Levitz Furniture Co. of Santa Clara, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 417 (N.L.R.B. 1974)

LEVITZ FURNITURE CO. OF SANTA CLARA, INC. 417
Levitz Furniture Company of Santa Clara , Inc. and
Retail Store Employees Union, Local 428, Retail
Clerks International Association, AFL-CIO. Case
20-CA-8632
June 12, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on September 28, 1973, by
Retail Store Employees Union, Local 428, Retail
Clerks International Association, AFL-CIO, herein
called the Union, and duly served on Levitz
Furniture Company of Santa Clara, Inc., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 20, issued a complaint on
October 15, 1973, 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
notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 17, 1973,
following a Board election in Case 20-RC-10447 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about September 21, 1973, 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 October 24, 1973, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint, and asserting an
affirmative defense.
On November 19, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on Decembct 3,
1973, the Board issued an order transferring the
proceeding to the Board and a Noti;e To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause, entitled "Answer to Notice To Show Cause."
The Union filed a reply to Respondent's "Answer to
Notice To Show Cause."
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 asserts
that the Union's certification was improperly issued
because the Union's lack of majority would have
been established had six challenges not been sus-
tained or because the election in the underlying
representation case should have been set aside on the
basis of its objections. In its response to the Notice
To Show Cause, Respondent reiterates its representa-
tion case contentions, and also contends that certain
misrepresentations, the decision of the Supreme
Court in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270
(1973), and the alleged disenfranchising of certain
unit employees require the denial of the General
Counsel's Motion for Summary Judgment.
Our review of the record herein, including the
record in Case 20-RC-10447, reveals an election
conducted pursuant to a Stipulation for Certification
Upon Consent Election on February 25, 1972, which
resulted in a 54-to-48 vote in favor of the Union, with
17 challenged and 2 void ballots. Respondent filed
timely objections alleging, in substance, that the
election results had been unfairly affected by (1) the
Union's offer to waive initiation fees, (2) its threats to
employees, (3) certain preelection conduct of the
Union's agents in and around Respondent's premis-
es, and (4) misconduct by a Board agent resulting in
the casting of a blank ballot by an employee. After
an investigation, the Regional Director issued a
Report on Objections and Challenged Ballots,
recommending that one challenge and one objection
be overruled, and the remainder of the challenges
and objections be resolved at hearings. There being
no exceptions to this report, as subsequently supple-
mented and corrected, the Board, on August 14,
1972, ordered hearings on the challenges and
objections.
The hearing on the challenged ballots, which was
severed from that on objections, was held. Thereaf-
ter, the Hearing Officer issued a report, recommend-
ing that the challenges to 11 of the ballots be
overruled, and the remaining 6 be sustained. Follow-
ing Respondent's timely exceptions to this report, the
' Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969);
Case 20-RC-10447, as the term "record" is defined in Secs 102 68 and Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164
102 69(f) of the Board's Rules and Regulations, Series 8, as amended See NLRB 378, enfd. 397 F 2d 91 (C A 7, 1968), Sec. 9(d) of the NLRA
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
211 NLRB No. 48
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board , on May 25, 1973, issued a Decision and
Direction , ordering the opening and counting of the
11 ballots . The Regional Director, thereafter, on
June 8, 1973, issued a revised tally of ballots showing
a final vote of 57 to 56 in favor of the Union.
Concurrent with the hearing on challenges, on
February 6 and 7, 1973, a hearing was held on the
Respondent 's objections , which had been consolidat-
ed for hearing with an unfair labor practice com-
plaint against the Union.2 On April 13, 1973, the
Administrative Law Judge issued his Decision,
recommending that the complaint be dismissed and
the objections to the election be overruled. On July
11, 1973, after considering the Respondent 's excep-
tions, the Board issued its Decision and Order
affirming the Administrative Law Judge and adopt-
ing his recommended Order.3 Thereafter, on July 17,
1973, the Regional Director certified the Union as
exclusive collective-bargaining representative.
With respect to the issues arising from the
Respondent 's objections and challenges, it appears
that Respondent has been afforded adequate oppor-
tunities to litigate , and did litigate, these matters in
the underlying representation case . It now appears
that it is seeking to relitigate them in this unfair labor
practice 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.4
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
labor practice proceeding.
