Local 340, New York New Jersey Regional Joint Board

National Labor Relations Board - Board Decisions

Apr 13, 2017

365 NLRB No. 61 (N.L.R.B. 2017)

365 NLRB No. 61
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Local 340, New York New Jersey Regional Joint
Board and Brooks Brothers, a Division of Retail
Brand Alliance, Inc. Case 02–CB–069460
April 13, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of
material fact as to the allegations of the complaint, and
requests that the National Labor Relations Board find,
as a matter of law, that the Respondent, Local 340, New
York New Jersey Regional Joint Board (the Union or the
Respondent), has violated Section 8(b)(1)(A), (2), and (3)
by continuing to seek judicial enforcement of an arbitra-
tion award that conflicts with the Board’s unit clarifica-
tion determination.1 The award requires the Employer,
Brooks Brothers, to recognize the Union and apply the
collective-bargaining agreement, which includes a union-
security clause, to employees at the Employer’s 1180
Madison Avenue store, despite the Board’s finding in the
unit clarification proceeding that those employees were
not an accretion to the unit represented by the Union.2
The General Counsel issued the complaint on March
31, 2016, and an amendment to the complaint on May 4,
2016. The Union filed an answer admitting the perti-
nent facts as set forth below, but denying that its con-
duct violated the Act and asserting affirmative defenses.
On September 15, 2016, the General Counsel filed
with the Board a Petition for Summary Judgment and
Issuance of Decision and Order, with exhibits, and a
memorandum in support of the petition. The General
Counsel contends that, in light of the factual admis-
sions contained in the Union’s answer, the pleadings
raise no genuine issues of fact requiring an evidentiary
hearing. On September 27, 2016, the Union filed an op-
position to the General Counsel’s petition. On September

1 Brooks Brothers, Case 02–UC–062745 (September 21, 2015) (not
included in bound volumes).
2 Specifically, the complaint alleges that by pursuing enforcement of
the arbitration award, the Union unlawfully insisted on a change in the
scope of the unit, thereby refusing to bargain in good faith with the
Employer; requested that the Employer apply the terms of the collec-
tive-bargaining agreement, including the union-security clause, to non-
unit employees, thereby attempting to cause the Employer to discrimi-
nate against the 1180 Madison employees in violation of Sec. 8(a)(3) of
the Act and to encourage its employees to join the Union; and re-
strained and coerced employees in the exercise of their Sec. 7 rights.
29, 2016, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the General Counsel’s petition should not be
granted. Thereafter, on November 3, 2016, the Union
filed an Opposition to the Petition for Summary
Judgment and Request for Reconsideration of the
Board’s Denial of Respondent’s Request for Review
that “supplements and revises” the Union’s Septem-
ber 27, 2016 opposition. The Union also filed a sup-
porting memorandum of law. On November 17, 2016,
the General Counsel filed a limited response to the Un-
ion’s opposition.
Ruling on Petition for Summary Judgment
We find that there are no genuine issues of material
fact requiring a hearing. We agree with the General
Counsel that the complaint allegations denied by the Un-
ion raise no issues of fact apart from those already decid-
ed by the Regional Director and affirmed by the Board in
the underlying unit clarification (UC) case, and that all
other complaint allegations were admitted by the Union.
We also agree with the General Counsel that none of the
Union’s affirmative defenses raises any material issue of
fact requiring a hearing. For the reasons set forth below,
we find that the Union has violated the Act as alleged.
Accordingly, we grant the General Counsel’s Petition
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Brooks Brothers, the Employer,
has been a Delaware corporation with offices and a prin-
cipal place of business at 346 Madison Avenue, New
York, New York, and has been engaged in the retail sale
of clothing at stores throughout the United States. Annu-
ally, the Employer, in conducting its business operations,
derives gross revenues in excess of $500,000 and has
sold and shipped from its 346 Madison Avenue facility
products, goods, and materials valued in excess of $5000
directly to points outside the State of New York. We
find, on the basis of the foregoing, that at all material
times the Employer has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The Union admits, and we find, that at all
material times, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
At all material times, the Employer and the Union
have maintained a collective-bargaining agreement
providing for recognition of the Union as the exclusive
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agent for unit employees at the Employer’s
retail stores operated under the name “Brooks Brothers”
in New York City and surrounding counties.3 The
recognition clause of the collective-bargaining agreement
also contains the following procedures for new retail
stores:
If the Employer opens any new retail store(s) in the
above-designated geographic area, the following provi-
sions of this Agreement shall be applicable to such
store(s): Articles I, II, III, IV, XI, XIII, XV, XVII,
XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, and
XXVI. All other terms and conditions applicable to
such store(s) shall be subject to negotiations, on notice
to the Union at least 30 days in advance of the store
opening, provided that the terms of Article XXV shall
not be suspended in connection with such negotiations
regardless of whether or not an agreement is reached.
This Agreement shall not apply at all to any store(s)
opened by the Employer that are identified and operat-
ed as factory outlet stores.
The collective-bargaining agreement also contains griev-
ance and arbitration procedures and a union-security clause.
On or about February 26, 2011, the Employer opened
the 1180 Madison Avenue store but did not recognize the
Union as the collective-bargaining representative of the
1180 Madison employees. The Union did not present
any evidence to the Employer that it had majority sup-
port from the 1180 Madison employees, but relying on
the after-acquired stores clause (“Kroger clause”) quoted
above,4 the Union, on May 27, 2011, filed a grievance
alleging that the Employer violated the collective-
bargaining agreement by refusing to recognize the Union
as the collective-bargaining representative of the 1180
Madison employees and refusing to apply the contract
provisions specified in the recognition clause to them.
On August 11, 2011, the Employer filed a UC petition in
Case 02–UC–062745, claiming that the 1180 Madison
employees were not a proper accretion to the unit. While
the UC petition was pending in the Region, an arbitrator
issued an award on June 5, 2012, ordering the Employer
to recognize the Union as the collective-bargaining rep-
resentative of the 1180 Madison employees and to apply
the collective-bargaining agreement provisions specified
in the recognition clause to them. The award, however,
was not based on a finding that the Union had obtained
the support of a majority of the 1180 Madison employ-
ees. The Employer did not comply with the award, and

