N.B.O. Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1980

249 N.L.R.B. 1012 (N.L.R.B. 1980)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N.B.O. Stores, Inc., and its Wholly owned subsidi-
ary National Brands Outlet of New Jersey, Inc.
and Retail Clerks Union Local 1049, United
Food and Commercial Workers, AFL-CIO-
CLC. Case 22-CA-9652
June 2, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on December 11, 1979, by
Retail Clerks Union Local 1049, United Food and
Commercial Workers, AFL-CIO-CLC, herein
called the Union, and duly served on N.B.O.
Stores, and its wholly owned subsidiary National
Brands Outlet of New Jersey, Inc., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 22, issued a complaint and notice of
hearing on January 18, 1980, against Respondent,
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
Relations Act, as amended. Copies of the charge
and complaint and notice of hearing before an ad-
ministrative 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 October 1,
1979, following a Board election in Case 22-RC-
7841, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about October 3, 1979, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On January 28, 1980, Re-
spondent filed its answer to the complaint, admit-
ting in part, and denying in part, the allegations in
the complaint. Respondent admits that a charge
was filed and served on Respondent, that Respond-
ent meets the Board's jurisdictional standards, and
that the Union is a labor organization within the
meaning of the Act, but denies all the remaining al-
legations of the complaint.
Official notice is taken of the record in the representation proceed-
ing, Case 22-RC-7841, as the term "record" is defined in Secs 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended
See LTV Electrosysrems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969); Inrerrype Co. v. Penello, 269 FSupp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
249 NLRB No. 138
On April 2, 1980, the General Counsel filed di-
rectly with the Board a Motion for Summary Judg-
ment. Subsequently, on April 4, 1980, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter filed
a response to the Notice To Show Cause.
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
Respondent's memorandum in opposition to the
General Counsel's Motion for Summary Judgment
is devoted substantially to reargument of its posi-
tion on the unit determination and challenges. Re-
spondent argues that the lack of meaningful review
of the underlying representation case by the Board
deprives Respondent of due process and requires
that the complaint be dismissed. Furthermore, Re-
spondent contends that the single-store bargaining
unit certified by the Board is inappropriate and that
the representation petition should be dismissed.
With regard to the challenges, Respondent states
that the failure of the Regional Director to hold a
hearing on the challenged ballots leaves unresolved
genuine issues of fact precluding summary judg-
ment. Respondent's position is that each of the
challenged voters shares a community of interest
with the unit employees that the challenges to their
ballots should be overruled and the ballots opened
and counted.
Review of the record herein, including the
record in Case 22-RC-7841, reveals that on April
16, 1979, the Union filed a representation petition
and sought to be certified as the exclusive collec-
tive-bargaining representative of certain employees
at the Clifton, New Jersey, store only. Following a
hearing on the representation petition, the Regional
Director for Region 22 on May 17, 1979, issued a
Decision and Direction of Election wherein he
found the single-store unit appropriate. Respond-
ent's request for review, contending that only a
multistore unit was appropriate, was denied by the
Board.
A secret-ballot election was conducted on June
12, 1979, under the supervision of the Regional Di-
rector for Region 22 in the unit found appropriate.
Thereafter, a tally of ballots was served on the par-
ties showing that of approximately 26 eligible
voters 24 cast ballots, of which 12 were cast for
the Union, 5 were cast against the Union, and 7
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N.B.O STORES 1013
ballots were challenged. The challenged ballots
were determinative of the results of the election.
Prior to any determination on the merits of the
challenges, the parties stipulated that three of the
employees whose ballots were challenged were eli-
gible to vote. Those ballots were opened and
counted, and a revised tally of ballots was served
on the parties. The revised tally indicated that of
26 eligible voters 24 cast ballots, of which 12 were
cast for the Union, 8 were cast against the Union,
and 4 challenged ballots remained. The remaining
challenged ballots were determinative of the results
of the election.
Pursuant to Section 102.69 of the Board's Rules
and Regulations, Series 8, as amended, the Region-
al Director for Region 22 conducted an investiga-
tion into the challenged ballots during which all
parties were afforded the opportunity to submit
evidence. The Regional Director then issued a
Supplemental Decision and Certification of Repre-
sentative on October 1, 1979, wherein he sustained
the challenges to the ballots of the four remaining
employees and ordered that their ballots remain un-
opened and uncounted. The Union was certified as
the exclusive collective-bargaining representative
of the employees in the unit found appropriate.
The Board denied the Respondent's request for
review of the supplemental decision as raising no
substantial issues warranting review with respect to
the challenges to the ballots of employees Callen-
dar, Schmidt, and Gross. As these challenges were
sustained, the challenge to the ballot of employee
Seizer was not determinative.
