S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Mar 26, 1974

209 N.L.R.B. 845 (N.L.R.B. 1974)

S. H. KRESS & CO.
S. H. Kress & Company and District 65, National
Council Distributive Workers of America. Case
2-CA-13057
March 26, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on August 1, 1973, by District
65, National Council Distributive Workers of Ameri-
ca, herein called the Union, and duly served on S. H.
Kress & Company, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 2,
issued a complaint and notice of hearing on August
31, 1973, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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 12, 1973,
following a Board election in Case 2-RC-15824 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the stipulated unit found appropriate;' and that,
commencing on or about July 20, 1973, and at all
times thereafter, Respondent has refused, and con-
tinues 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 September 10, 1973, Respondent filed
its answer to the complaint admitting in part, and
denying in part, the allegations in the complaint,
submitting affirmative defenses, and praying that the
complaint be dismissed.
On September 24, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summaryjudgment and petition in support of motion
for summary judgment, with exhibits attached,
requesting that the Board take official notice of the
record in Case 2-RC-15824 and that the pleadings
herein be considered together therewith, alleging that
the Respondent's answer to the complaint raised no
issues which were not raised and decided in the prior
, Official notice is taken of the record in the representation proceeding,
Case 2-RC-15824, as the term "record" is defined in Secs. 10268 and
102.69(f) of the Board', Rules and Regulations, Series 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968);
Golden Age Beverage Co, 167 NLRB 151. enfd. 415 F.2d 26 (C.A. 5, 1969);
Intertvpe Co. v. Penello 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164
NLRB 378, enfd. 397 F.2d 91 (C.A 7, 1968): Sec 9(d) of the NLRA.
845
representation proceedings, and praying the Board to
grant the motion for summary judgment. Subse-
quently, on October 4, 1973, 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. Thereafter, Respondent filed a response to
notice to show cause and the General Counsel filed a
response thereto.
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 response to the notice to show cause, as in the
affirmative defenses alleged in its answer to the
complaint, the Respondent attacks the Regional
Director's and the Board's several rulings at the
various stages of the representation proceeding
relating to the appropriateness of the unit, its
objections to the election, and the resulting certifica-
tion. Thus, the Respondent admits that the "central
issue in the instant proceeding is whether the
Certification of Representative issued to [the Union],
in Case No. 2-RC-15824, is invalid because the
Regional Director and the Board erroneously over-
ruled Respondent's objections to the election and
erroneously overruled Respondent's challenges to the
ballots of Maria Aviles, Sonia Morales, and Carmen
Valentin." The Respondent further admits that by
denying the appropriateness of the unit alleged in the
complaint, it is seeking to obtain a review of the
Board's determinations on the challenges, and that,
in any case, the denials and defenses set forth in the
Respondent's answer are required in order to
preserve Respondent's right to judicial review of the
Board's action in the representation proceeding.2
Upon the record before us, including the record in
Case 2-RC-15824, we find no merit in the Respon-
dent's position. On March 10, 1972, during the
course of the representation hearing in Case
2-RC-15824, all the parties, including the Respon-
dent, stipulated to the appropriate unit as alleged in
the complaint. Subsequently, on May 5, 1972,
pursuant to a Decision and Direction of Election, an
election was conducted in the stipulated appropriate
2 By letter dated July 20, 1973, the Respondent notified the Union that it
believed that the certification of representative was invalid in that the Board
erroneously failed to sustain the Respondent 's objections to the election and
incorrectly overruled certain challenges , and that Respondent could not
accede to the request to bargain until the courts have reviewed the
certification.
209 NLRB No. 117
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit, and upon conclusion of the election the parties
were served with a tally of ballots which reflected
that, of approximately 51 eligible voters, 54 cast
ballots, 25 of which were cast for the Union, 23 were
cast against the Union, and 6 were challenged. The
challenged ballots were sufficient in number to affect
the results of the election. Thereafter, the Respon-
dent filed timely objections to conduct affecting the
results of the election. On July 28, 1972, after
investigation of the challenged ballots and the
objections, the Regional Director issued his Supple-
mental Decision, in which he found no merit to any
of the objections, sustained two of the challenges,
and overruled the remaining four challenges. The
Respondent, thereafter, filed a request for review of
the Regional Director's Supplemental Decision. On
October 16, 1972, the Board granted review as to
Objections 5 and 7 and as to the four challenged
ballots, which included those of Carmen Valentin,
Sonia Morales, and Maria Aviles, and remanded the
proceeding to the Regional Director for hearing. In
all other respects the request for review was denied.
Thereafter, the Respondent filed a motion requesting
reconsideration of the Board's October 16 Order
which the Board, on October 27, 1972, denied as
lacking in merit.
A hearing was held on December 6, 7, 8, 18, and
26, 1972, on the objections and challenges. All parties
were represented by counsel and participated in the
hearing. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues.
