of Appeals Enforcing an Cease and desist from: Order of the National Relations Board." 1 condi- WILL repre- & JAMESWAY CORPORATION 92 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with District 65, International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, as the exclusive representative of the employees in the bargain- ing unit 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 sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employ- ees, including leased department employees, office clerical employees, department heads, stockroom employees head cashier, C.I.E. employees, and TWX operator at the Em- ployer's Hammonton, New Jersey , store; excluding management trainees, casual and seasonal employees, security employees, leased department managers, head receiver, guards and supervisors within the meaning of the Act, and First Federal Savings Loan Association employees.