S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Sep 30, 1971

193 N.L.R.B. 473 (N.L.R.B. 1971)

S. H. KRESS & CO. 473
S. H. Kress & Co. and Hotel, Motel and Restaurant
Employees Union , Local 166, AFL-CIO. Case
15-CA-4140
September 30, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on June 2, 1971, by Hotel,
Motel and Restaurant Employees Union, Local 166,
AFL-CIO, herein called the Union, and duly served
on June 3, 1971, upon S. H. Kress & Co., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 15, issued a complaint on June 10, 1971,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce 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 were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 15,
1971, following a Board election in Case 15-RC-4430
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; i and that,
commencing on or about March 4, 1971, and at all
times thereafter, Respondent has refused, and contin-
ues 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 June 21, 1971, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On July 8, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 14, 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 filed an opposition
to General Counsel's Motion for Summary Judgment
as its response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
I Official notice is taken of the record in the representation proceeding,
Case 15-RC-4430, as the term "record" is defined in Secs 102.68 and
102.69(f) of the Board 's 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; Intertype Co, v. Penello,
269 F . Supp . 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397
powers in connection with 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
its answer to the complaint, Respondent contends
that because it was not afforded an opportunity for
hearing on its objections to the election underlying the
Certification in Case 15-RC-4430, and was therefore
deprived of due process, the certification was unlaw-
fully issued and the Union is not the exclusive
representative of the Respondent's employees in the
appropriate unit.
The record in Case 15-RC-4430 discloses that the
Regional Director, on September 11, 1970, issued a
Decision and Direction of Election in which he
directed an election for a unit of certain employees of
Respondent's food department, rather than in the
storewide unit urged by the Respondent.2 On Septem-
ber 16, 1970, Respondent filed a Request for Review
of the Regional Director's Decision and Direction of
Election, contending again that the food department
unit found to be appropriate was, in fact, inappropri-
ate since the only appropriate unit was a storewide
unit. The Board, in a telegraphic order of October 6,
1970, denied the request for review as raising no
substantial issues warranting Board consideration.
In the election conducted on October 9, 1970,
pursuant to the Regional Director's Decision and
Direction of Election, as modified, among Respon-
dent's employees in the unit found to be appropriate,
there were 31 valid votes cast, of which 20 were for,
and 11 against, the Union. On October 15, 1970,
Respondent filed timely objections to the conduct of
the election and to conduct affecting the results of the
election. In substance the first objection alleged
misrepresentation by the Union with respect to: (1)
The amount of union dues; (2) the union membership
of Respondent's manager and of the employees of
other stores of the Respondent; (3) the requirement of
strike authorization votes; (4) the law governing the
replacement of strikers; (5) rules concerning supervi-
sory authority; (6) employee placements in the
various departments of the store; and (7) benefits
received by employees of a local hotel who were
represented by the Union. A second objection alleged
that the Union's interjection of a racial issue into the
election campaign required that the election be set
F.2d 91 (C A. 7, 1968); Sec. 9(d) of the NLRA
2 Thereafter , at Respondent's request, the Regional Director issued an
order modifying his Decision and Direction to include in the unit two
former part-time employees who had been transferred to full -time jobs in
the food department after the hearing but prior to the election eligibility
date
193 NLRB No. 78
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aside and a third objection alleged that union threats
of discharge if the Union lost the election mandated
the same result. No evidence was offered in support of
three other objections.
After an investigation, the Regional Director issued
a detailed Supplemental Decision and Certification of
Representative, on January 15, 1971, in which he
found Respondent's objections were without merit,
overruled them in their entirety, and certified the
Union. Thereafter, on February 9, 1971, Respondent
filed a Request for Review of the Regional Director's
Supplemental Decision in which it reiterated its
objections as a basis for vacating the Union's
certification and argued that the objections raised
substantial factual issues warranting an evidentiary
hearing. After due consideration, the Board, on
March 1, 1971, denied the Request for Review on the
ground that it raised no substantial issues warranting
review.
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.3
All issues raised by the Respondent in this proceed-
ing 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, 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
The Respondent is a New York corporation
engaged in the resale of goods and merchandise in
various locations throughout the United States.
During the past 12 months the Respondent, at the
facility involved herein, had gross sales in excess of
$500,000. During the same period Respondent pur-
chased goods in excess of $50,000 which were shipped
directly to it from points located outside the State of
Louisiana.
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
Hotel , Motel and Restaurant Employees Union,
Local 166, 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
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time food service
employees (Department 90), including the porter-
dishwasher at Respondent's store located at 923
Canal Street, New Orleans, Louisiana; excluding
all other employees, guards and supervisors as
defined in the Act.
2. The certification
On October 9, 1970, 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 15 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on January 15, 1971, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 4, 1971, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about March 4, 1971, 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 representative for collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
3 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)
S. H. KRESS & CO. 475
March 4, 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 Respondent set forth in section III,
above, occurring in oonnection 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 com-
merce 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, 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed 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. S.H. Kress & Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Hotel, Motel and Restaurant Employees Un-
ion, Local 166, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time food service
employees (Department 90), including the porter-
dishwasher at Respondent's store located at 923
Canal Street, New Orleans, Louisiana; excluding all
other 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 January 15, 1971, 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 March 4, 1971, 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, Respondent
has interfered with, restrained, and coerced, and is
interfering 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 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.
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 & Co., 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 Hotel, Motel and Restaurant
Employees Union, Local 166, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time food service
employees (Department 90), including the porter-
dishwasher at Respondent's store located at 923
Canal Street, New Orleans, Louisiana, excluding
all other 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
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its store at 923 Canal Street, New
Orleans, Louisiana, copies of the attached notice
marked "Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 15,
after being duly signed by Respondent's representa-
tive, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that the Board ' s 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 "
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
Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative 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 under-
standing in a signed agreement. The bargaining
unit is:
All full-time and regular part-time food
service employees (Department 90), includ-
ing the porter-dishwasher at Respondent's
store located at 923 Canal Street, New
Orleans, Louisiana; excluding all other em-
ployees, guards and supervisors as defined in
the Act.
S. H. KRESS & Co.
(Employer)
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 Hotel,
Motel and Restaurant Employees Union, Local
166, AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
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, T6024 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113, Telephone
504-527-6361.