166 N.L.R.B. 764 (N.L.R.B. 1967)

Montgomery Ward & Co.

National Labor Relations Board - Board DecisionsJul 3, 1967

166 N.L.R.B. 764 (N.L.R.B. 1967)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward& Company and Retail Clerks International Association , Local No. 1179, AFL-CIO. Case 20-CA-4495 July 3, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA Upon charges filed by Retail Clerks International Association, Local 1179, AFL-CIO (herein called the Union), the General Counsel of the National Labor Relations Board by the Regional Director for Region 20 issued a complaint and notice of hearing dated May 1, 1967. The complaint alleged that Respondent had engaged in and was engaging in un- fair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint and notice of hearing were served upon Respondent. The complaint alleges, in substance, that on or about March 20, 1967, the Regional Director for Region 20, on behalf of the Board, duly certified the Union as the exclusive bargaining representative of Respondent's employees in the unit stipulated by the parties to be appropriate and that, since on or about April 10, 1967, and at all times thereafter, Respondent has refused and continues to refuse to bargain collectively with the Union as the exclusive bargaining representative of the employees in such unit, although the Union has requested and is requesting it to do so. On or about May 15, 1967, the Respondent filed its answer, denying the com- mission of the unfair labor practices alleged. On May 19, 1967, the General Counsel filed with the Board a Motion for Summary Judgment, assert- ing that there are no issues of fact or law requiring a hearing, and urging that the Board, in view of the admissions contained in the Respondent's answer and the documents annexed as appendices to the moving papers, find the allegations of the complaint to be true and make findings of fact and conclusions of law in conformity with the allegations of the com- plaint. Thereafter, on May 23, 1967, the Board is- sued an Order Transferring Proceeding to the Board. On June 5, 1967, the Respondent filed an Answer to the Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. Upon the entire record, the Board makes the fol- lowing: RULING ON THE MOTION FOR SUMMARY JUDGMENT The following facts are undisputed : On July 27, 1966 , the Union filed a petition seeking to represent certain employees of the Respondent (Case 20-RC-7093). On September 1, 1966, the Acting Regional Director for Region 20 approved a Stipu- lation for Certification Upon Consent Election ex- ecuted by the parties which stated that the following employees of the Respondent constituted an ap- propriate unit: All employees of the Employer's catalog and service store located at 34 and 36 East 5th Streets, Pittsburg, California, excluding the manager, assistant manager, guards, and super- visors as defined in the Act. On September 23, 1966, an election by secret ballot was conducted under the supervision of the Regional Director among the employees of the Respondent in the unit set forth above. At the con- clusion of the election, the parties were furnished with a Tally of Ballots which showed that five voters cast ballots, of which one was for, and two were against, the Union, and two were challenged. On or about September 30, 1966, the Union filed objections to the election and to conduct affecting the results of the election. On November 10, 1966, the Regional Director issued a Report on Objec- tions and Challenged Ballots in which he recom- mended that the challenges be overruled, the ballots of the challenged individuals opened and counted, and the election set aside and a new one directed if the tally of ballots showed that the Unio had not received a majority of the votes cast. On lovember 22, 1966, Respondent filed its Exception to the Re- gional Director's Report. On January 6, 1967, the Board issued a Decision and Direction of Election (unpublished in NLRB volumes) directing the opening and counting of the challenged ballots, the issuance of a revised tally of ballots, and a new election if the Union lacked a majority. The Revised Tally of Ballots issued by the Regional Director on January 16, 1967, showed a majority of the ballots had not been cast for the Union. Accordingly, the Regional Director directed a second secret ballot election. Such election, con- ducted on March 10, 1967, resulted in the selection of the Union as collective-bargaining representative by a majority of the employees in the appropriate unit. On March 20, 1967, the Regional Director certified the Union as collective-bargaining representative of the employees in the appropriate unit. By letter dated March 24, 1967, the Union requested Respondent to meet with it for the pur- pose of negotiating a collective-bargaining agree- ment. By letter dated April 10, 1967, Respondent refused. In its Answer to the Motion for Summary Judgment, Respondent defends its refusal to bar- gain collectively on the grounds that (a) the election in which the Union failed to receive a majority of 166 NLRB No. 83 MONTGOMERY WARD & CO. the votes was improperly set aside for failure of Respondent to provide the Excelsior list' of names and addresses of the employees in the unit; and (b) therefore, the second election was illegal under Sec- tion 9(e)(2)2 of the Act, as it was held "within a year of the valid election held on September 23, 1966." Respondent submits it is entitled to a hear- ing to determine whether the Union actually required the Excelsior list. We find no merit in Respondent's position. The Board has held that it will not permit employers to decide for themselves whether there is a need for the list in a given case.3 Moreover, the Board has previously rejected Respondent's arguments con- cerning the Excelsior list in its earlier Decision and Direction of Election in Case 20-RC-7093. The Regional Director, therefore, properly set aside the first election herein, based on Respondent's refusal to provide the required list. And, since its refusal to furnish the list rendered the first election invalid, Respondent's contention concerning the applica- bility of Section 9(c)(3) is plainly without merit. We find, therefore, that there are no issues of fact or law which would require a hearing before a Trial Ex- aminer. Accordingly, the General Counsel's Mo- tion for Summary Judgment is hereby granted. