Moreway North Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1972

195 N.L.R.B. 950 (N.L.R.B. 1972)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreway North Corp .; Moreway West Corp .; More-
way 100 Corp .; Moreway South Inc.;' The Witlock
Corporation ; Unishops of Central Textile, Inc.;
Mitchell Camera & Drug Corp . of Columbus; Cen-
tral Textile ; National Hardgoods Dist., Inc.; Star-
lette Stores, Inc.; Bobbie Sue, Inc .; Unishops, Inc.;
John O'Brian ; Spencer Shoe Corporation; and S.
(Sam) Gellis & Co., Inc . and Retail Store Employees
Union Local No. 444 , Retail Clerks International
Association, AFL-CIO. Case 30-CA-1735
March 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge and an amended charge filed, respec-
tively, on October 7 and October 15, 1971, by Retail
Store Employees Union Local No. 444, Retail Clerks
International Association, AFL-CIO, herein called the
Union, and duly served on Moreway North Corp.;
Moreway West Corp.; Moreway 100 Corp.; Moreway
South Inc.; The Witlock Corporation; Unishops of
Central Textile, Inc.; Mitchell Camera & Drug Corp.
of Columbus; Central Textile; National Hardgoods
Dist., Inc.; Starlette Stores, Inc.; Bobbie Sue, Inc.; Uni-
shops, Inc.; John O'Brian ; Spencer Shoe Corporation;
and S. (Sam) Gellis & Co., Inc., herein called the Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
30, issued a complaint and notice of hearing and an
amended complaint and notice of hearing, respectively,
on November 4 and November 23, 1971, against Re-
spondent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charges, com-
plaints, and notices of hearing before a Trial Examiner
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
amended complaint alleges in substance that on August
25, 1971, following a Board election in Cases 30-RC-
1282 and 30-RM-200 the Union was duly certified as
the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropriate;2
and that, commencing on or about September 24, 1971,
' Moreway South Corp , as it appears in the complaint and amended
complaint, has been amended to Moreway South Inc to conform with the
Board's Decision and Certification of Representative of August 25, 1971,
and par (2)(1) of the Respondent's answer to amended complaint.
Official notice is taken of the record in the representation proceeding,
Cases 30-RC-1282 and 30-RM-200, as the term "record" is defined in
Sees 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8,
as amended See LTVElectrosystems, Inc, 166 NLRB 938, enfd 388 F 2d
683 (C A 4, 1968), Golden AgeBeverage Co., 167 NLRB 151, Intertype Co
v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp., 164 NLRB 378,
195 NLRB No. 165
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 November 12 and November 30, 1971,
respectively, Respondent (except O'Brian) filed its an-
swer to the complaint and amended complaint and on
December 7, 1971, Respondent O'Brian filed its answer
to the amended complaint, all admitting in part, and
denying in part, the allegations of the complaints.
On November 15, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, submitting that the pleadings
herein raised no material issues which were not raised
and decided in the prior proceedings, and praying the
Board to grant the Motion for Summary Judgment.
Subsequently, on December 21, 1971, the Board issued
an order transferring the proceeding to the Board and
a Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be granted.
Respondent thereafter, on January 10, 1972, filed a
response captioned Statement in Oppostion to General
Counsel's Motion for Summary Judgment. On January
17, 1972, the General Counsel filed a response thereto.
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 oppostion to the Motion for Summary Judg-
ment, as in its answers to the complaint and amended
complaint, the Respondent attacks the legal effect or
validity of the Certification of Representative issued by
the Board on August 25, 1971. This contention was
based on the same matters that the Respondent raised
in its objections to the election in the prior representa-
tion cases which the Board found to be without merit.
The Board affirmed the Trial Examiner's findings of
fact, conclusions, and recommendations, and certified
the Union as the collective-bargaining representative of
the Respondent's employees in the unit set forth in the
stipulation for certification.' The thrust of the Re-
spondent's contention in its opposition to the Motion
for Summary Judgment is that since the Board's certifi-
cation, circumstances have so changed as to require a
hearing concerning the status of new leased-depart-
ment employees so that it can be determined whether
enfd. 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA.
3 On July 6, 1971, the Board received a stipulation executed by the
parties, including Mid-America Concessions, Inc., whereby they agreed to
exclude snackbar employees from the unit
MOREWAY NORTH CORP. 951
the new leased-department employees may appropri-
ately be included in or should expressly be excluded
from the certified bargaining unit . We find no merit to
this contention. We are not passing here on whether
new leased-department employees are a part of the
unit, as this depends, at least in part, on the terms of
the license agreement between the new leased-depart-
ment employers and the Respondent, which was not
introduced into evidence. All we hold here is that on
the basis of the record before us, and as the new leased-
department employers are not made a party to this
proceeding, no bargaining order can be issued against
them in this proceeding.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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 proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable eivdence, nor does it allege that
any special circumstances exist herein which could re-
quire 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. We
shall, accordingly, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, Moreway North Corp.;
Moreway West Corp.; Moreway 100 Corp.; and More-
way South Inc., Wisconsin corporations, have operated
facilities located at 10130 West Appleton Avenue,
17300 West Bluemound Road, 5301 S. 108th Street and
801 West Layton Avenue, respectively, all in the
greater Milwaukee, Wisconsin, area, where each has
received gross revenues in excess of $100,000 annually
for space leased and services provided to lessees en-
gaged in retail merchandising.