3 The recognition clause provides for recognition at certain named
stores and “any other retail store(s) opened during the term of this
Agreement.”
4 Houston Div. of the Kroger Co., 219 NLRB 388 (1975).
on June 26, 2012, the Union filed a lawsuit in the United
States District Court for the Southern District of New
York, Case 1:12-CV-05006-ALC, seeking enforcement
of the arbitration award. Subsequently, on December 18,
2014, the Regional Director issued a Clarification Deci-
sion finding that the 1180 Madison employees were not a
proper accretion to the unit. On September 21, 2015, the
Board denied the Union’s request for review of the Clari-
fication Decision. Despite the Board’s denial of review,
the Union has continued to maintain the lawsuit seeking
enforcement of the conflicting arbitration award.
B. Contentions of the Parties
The General Counsel contends that summary judgment
is appropriate because the Union admits that it continued
to seek enforcement of the arbitration award ordering
that the Employer apply the collective-bargaining agree-
ment, which includes a union-security clause, to the 1180
Madison employees, whom the Board determined, in
affirming the Clarification Decision, to be outside the
unit.5 The General Counsel asserts that the complaint
allegations denied by the Union, as well as its affirmative
defenses, “raise no issues of fact apart from those decid-
ed by the Regional Director and affirmed by the Board in
the underlying unit clarification case.” Those issues
cannot be relitigated in a subsequent unfair labor practice
proceeding absent newly discovered evidence, previously
unavailable evidence, or special circumstances. The
General Counsel contends that the Union has shown
none of these circumstances; rather, the Union’s position
is based on its disagreement with the Clarification Deci-
sion.
The General Counsel also argues that the Union’s at-
tempt to enforce the arbitration award contravenes Board
precedent, under which it is unlawful for an employer to
recognize a union pursuant to a Kroger clause absent a
showing of majority support or evidence supporting an
accretion. The award here made no finding of majority
status but instead relied solely on the language of the
Kroger clause in ordering that the Employer recognize
the Union as the representative of the 1180 Madison em-
ployees.
In opposition, the Union argues that the Board should
reconsider its denial of the Union’s Request for Review
in the UC case. The Union asserts that the Region failed
to admit certain evidence into the record in that case and
that the UC decision departs from established precedent.

