Saxon Paint & Home Care Centers, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1977

228 N.L.R.B. 45 (N.L.R.B. 1977)

SAXON PAINT & HOME CARE CENTERS, INC. 45
Saxon Paint & Home Care Centers, Inc. and Retail
Clerks Union Local 1504 , Chartered by Retail
Clerks International Association , AFL-CIO &
CLC. Case 13-CA-15563
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:
February 8, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
Upon a charge filed on June 21, 1976, by Retail
Clerks Union Local 1504, Chartered by Retail Clerks
International Association, AFL-CIO & CLC, herein
called the Union, and duly served on Saxon Paint &
Home Care Centers, Inc., herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
13, issued a complaint and notice of hearing on July
15, 1976, against Respondent, alleging that Respon-
dent 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, 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 April 12, 1976,
following a Board election in Case 13-RC-13942, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about June 15, 1976, 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 July 26, 1976, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On August 2, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on August 9, 1976, 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 a
response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Official notice is taken of the record in the representation proceeding,
Case 13-RC-13942, as the term "record" is defined in Secs. 102 68 and
102 69(g) of the Board 's Rules and Regulations , Senes 8, as amended. See
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F .2d 683 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26
228 NLRB No. 15
Ruling on the Motion for Summary Judgment
In its answer to the complaint and in its response to
the Notice To Show Cause Respondent admits all
factual allegations of the complaint but denies the
validity of the Board's certification of the Union on
the basis that the unit found appropriate by the
Regional Director's Decision and Direction of Elec-
tion is in fact inappropriate. The General Counsel
contends that Respondent is attempting here to
relitigate matters previously determined in the under-
lying representation proceeding. We agree with the
General Counsel.
Review of the entire record, including that of the
representation proceeding in Case 13-RC-13942,
discloses that, after a hearing, the Regional Director
directed an election among the employees of one of
Respondent's stores upon finding the single store unit
petitioned for to be appropriate. Respondent filed a
request for review contending that the unit found by
the Regional Director to be appropriate is, in fact,
inappropriate in that it is too narrow in scope and
should include the employees of all of Respondent's
21 stores in Cook County, Illinois . The Board, with
Member Walther dissenting, advised Respondent in a
telegraphic communication of March 24, 1976, that
its request for review was denied as not raising a
substantial issue warranting review. An election
conducted on April 2, 1976, resulted in a vote of 10
for the Union, 5 against the Union, and I challenged
ballot. Absent objections to the election the Regional
Director certified the Union as exclusive bargaining
representative of employees in the unit found to be
appropriate.
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.2
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
(C A. 5, 1969), Intertype Co. v Penello, 269 F.Supp. 573 (D C Va, 1967),
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C A 7, 1968), Sec
9(d) of the NLRA, as amended
2 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(1) and 102 69(c)
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Respondent is an Illinois corporation with head-
quarters in Chicago, Illinois, and it maintains a facility
at 5807 West 95th Street, Oak Lawn, Illinois (the
facility involved herein), where it is engaged in the
retail sale of paint, wallpaper, and home decorating
supplies. During the past calendar year Respondent
received gross revenues in excess of $500,000. During
the same period Respondent purchased and received
goods and materials valued in excess of $50,000
directly from points located outside the State of
Illinois.
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
Retail Clerks Union Local 1504, Chartered by
Retail Clerks International Association, AFL-CIO &
CLC, 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 employees
employed at the Respondent's store presently
located at 5807 West 95th Street, Oak Lawn,
Illinois , but excluding store managers, guards and
supervisors as defined in the Act.
2. The certification
On April 2, 1976, 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 13, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on April 12, 1976, 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 May 25, 1976, and at all
times thereafter, the Union has requested the Re-
spondent 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 June 15, 1976, 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 June 15, 1976, 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 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 certifica-
tion as beginning on the date Respondent commenc-
SAXON PAINT & HOME CARE CENTERS, INC.
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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Saxon Paint & Home Care Centers, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Clerks Union Local 1504, Chartered by
Retail Clerks International Association, AFL-CIO &
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time employees
employed at the Respondent's store presently located
at 5807 West 95th Street, Oak Lawn, Illinois, but
excluding store managers, 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 April 12, 1976, 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 June 15, 1976, 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.
3 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
ORDER
47
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Saxon Paint & Home Care Centers, Inc., Oak Lawn,
Illinois, 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 1504, Chartered by Retail Clerks International
Association, AFL-CIO & CLC, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time employees
employed at the Respondent's store presently
located at 5807 West 95th Street, Oak Lawn,
Illinois , but excluding store managers, guards and
supervisors as defined in the Act.
i
(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 stores at 5807 West 95th Street, Oak
Lawn, Illinois, copies of the attached notice marked
"Appendix."3 Copies of said notice, on forms provid-
ed by the Regional Director for Region 13, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER WALTHER, dissenting:
In view of my dissent from the Board's denial of
Respondent's request for review of the Regional
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director's Decision and Direction of Election in the
underlying representation proceeding , Case 13-RC-
13942, I would not find a violation of Section 8(a)(5)
and (1) in the instant proceeding.
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 1504, Chartered by Retail
Clerks International Association , AFL-CIO &
CLC, as the exclusive representative of the em-
ployees 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
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
understanding in a signed agreement. The bar-
gaining unit is:
All full-time and regular part-time em-
ployees employed at the Respondent's store
presently located at 5807 West 95th Street,
Oak Lawn, Illinois, but excluding store
managers, guards and supervisors as defined
in the Act.
SAXON PAINT & HOME
CARE CENTERS, INC.