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation with its principal office in Chicago, Illinois, and is engaged in the retail sale of general merchandise in Pitts- burg, California, and elsewhere. In its most recent fiscal year, Respondent sold goods and merchan- dise valued in excess of $500,000 and shipped goods and merchandise valued in excess of $50,000 across State lines. Respondent admits, and we find, that it is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the poli- cies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association Local No. 1179, 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 At all times material herein, the following have Excels,oi Underwear Inc., 156 NLRB 1236 ' As Section 9(e)(2) refers to deauthonzation elections, we treat the reference as being to Section 9(c)(3) 765 constituted a unit appropriate for collective bargain- ing within the meaning of the Act: All employees of the Employer's catalog and service store located at 34 and 36 East 5th Streets. Pittsburg, California. excluding the manager, assistant manager, professional em- ployees and supervisors as defined in the Act. 2. The certification On or about March 10, 1967, a majority of the employees of Respondent in said unit, in a secret election conducted under the supervision of the Re- gional Director for Region 20. designated the Union as their representative for collective bargain- ing with Respondent. On March 20, 1967, the Board, through its Regional Director for Region 20, certified the Union as the exclusive collective-bar- gaining representative of the employees in said unit, and the Union continues to be such representative. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 24, 1967, and continuing to date, the Union has requested and is requesting Respondent to bargain with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Since April 10. 1967, and continuing to date, Respondent did refuse. and continues to refuse, to bargain with the Union as the exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of Respondent in the appropriate unit described above and in the Board's certification, and that the Union at all times since March 20. 1967, has been, and now is, the ex- clusive bargaining representative of all the em- ployees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since April 10, 1967, refused to bargain with the Union as the exclusive collective- bargaining representative of its employees in the appropriate unit, and that, by such refusal, the Respondent has engaged in, and is engaging in, un- fair 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 acts of the Respondent set forth in section 111, above have a close, intimate, and substantial relation to trade, traffic, and commerce among the 'Swift & Company, I nc , 163 NLRB 17, Crane PacAing Co., 160 NLRB 164. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bar- gain with the Union as the exclusive collective-bar- gaining representative of all employees in the ap- propriate unit and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Montgomery Ward & Company is an Em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local No. 1179, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Respondent at its catalog and service store located at 34 and 36 East 5th Streets, Pittsburg, California, excluding the manager, assistant manager, professional em- ployees, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since March 20, 1967, the above-named labor organization has been exclusive representa- tive of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 10, 1967, and at all times thereafter, to bargain with the above- named labor organization as the exclusive collec- tive-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 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 em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, and has thereby en- gaged 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 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 Relations Board hereby orders that the Respond- ent, Montgomery Ward & Company, Pittsburg, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Retail Clerks Interna- tional Association, Local 1179, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All employees of the Employer's catalog and service store located at 34 and 36 East 5th Streets, Pittsburg, California, excluding the manager, assistant manager, professional em- ployees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in 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 un- derstanding is reached. embody such understanding in a signed agreement. (b) Post at its Pittsburg, California, place of busi- ness, copies of the attached notice marked "Appen- dix."4 Copies of said notice, on forms provided by the Regional Director for Region 20, 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 said Regional Director for Region 20, in writing, within 10 days from the date of this Deci- sion and Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a decree of a Unitea States Court of Appeals. there shall be substituted for the words "a Decision and Order," the words "a Decree of the United States Court of Appeals, En- forcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended. we hereby notify you that: MONTGOMERY WARD & CO. WE WILL NOT refuse to bargain collectively with Retail Clerks International Association, Local No. 1179, AFL-CIO, 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 em- ployees 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 representative of all employees in the bargain- ing unit described below, with respect to rates of pay. wages, hours, and other terms and con- ditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the Employer's catalog and service store located at 34 and 36 East 5th Streets, Pittsburg, California, exclud- 767 ing the manager , assistant manager, professional employees , and supervisors as defined in the Act. Dated By MONTGOMERY WARD & COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building. 450 Golden Gate Avenue, San Francisco, California 94102. Telephone 556-3197.