5 The Board has held that such conduct violates Sec. 8(b)(1)(A), (2),
and (3) of the Act. Teamsters Local 776 (Rite Aid Corp.), 305 NLRB
832, 833–834 (1991), enfd. 973 F.2d 230 (3rd Cir. 1992), cert. denied
507 U.S. 959 (1993).
LOCAL 340, NEW YORK NEW JERSEY REGIONAL JOINT BOARD 3
The Union further asserts that it has lawfully demanded
recognition at all material times.
C. Discussion
As pointed out by the General Counsel, the presence of
an after-acquired store clause in a collective-bargaining
agreement does not automatically result in the inclusion
of employees at an after-acquired store in an existing
unit. In Kroger Co., supra, 219 NLRB at 388–389, the
Board held that where an after-acquired store is not an
accretion, proof of majority status by the union is re-
quired. See also Melbet Jewelry Co., 180 NLRB 107,
110 (1969) (employees at new store location not found to
be an accretion will not be added to an existing unit
without some showing that those employees wish to au-
thorize the union to represent them).
In the underlying UC case, the Board denied review of
the Regional Director’s determination that the 1180
Madison employees were not an accretion to the multi-
store unit covered under the collective-bargaining
agreement between the Union and Brooks Brothers. The
denial of review “constitute[s] an affirmance of the re-
gional director’s action which shall also preclude reliti-
gating any such issues in any related subsequent unfair
labor practice proceeding.” Section 102.67(g) of the
Board’s Rules and Regulations.6

6 Despite the finality of the Board’s denial of review, the Union has
now requested reconsideration of the Board’s no-accretion finding.
Renewing arguments made in its Request for Review, the Union asserts
that the UC decision departed from Board precedent. We deny the
Union’s request for reconsideration. Issues that were or could have
been litigated in a prior representation proceeding cannot be relitigated
in a subsequent unfair labor practice proceeding absent newly discov-
ered evidence, previously unavailable evidence, or special circumstanc-
es. Warren Unilube, Inc., 357 NLRB 44, 44 (2011), enfd. 690 F.3d 969
(8th Cir. 2012); Allied Trades Council (Duane Reade, Inc.), 342 NLRB
1010, 1012–1013 (2004) (union precluded in a subsequent unfair labor
practice proceeding from relitigating the scope of the bargaining unit by
raising for the first time the issue of accretion, an issue that could have
been raised in the representation proceeding); American Tempering,
Inc., 296 NLRB 699 (1989) (adopting ALJ’s reliance, in an unfair labor
practice case, on the “no accretion” finding in a prior unit clarification
decision, affirmed by the Board on review, in light of parties’ failure to
identify any new evidence in regard to the accretion issue), enfd. 919
F.2d 731 (3d Cir. 1990). In the instant case, the Union has offered no
new or previously unavailable evidence that would change the result in
the UC case.
Nor does the Union’s claim that the Region failed to enter certain
exhibits into the record in the UC case constitute special circumstances
warranting reconsideration of the no-accretion finding. The Union
asserts that the Region failed to enter 21 exhibits (Exhs. 40–60) into the
record of the UC case, notwithstanding the hearing officer’s Order
dated October 25, 2013, that the exhibits be entered in the record after
the hearing was adjourned. The Union contends that in light of that
alleged failure, the Regional Director and the Board did not have access
to the exhibits at the time the UC case was considered. We reject this
argument because there is no merit to the Union’s claim that the exhib-
its were not entered into the record. Although the Union was informed
In light of the Board’s finding that the 1180 Madison
store was not an accretion to the existing multi-store unit,
the only lawful basis for including the 1180 Madison
employees within the existing unit under the Kroger
clause would be that a majority of the 1180 Madison
employees had authorized the Union to represent them.
But here, the Union presented no such evidence and the
arbitrator made no such finding.7 Because there is no
lawful basis for including the 1180 Madison employees
in the existing unit under the Kroger clause, we find that
the arbitration award, which requires the Employer to
recognize the Union and apply the terms of the collec-
tive-bargaining agreement to the nonunit 1180 Madison
employees in the absence of either an accretion or a
showing of majority status, contravenes both Board prec-
edent and the Board’s affirmance of the Clarification
Decision finding no accretion.
Our decision is supported by Teamsters Local 776
(Rite Aid Corp.), supra, 305 NLRB at 833–834, in which
the Board found that the union violated Section
8(b)(1)(A), (2), and (3) of the Act by continuing to main-
tain a lawsuit to enforce an arbitrator’s award that was
contrary to a unit clarification determination excluding
the employees at issue from the unit. Citing Carey v.
Westinghouse Electric Corp., 375 U.S. 261, 272 (1964),
the Board held that the arbitrator’s decision was not con-
trolling because it was superseded by the superior author-