In its response to the Notice To Show Cause, the
Respondent also raises issues not heretofore consid-
ered by the Board in the representation case. The
Respondent contends that the Union allegedly
misrepresented material facts by offering to waive a
nonexistent initiation fee, and that 16 unit employees
were not informed that they were eligible to vote, and
were thus denied the right to vote in the election.
These contentions are not now timely raised in this
2 Case 20-CB-2653.
3 204 NLRB No. W.
4 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 ( 1941);
unfair labor practice proceeding as they could have
been raised in the underlying representation case.5
Respondent also contends that the Supreme Court
decision in N. L. R B. v. Savair Mfg. Co., 414 U.S. 270
(1973), issued during the pendency of this proceed-
ing, requires denial of the Motion for Summary
Judgment . We find no merit in this contention as a
specific finding was made on this objection in the
representation case that the offer to waive initiation
fees by the Union was unqualified and uncondition-
al. An unconditional waiver such as this, available to
employees both before and after the election, is
permissible under the Savair decision , supra, in which
the Supreme Court held prejudicial a waiver of an
initiation fee conditioned on the employee signing
with the Union prior to the election . Irwindale
Division, Lau Industries, a Division of Phillips Indus-
tries, Inc., 210 NLRB No. 42 (1974). See also Con-
Pac, Inc., 210 NLRB No. 70 (1974).
It thus appears that there are no issues properly
litigable in this proceeding . Accordingly, the General
Counsel's Motion for Summary Judgment is granted.
On the basis of the entire record , the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Levitz Furniture of Santa Clara, Inc.,
is a California corporation with an office and sales
facility located in Santa Clara , California, engaged in
the retail sale of furniture . During the past year,
Respondent, in the course and conduct of its
business operations , had gross sales in excess of
$500,000. During the past year, Respondent, in the
course and conduct of its business operations,
purchased and received goods and products valued
in excess of $50,000 directly from suppliers located
outside the State of California.
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
Retail Store Employees Union, Local 428, Retail
Clerks International Association , AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
Rules and Regulations of the Board, Secs . 102.67(f) and 102.69(c).
S See Heritage Nursing Center, Inc., 207 NLRB No. 118.
LEVITZ FURNITURE CO. OF SANTA CLARA, INC. 419
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
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.
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 the Employer at its
Laurelwood Road, Santa Clara, California, facili-
ty, excluding guards and supervisors as defined in
the Act.
2. The certification
On February 25, 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 20 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 July 17, 1973, 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 July 23, 1973, 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 September 21, 1973, 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 September 21, 1973, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees i' 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.
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,
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 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);
Burnett 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. Levitz Furniture Company of Santa Clara,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 428,
Retail Clerks International Association, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All employees employed by the Employer at its
Laurelwood Road, Santa Clara, California, facility,
excluding guards 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 July 17, 1973, 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 September 21, 1973,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees of Respondent in the appropriate unit, Respon-
dent 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
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Levitz Furniture Company of Santa Clara, Inc.,
Santa Clara , California , its officers , agents, succes-
sors , 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 Store Em-
ployees Union , Local 428, Retail Clerks Internation-
al Association , AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All employees employed by the Employer at its
Laurelwood Road , Santa Clara , California, facili-
ty, excluding 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 Laurelwood Road; Santa Clara,
California, location copies of the attached notice
marked "Appendix."6 Copies of said notice, on
forms provided by the Regional Director for Region
20 after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees 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 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 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
Store Employees Union, Local 428, 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
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:
All employees employed by the Employer
at its Laurelwood Road, Santa Clara, Cali-
fornia, facility, excluding guards and super-
visors as defined in the Act.
LEviTz FURNITURE
COMPANY OF SANTA
CLARA, INC.
(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.
LEVITZ FURNITURE CO. OF SANTA CLARA, INC. 421
Any questions concerning this notice or compli- 450 Golden Gate Avenue, San Francisco, California
ance with its provisions may be directed to the 94102 , Telephone 415-556-3197.
Board 's Office , 13018 Federal Building, Box 36047,