On May 26, 1973, the Hearing Officer issued his
Report and Recommendations on Challenged Bal-
lots wherein he recommended that the Respondent's
Objections 5 and 7 be overruled, that the four
challenges be overruled, and that they be opened and
counted. The Respondent, thereafter, filed timely
exceptions to the Hearing Officer's Report and
Recommendations on Challenged Ballots.
On June 28, 1973, the Board issued its Decision
and Order Directing Regional Director To Open and
Count Challenged Ballots and Issue Appropriate
Certification in which, after having considered the
entire record in this case, including the Hearing
Officer's Report and Recommendations on Chal-
lenged Ballots and the Respondent's exceptions
thereto, the Board adopted the Hearing Officer's
findings and recommendations. The Board further
found that Respondent's exceptions raised no mate-
rial or substantial issue of fact or law which would
3 As an affirmative defense in its answer to the complaint, the
Respondent avers that it cannot be charged with the commission of any
unfair labor practice, and that no unfair labor practice can be found, since
at no time has the Board ever reviewed the record of the representation
proceeding , Case 2-RC-15824. However , as indicated above , the Board in
warrant reversal of the Hearing Officer's findings
and recommendations. Accordingly, inasmuch as the
four ballots which the Hearing Officer recommended
that challenges be overruled were sufficient in
number to affect the results of the election, the Board
ordered that they be opened and counted; that a
revised tally of ballots be issued; and that the
Regional Director issue the appropriate certification.
The revised tally of ballots reflected that a majority
of the valid votes had been cast in favor of the Union
and, accordingly, the Union was certified as the
collective-bargaining representative of the employees
described in the complaint.
Clearly, by its answer to the complaint, and more
specifically by its denials, in whole or in part, of the
allegations of the complaint, the affirmative defenses
alleged in its answer,3 and the arguments propound-
ed in its response to the Notice To Show Cause, the
Respondent is attempting to relitigate the same issues
which it raised in the representation proceeding,
Case 2-RC-15824.
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. We shall, accord-
ingly, 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 THE RESPONDENT
The Respondent is, and has been at all times
material herein, a corporation duly organized under,
and existing by virtue of, the laws of the State of
Tennessee. At all times material herein, Respondent
has maintained a retail store located at 1915 Third
Avenue, in the city of New York, and State of New
its Decision of June 28 , 1973, considered the entire record in Case
2-RC-15824, and we find no ground for disturbing the findings and
conclusions contained therein.
4 See Pittsburgh Plate Glass Co v NLRB, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
S. H. KRESS & CO.
York, and several other retail stores, in the city of
New York, as well as retail stores located throughout
the country, where it is, and has been at all times
material herein, engaged in the sales of general
merchandise. During the past year, which period is
representative of its annual operations generally,
Respondent, in the course and conduct of its
business operations sold and distributed merchandise
in excess of $500,000, of which products valued in
excess of $50,000 were purchased directly from
suppliers located outside of the State of New York.
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
District 65, National Council Distributive Workers
of America , is a labor organization within the
meaning of Section 2(5) of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
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 Respondent at
its retail store located at 1915 Third Avenue, New
York, New York, including cashiers, porters,
maintenance, stock, food service, sales and office
clerical employees, but excluding all display
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On May 5, 1972, a majority of the employees of
Respondent in said stipulated unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 2, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative o the employees in said unit on July
12, 1973, and the Union continues to be such
exclusive representative within the meaning of
Section 9(a) of the Act.
847
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 17, 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 July 20, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since July 20, 1973, 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, 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,
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.
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; 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
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. S. H. Kress & Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District 65, National Council Distributive
Workers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. All employees employed by the Respondent at
its retail store located at 1915 Third Avenue, New
York, New York, including cashiers, porters, mainte-
nance, stock, food service, sales and office clerical
employees, but excluding all display employees,
professional employees, 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 12, 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 July 20, 1973, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed 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.
Council Distributive Workers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All employees employed by the Respondent at
its retail store located at 1915 Third Avenue, New
York, New York, including cashiers, porters,
maintenance, stock, food service, sales and office
clerical employees, but excluding all display
employees, professional 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
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 retail store located at 1915 Third
Avenue, New York City, copies of the attached
notice marked "Appendix." 5 Copies of said notice,
on forms provided by the Regional Director for
Region 2, 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 conspicu-
ous places, including all places where notices to
employees 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 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, S.
H. Kress & Company, New York, New York, 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 District 65, National
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 District
65, National Council Distributive Workers of
S. H. KRESS & CO.
America, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NO1 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 Respon-
dent at its retail store located at 1915 Third
Avenue, New York, New York, including
cashiers, porters, maintenance, stock, food
service, sales and office clerical employees,
but excluding all display employees, profes-
849
sional employees, guards and supervisors as
defined in the Act.
S. H. KREss &
COMPANY
(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 compli-
ance with its provisions may be directed to the
Board's Office, 36th Floor, Federal Building, 26
Federal Plaza, New York, New York 10007, Tele-
phone 212-264-0306.