by the Board’s FOIA Office that the exhibits were “not located” in the
agency’s electronic case file, the General Counsel argues, and we find,
that that information was erroneous, likely resulting from the mislabel-
ing of the exhibits. Our review of the electronic case file shows that the
exhibits were added to it on October 31, 2013, and therefore, contrary
to the Union’s assertion, they were available to the Regional Director
and the Board to review, if necessary, during the consideration of the
UC case. In these circumstances, we find no special circumstances
warranting reconsideration of the UC case.
7 Although the Union does not claim that it had majority status in
2011 and 2012 when it initiated the arbitration proceeding at issue here,
it claims that it has been seeking recognition based on majority status
since April 2, 2015, prior to the Board’s denial of review in the UC
case. It further asserts that it filed a grievance and demand for arbitra-
tion on September 24, 2015, seeking to have the arbitrator verify
whether the Union can establish majority support. It argues that be-
cause it now has a lawful basis to demand recognition from the Em-
ployer, its efforts to enforce the June 5, 2012 arbitration award are not
unlawful. We find that the Union’s claim of current majority support
does not raise a genuine issue of material fact warranting denial of
summary judgment in this case. The 2012 arbitration decision at issue
in the Union’s enforcement action was not based on the arbitrator’s
verification of the Union’s alleged majority support, and the Union
does not claim that it had majority support at that time. Because the
Union’s asserted showing of majority support among the 1180 Madison
employees in 2015 does not form the basis of the arbitration award that
the Union is seeking to enforce, it is irrelevant to the Union’s enforce-
ment proceeding. We find, therefore, that the Union’s claim that it had
majority status as of April 2, 2015, does not require a denial of sum-
mary judgment.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ity of the Board’s subsequent unit clarification decision.
The Board found that by continuing the lawsuit to en-
force the arbitrator’s conflicting award, the union was, in
effect, seeking to apply the collective-bargaining agree-
ment to employees whom the Board had determined to
be outside of the bargaining unit, and by doing so, the
union was insisting on a change in the scope of the exist-
ing bargaining unit in violation of Section 8(b)(3) of the
Act. The Board also held that insisting on application of
a collective-bargaining agreement including a union-
security clause to employees who are unrepresented vio-
lates both Section 8(b)(1)(A) and Section 8(b)(2). Rite
Aid, 305 NLRB at 834.8
Here, for the reasons set forth above, the Union is not
the lawful collective-bargaining representative of the
1180 Madison employees. We find, therefore, that by
maintaining the lawsuit seeking enforcement of the arbi-
tration award after the Board’s denial of review in the
UC case holding that the 1180 Madison store was not an
accretion to the existing multi-store unit, and in the ab-
sence of the required showing of majority status, the Un-
ion has in effect sought a court order requiring the Em-
ployer to apply the collective-bargaining agreement,
which includes a union-security clause, to employees
outside of the bargaining unit. We conclude, as in Rite
Aid, that this conduct violated Section 8(b)(1)(A), (2),
and (3) of the Act.9
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By continuing to seek enforcement of an arbitra-
tion award that is incompatible with the Board’s unit
clarification decision in Case 02–UC–062745 and re-
quires the Employer to apply its collective-bargaining
agreement to employees outside the bargaining unit, the
Respondent has insisted and is insisting on bargaining
for a change in the scope of the existing bargaining
unit and has thereby refused to bargain in good faith

