Stanley's Super D

National Labor Relations Board - Board Decisions

Nov 4, 1977

233 N.L.R.B. 241 (N.L.R.B. 1977)

STANLEY'S SUPER D
Stanley Stores, Inc., d/b/a Stanley's Super D and
Retail Clerks International Association, Local
1691, AFL-CIO. Case 15-CA-537
November 4, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on July 20, 1977, by Retail
Clerks International Association, Local 1691, AFL-
CIO, herein called the Union, and duly served on
Stanley Stores, Inc., d/b/a Stanley's Super D, herein
called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 15, issued a complaint on July
26, 1977, 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 (I) 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 June 20, 1977,
following a Board election in Case 15-RC-6038 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 July 11, 1977, 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 August 3, 1977, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On August 11, 1977, counsel for the General
Counsel filed directly with the Board a "Motion to
Transfer and Continue Case Before the Board and
Motion for Summary Judgment." Respondent filed
an opposition with attachments entitled "Response
in Opposition to General Counsel's Motion to
Transfer and Continue Case Before the Board and
Motion for Summary Judgment." Subsequently, on
August 25, 1977, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
I Official notice is taken of the record in the representation proceeding,
Case 15-RC-6038. 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 (C.A. 4,
1968): Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26
(C.A. 5. 1969): Inrertrpe Co. v. Penello. 269 F.Supp 573 (DC.Va., 1967);
233 NLRB No. 41
dent thereafter filed a response to Notice To Show
Cause incorporating by reference its opposition to
the Motion for Summary Judgment.
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 answer to the complaint, opposition to the
Motion for Summary Judgment, and response to the
Notice To Show Cause, Respondent contests the
validity of the Union's certification on the basis of its
objections to the election in the underlying represen-
tation case, and requests that a new election be held
or, alternatively, that a hearing be held on the
substantial and material issues raised by its objec-
tions. The General Counsel contends that Respon-
dent is attempting to relitigate matters which were or
could have been considered and disposed of in the
underlying representation case and this it may not
do. We agree with the General Counsel.
A review of the record herein, including that in
Case 15-RC-6038, establishes that, pursuant to a
Stipulation for Certification Upon Consent Election,
an election 2 was held on February 8, 1977, in which
the Union prevailed by a vote of 26 to I 11. Thereafter,
Respondent filed timely objections to the election
alleging, in substance, union conduct as follows: (1)
improper electioneering, (2) unlawful election
speeches while the balloting was in progress, and (3)
other acts which warranted setting aside the election.
After investigation, the Regional Director issued on
April 5, 1977, a Report on Objections in which he
found the objections to be without merit and
recommended that they be overruled, as raising no
substantial or material issues affecting the conduct or
results of the election. Respondent filed detailed
exceptions and a supporting brief essentially reiterat-
ing its objections and requesting that a new election
be directed or, alternatively, that a hearing be held
on its objections. After considering the record in light
of Respondent's exceptions and brief, the Board
issued a Decision and Certifications of Representa-
tive in which it adopted the Regional Director's
findings and recommendations, necessarily finding
that Respondent had raised no substantial or
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 This election was held in Case 15-RC6038 involving a unit consisting
of all full-time and regular part-time employees excluding meat department
employees. On the same date, an election was also held in Case 15 RC-6044
involving a unit consisting only of all meat department employees.
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material issues warranting a hearing, and certified
the Union.
In its submissions Respondent again contends that
it is entitled to an evidentiary hearing on its
objections. We find no merit in this contention. As
indicated above, the Board's Decision and Certifica-
tions of Representative necessarily found that Re-
spondent's objections raised no issues requiring a
hearing. It is well established that parties do not have
an absolute right to a hearing. It is only when the
moving party presents a prima facie showing of
"substantial and material factual issues" which
would warrant setting aside the election that it is
entitled to an evidentiary hearing3 and Respondent
has not made such a showing herein. It is clear that,
absent arbitrary action, this qualified right to a
hearing satisfies all statutory and constitutional
requirements. 4
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. 5
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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 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
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Texas corporation, is engaged in the
retail sale of groceries at its store located at Highway
171 North in Leesville, Louisiana, the only facility
involved herein. During the past 12 months, a
representative period, Respondent, in the course and
conduct of its business operations, purchased and
received goods and products valued in excess of
$50,000, which goods and products were shipped
directly to Respondent's store from points located
3 N.L.R.B. v. Modine Manufacturing Company, 500 F.2d 914 (C.A. 8,
1974), enfg. 203 NLRB 527 (1973): Handy Hardware Wholesale, Inc., 222
NLRB 373 (1976): Janler Plastic Mold Corporation, 191 NLRB 162 (1971):
Crest Leather Manufacturing Corporation, 167 NLRB 1085 (1967). and cases
cited therein.
outside the State of Louisiana. During the same
representative period, Respondent's gross volume of
business exceeded $500,000.
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.
11. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local
1691, 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
I. The unit
The following employees of Respondent constitute
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 Leesville, Louisi-
ana, store located on Highway 171 North;
excluding manager, assistant managers, meat
department employees, watchmen, guards and
supervisors, as defined in the Act.
2. The certification
On February 8, 1977, 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 bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on June 20, 1977, 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 June 29, 1977, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
4 Amalgamated Clothing Workers of America [Winfield Manufacturing
Company, Inc.] v. N.LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970).
5 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
242
STANLEY'S SUPER D
or about July 11, 1977, and continuing at all times
thereafter to date, 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 July 11, 1977, 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 com-
mences 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 (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
I. Stanley Stores, Inc., d/b/a Stanley's Super D,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks International Association, Local
1691, AFL-CIO, 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 Leesville, Louisiana,
store located on Highway 171 North; excluding
manager, assistant managers, meat department em-
ployees, watchmen, 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 June 20, 1977, 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 11, 1977, 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(aX5) 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 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)(X) 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 the Respondent,
Stanley Stores, Inc., d/b/a Stanley's Super D,
Leesville, Louisiana, 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 Inter-
national Association, Local 1691, AFL-CIO, 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 Leesville, Louisi-
ana, store located on Highway 171 North;
excluding manager, assistant managers, meat
department employees, watchmen, guards and
supervisors, as defined in the Act.
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 Leesville, Louisiana, store copies of
the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional
Director for Region 15, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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.
6 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."
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 International Association, Local 1691,
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
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 full-time and regular part-time em-
ployees employed at our Leesville, Louisi-
ana, store located on Highway 171 North;
excluding manager, assistant managers,
meat department employees, watchmen,
guards and supervisors, as defined in the
Act.
STANLEY STORES, INC.,
D/B/A STANLEY'S
SUPER D
244