It thus appears that Respondent is merely at-
tempting to relitigate issues which were raised and
determined adversely to it in the underlying repre-
sentation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
2 See Pittsburgh Plate Gla/u Co. N L.R.B, 313 U.S 146, 162 (1941)
Rules and Regulations of the HBoard, Secs 102.67(f) and 102h9c)
practice proceeding.a Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of New
York. At all times material herein, Respondent has
maintained various places of business within the
States of Connecticut, New Jersey, and New York,
including a retail store and place of business at 525
Route 46, Clifton, New Jersey, herein called the
Clifton store, where it is now, and at all times ma-
terial herein has been continuously, engaged in the
retail sale of clothing and related products and
services. In the course and conduct of Respond-
ent's business operations during the past year,
which operations are representative of its annual
operations at all times material herein, Respondent
received gross revenues in excess of $500,000.
During the same period of time, Respondent re-
ceived goods valued in excess of $50,000 which
were transported to its Clifton store in interstate
commerce directly from States of the United States
other than the State of New Jersey.
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 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 Clerks Union Local 1049, United Food
and Commercial Workers, AFL-CIO-CLC, is a
labor organization within the meaning of Section
2(5) of the Act.
W \hile Respondent, in its answer, has denied the allegation that Re-
spondent has refused, since on or about October 3. 1979. to recognize and
bargain collectively with the Union as the exclusise representative of the
employees in the unit described in the complaint, we ssill not deny sum-
mary judgment for General Counsel's failure to support this allegation,
with affidavits or otherwise. inasmuch as the positions taken by Respond-
ent in its memorandum in opposition to the General Counsel's Motion for
Sunimar5 Judgment are inconsistent with recognition of the Union Re-
spondent has not argued that it has. in fact, recognized and bargained
with the Union otr that the Motion for Summary Judgment must he
denied on the basis of this controecrted allegaionl Cf Westinghouse Ele--
tri (Corxiration, 218 NLRH (19781 See also Siuthsevt Louisiana losrpital
4ortiaattonn d/hba ake Charlv .fMemoroia lopittal. 24(1 NlRH No 118
(1979)
N.B.O STORES 013
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees employed at the Respondent's
Clifton, New Jersey, plant, including all full-
time and regular part-time sales, stock, haber-
dashery, and cashier employees employed by
the Respondent at its Clifton, New Jersey,
retail store, including utility employees and
management trainees, but excluding all office
clerical employees, managerial employees, and
executives in the corporate headquarters,
truckdrivers, guards, store managers, assistant
store managers and all other supervisors as de-
fined in the Act.
2. The certification
On June 12, 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 22, designated the Union as
their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on October 1, 1979, and
the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 3, 1979, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 3, 1979, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
October 3, 1979, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 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 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 ap-
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 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 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. N.B.O. Stores, Inc., and its wholly owned sub-
sidiary National Brands Outlet of New Jersey, Inc.,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks Union Local 1049, United Food
and Commercial Workers, AFL-CIO-CLC, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All employees employed at Respondent's Clif-
ton, New Jersey plant, including all full-time and
regular part-time sales, stock, haberdashery, and
cashier employees employed by Respondent at its
Clifton, New Jersey, retail store, including utility
employees and management trainees, but excluding
all office clerical employees, managerial employees
and executives in the corporate headquarters,
truckdrivers, guards, store managers, assistant store
N.B.O STORES 1015
managers and all other supervisors as defined in the
Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since October 1, 1979, 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 October 3, 1979, 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 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,
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 8(a)(l) 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 Re-
lations Board hereby orders that the Respondent,
N.B.O. Stores, Inc., and its wholly owned subsidi-
ary National Brands Outlet of New Jersey, Inc.,
Clifton, New Jersey, 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 Clerks
Union Local 1049, United Food and Commercial
Workers, AFL-CIO-CLC, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All employees employed at the Respondent's
Clifton, New Jersey, plant, including all full-
time and regular part-time sales, stock, haber-
dashery, and cashier employees employed by
Respondent at its Clifton, New Jersey, retail
store, including utility employees and manage-
ment trainees, but excluding all office clerical
employees, managerial employees, and execu-
tives in the corporate headquarters, truck-
drivers, guards, store managers, assistant store
managers and all other supervisors as defined
in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
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
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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Clifton, New Jersey, facilities
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 22, 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 22,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
4 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National 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 Clerks Union Local 1049, United
Food and Commercial Workers, AFL-CIO-
CLC, 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 employ-
N.B.O STORES
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All employees employed at the Employer's
Clifton, New Jersey, plant, including all full-
time and regular part-time sales, stock, hab-
erdashery, and cashier employees employed
by the Employer at its Clifton, New Jersey,
retail store, including utility employees and
management trainees, but excluding all
office clerical employees, managerial em-
ployees, and executives in the corporate
headquarters, truckdrivers, guards, store
managers, assistant store managers and all
other supervisors as defined in the Act.
N.B.O. STORES, INC. AND ITS
WHOLLY OWNED SUBSIDIARY NA-
TIONAL BRANDS OUTLET OF NEW
JERSEY, INC.