8 In Rite Aid, the Board found that maintaining a lawsuit aimed at
achieving a result that is incompatible with a contrary Board ruling
fell within the “illegal objective” exception articulated in fn. 5 of Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), and there-
fore lacked constitutional protection. 305 NLRB 834–835. See also
Allied Trades Council (Duane Reade, Inc.), supra, 342 NLRB at 1013
fn. 4.
9 Because the General Counsel attacks the maintenance of the law-
suit only after September 21, 2015, when the Board ruled on the Un-
ion’s request for review in the UC case, we need not decide whether
the filing and maintenance of the lawsuit prior to that point consti-
tuted an unfair labor practice.
with the Employer in violation of Section 8(b)(3) of the
Act.
4. By pursuing enforcement of the June 5, 2012 arbi-
tration award, thereby insisting on application of certain
contract provisions, including the union-security clause,
to the Employer’s nonunit 1180 Madison employees, the
Respondent has restrained and coerced employees in
violation of Section 8(b)(1)(A) of the Act and has
attempted to cause the Employer to discriminate
against its employees in violation of Section 8(a)(3) of
the Act, in violation of Section 8(b)(2) of the Act.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in un-
fair labor practices within the meaning of Section
8(b)(1)(A), (2), and (3) of the Act, we shall order that
it cease and desist and take certain affirmative action
designed to effectuate the policies of the Act. We
shall order the Respondent to withdraw or if necessary
otherwise seek dismissal of the lawsuit in the United
States District Court for the Southern District of New
York, Case 1:12-CV-05006-ALC, seeking enforcement
of the June 5, 2012 arbitration award, and to reimburse
the Employer for all reasonable expenses and legal fees,
with interest, that the Employer incurred after September
21, 2015—the date of issuance of the Board’s unit
clarification order—in defending against the lawsuit.
Interest shall be computed as prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
ORDER
The National Labor Relations Board orders that the
Respondent, Local 340, New York New Jersey Regional
Joint Board, New York, New York, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Maintaining its lawsuit seeking enforcement of
Arbitrator Daniel F. Brent’s June 5, 2012 Award, which
is incompatible with the Board’s unit clarification deci-
sion in Case 02–UC–062745 and requires the Employer
to apply the collective-bargaining agreement, which in-
cludes a union-security clause, to employees outside the
bargaining unit.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw or if necessary otherwise seek dismissal
of any action in Case 1:12-CV-05006-ALC in the Unit-
LOCAL 340, NEW YORK NEW JERSEY REGIONAL JOINT BOARD 5
ed States District Court for the Southern District of New
York.
(b) Reimburse the Employer, Brooks Brothers, for
all reasonable expenses and legal fees incurred since
September 21, 2015, in defense of Case 1:12-CV-
05006-ALC in the United States District Court for the
Southern District of New York, with interest as set forth
in the remedy section of this decision.
(c) Within 14 days after service by the Region, post at
its offices and meeting halls and all other places where
notices to its members are customarily posted, copies of
the attached notice marked ‘‘Appendix.’’10 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to members are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its members by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Within 14 days after service by the Region, deliver
to the Regional Director for Region 2 signed copies of
the notice in sufficient number for posting by the Em-
ployer at its 1180 Madison Avenue facility, if it wishes,
in all places where notices to employees are customarily
posted.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. April 13, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member

10 If 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.’’
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT continue to maintain our lawsuit seek-
ing enforcement of Arbitrator Daniel F. Brent’s June 5,
2012 Award, which is incompatible with the Board’s
unit clarification decision in Case 02–UC–062745 and
requires the Employer to apply the collective-bargaining
agreement, which includes a union-security clause, to
employees outside the bargaining unit.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights listed
above.
WE WILL withdraw or if necessary otherwise seek
dismissal of any action in Case 1:12-CV-05006-ALC in
the United States District Court for the Southern District
of New York.
WE WILL reimburse the Employer, Brooks Brothers,
for all reasonable expenses and legal fees, with inter-
est, incurred since September 21, 2015, in defense of
Case 1:12-CV-05006-ALC in the United States District
Court for the Southern District of New York.
LOCAL 340, NEW YORK NEW JERSEY REGIONAL
JOINT BOARD
The Board’s decision can be found at
www.nlrb.gov/case/02–CB–069460 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
El