At all times material herein, Witlock, Unishops of
Central, Mitchell, Central, National, Starlette, Bobbie
Sue, Unishops, O'Brian, Spencer, and Gellis, or their
predecessors, herein called lessees, have leased space in
one or more of the above-described Moreway facilities,
where they have each engaged in the retail sale of vari-
' See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs . 102.67(f) and 102.69(c).
ous types of merchandise to the general public under
the trade name "Moreway Stores."
At all times material herein Respondent, in the
course and conduct of its business, has had annual
retail sales valued in excess of $500,000 and has annu-
ally received goods and supplies at the four above-
named locations valued in excess of $50,000 which
were shipped, in interstate commerce, directly from
points located outside the State of Wisconsin.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Stores Employees Union Local No. 444, Re-
tail Clerks International Association, 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
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All regular full-time and regular part-time selling,
nonselling and maintenance employees, including
leased department employees, at the Employer's
10130 W. Appleton Avenue, 801 W. Layton Ave.,
17300 W. Bluemound Rd. and 5301 S. 108 Street,
Milwaukee, Wisconsin locations, excluding tem-
porary employees, casual employees, snack bar
employees, meat department and grocery depart-
ment employees, managerial employees, profes-
sional employees, confidential employees, guards
and supervisors as defined in the Act.
2. The certification
On July 16, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted pursuant to a Stipulation for Certification Upon
Consent Election, under the supervision of the Re-
gional Director for Region 30, designated the Union as
their representative for the purpose of collective bar-
gaining with the Respondent. The Union was certified
as the collective-bargaining representative of the em-
ployees in said unit on August 25, 1971, and the Union
continues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about August 30, 1971, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
September 24, 1971, and continuing at all times there-
after to date, the Respondent has refused, and contin-
ues 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 24, 1971, and at all times thereafter, refused
to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
and that, by such refusal, Respondent 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 the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Moreway North Corp.; Moreway West Corp.;
Moreway 100 Corp.; Moreway South Inc.; The Wit-
lock Corporation; Unishops of Central Textile, Inc.;
Mitchell Camera & Drug Corp. of Columbus; Central
Textile; National Hardgoods Dist., Inc.; Starlette
Stores, Inc.; Bobbie Sue, Inc.; Unishops, Inc.; John
O'Brian; Spencer Shoe Corporation; and S. (Sam) Gel-
lis & Co., 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 No. 444,
Retail Clerks International Association, AFL-CIO, is
a labor organization within the meaning of Section 2(5)
of the Act.
3. All regular full-time and regular part-time selling,
nonselling and maintenance employees, including
leased department employees, at the Employer's 10130
W. Appleton Avenue, 801 W. Layton Ave., 17300 W.
Bluemound Rd. and 5301 S. 108 Street, Milwaukee,
Wisconsin locations, excluding temporary employees,
casual employees, snack bar employees, meat depart-
ment and grocery department employees, managerial
employees, professional employees, confidential em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
4. Since August 25, 1971, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about September 24, 1971, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respond-
ent in the appropriate unit, Respondent 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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
MOREWAY NORTH CORP. 953
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that Respondent, Moreway North
Corp.; Moreway West Corp., Moreway 100 Corp.;
Moreway South Inc.; The Witlock Corporation; Uni-
shops of Central Textile, Inc.; Mitchell Camera & Drug
Corp. of Columbus; Central Textile; National Hard-
goods Dist ., Inc.; Starlette Stores , Inc.; Bobbie Sue,
Inc.; Unishops, Inc.; John O'Brian ; Spencer Shoe Cor-
poration ; and S . (Sam) Gellis and Co., Inc., 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 Retail Store Employees Union Lo-
cal No . 444, Retail Clerks International Association,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All regular full -time and regular part -time selling,
nonselling and maintenance employees , including
leased department employees, at the Employer's
10 130 W. Appleton Avenue, 801 W. Layton Ave.,
17300 W. Bluemound Rd. and 5301 S. 108 Street,
Milwaukee , Wisconsin locations, excluding tem-
porary employees , casual employees , snack bar
employees, meat department and grocery depart-
ment employees , managerial employees, profes-
sional employees , confidential employees, 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Milwaukee, Wisconsin, locations co-
pies of the attached notice marked "Appendix."5 Co-
' 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 be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
pies of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by Re-
spondent 's representative , shall be posted by Respond-
ent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employes 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 30, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 No. 444, 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 Sec-
tion 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive reprsentative
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 agreement . The bar-
gaining unit is:
All regular full -time and regular part-time
selling , nonselling and maintenance em-
ployees, including leased department em-
ployees, at the Employer's 10130 W. Apple-
ton Avenue, 801 W. Layton Ave., 17300 W.
Bluemound Rd. and 5301 S. 108 Street, Mil-
waukee, Wisconsin locations , excluding tem-
porary employees , casual employees, snack
bar employees, meat department and grocery
department employees, managerial em-
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, professional employees, confidential
employees, guards and supervisors as defined
in the Act.
MOREWAY NORTH CORP-;
MOREWAY WEST CORP.;
MOREWAY 100 CORP.;
MOREWAY SOUTH INC;
THE WITLOCK
CORPORATION;
UNISHOPS OF
CENTRAL TEXTILE, INC.;
MITCHELL CAMERA
& DRUG CORP. OF
COLUMBUS; CENTRAL
TEXTILE; NATIONAL
HARDGOODS DIST., INC.;
STARLETTE STORES,
INC.; BOBBIE SUE, INC.;
UNISHOPS, INC.; JOHN
O'BRIAN; SPENCER SHOE
CORPORATION; AND
S. (SAM) GELLIS CO.,
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Commerce Building , Second Floor, 744 North
Fourth Street, Milwaukee, Wisconsin 53203, Tele-
phone 414-224-3861.