T. G. & Y. Stores Co.

National Labor Relations Board - Board Decisions

Mar 9, 1976

222 N.L.R.B. 1305 (N.L.R.B. 1976)

T. G. & Y. STORES CO.
T. G. & Y. Stores Co. and Retail Store Employees
Union, Local 373, Retail Clerks International Asso-
ciation, AFL-CIO. Case 20-CA-10696
March 9, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
Upon a charge filed on October 8, 1975, by Retail
Store Employees Union, Local 373, Retail Clerks In-
ternational Association, AFL-CIO, herein called the
Union, and duly served on T. G. & Y. Stores Co.,
herein called the Respondent, the Acting General
Counsel, hereinafter called the General Counsel of
the National Labor Relations Board, by the Acting
Regional Director for Region 20, issued a complaint
on October 28, 1975, 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, complaint, and no-
tice of hearing before an Administrative Law Judge
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on April 8, 1975, fol-
lowing a Board election in Case 20-RC-12092, 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 April 28 and May 23, 1975, 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 November 6, 1975, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On December 19, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. 'Subsequently, on January 5,
1976,-the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause.
i Official notice is taken of the record in the representation proceeding,
Case 20-RC-12092, as the term "record" is defined in Sees 102.68 and
102.69(g) of the Board' s Rules and Regulations , Series 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. 4L5 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 FSupp 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.
1305
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
In its answer to the complaint and response to the
Notice To Show Cause _Respondent admits the factu-
al allegations of the complaint but denies the validity
of the certification on the basis of its objections to
the election in the underlying representation pro-
ceeding, Case 20-RC-12092, involving supervisory
participation in the Union's organizational cam-
paign, upon which it requests a hearing in the instant
proceeding.
A review of the entire record in this proceeding,
including the record in Case 20-RC-12092, reveals
that the Union won an election conducted pursuant
to the Regional Director's Decision and Direction of
Election. Respondent filed timely objections to con-
duct affecting the results of the election alleging, in
substance, supervisory participation in securing
union authorization card signatures and supervisory
influence on employees to vote for the Union. There-
after, it filed a motion for hearing. On September 16,
1975, the Regional Director issued a Supplemental
Decision and Certification of Representative in
which he denied the motion for failure to present
evidence sufficient to establish a prima facie case,
overruled Respondent's objections, and certified the
Union.
Respondent filed a timely request for review of the
Regional Director's Supplemental Decision and Cer-
tification of Representative and the Board, in a tele-
graphic communication of October 25, 1974, re-
manded the case to the Regional Director for the
purpose of considering any additional evidence sub-
mitted by the Respondent pertaining to its objec-
tions. After further investigation, the Regional Direc-
tor, concluding that the objections raised substantial
and material issues that could best be resolved at a
hearing, issued, on November 14, 1974, a Supple-
mental Decision and Notice of Hearing. After a
hearing, the Hearing Officer issued, on February 10,
1975, a Report on Objections in which he recom-
mended that the Respondent's objections be over-
ruled in their entirety. Respondent thereupon filed
exceptions to the Hearing Officer's report and a sup-
porting brief.
On April 8, 1975, the Acting Regional Director is-
sued a Second Supplemental Decision and Certifica-
tion of Representative in which she adopted the find-
222 NLRB No. 206
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings, conclusions , and recommendations of the hear-
ing officer and certified the Union as exclusive col-
lective-bargaining representative of the employees in
the appropriate unit. Respondent filed a timely re-
quest for review and accompanying brief again rais-
ing the issue of supervisory involvement in the
Union's organizational campaign. The Board in a
telegraphic communication of May 15, 1975, denied
Respondent's request for review as raising no sub-
stantial issues warranting review. It thus appears that
by reiterating herein its objections based on supervi-
sory participation in the Union's organizational cam-
paign, Respondent is attempting to- rehtigate issues
raised and decided in the underlying representation
case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.2
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision 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
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation with a place
of business in Napa, California, is engaged in the
retail sale of general merchandise. During the past
year Respondent sold merchandise valued in excess
2 See Pittsburgh Plate Glass Co v. N.L R B., 313 US. 146,162 (1941);
Rules and Regulations of the Board, Secs 102 67(f) and f02.69(c)
3 -In its response to the Notice To, Show Cause, the Respondent requests
the opportunity to present in the instant proceeding evidence to establish
that the representation election should be declared null and void. We deny
the Respondent's request. Not only has the Respondent been afforded an
evidentiary hearing on its objections in the representation proceeding but
also, in denying review of the Regional Director's Second Supplemental
Decision and Certification of Representative, the Board concluded that no,
substantial issues warranting review had been raised and thus necessarily
found that no further hearing on the Respondent's objections was required
Target Stores, Inc, 219 NLRB No. 95 (1975), Williams Energy Company, 218
NLRB No 165 (1975). -
of $500 ,000. During the same period Respondent
purchased and received goods and supplies valued in
excess of $50,000 directly from--Suppliers located out-
side the State of California and sold and shipped
goods and products, valued in -excess of $50 ,000 di-
rectly to customers located outside the State of Cali-
fornia.
We find , on the basis of the foregoing , that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of , Section 2(6) and (7), of the Act, and that
itwill effectuate the policies of the Act to assert-
juris-dictionn herein. ,
II. THE LABOR ORGANIZATION INVOLVED
Retail Stores Employees Union, Local 373, Retail
Clerks International Association, AFL-CIO, is a la-
bor 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 thethe Respondent con-
stitute - a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time-selling and
nonselling employees employed by Respondent
at its department store in Napa, California, ex-
cluding guards and supervisors as defined in the
Act.
2. The certification
On August 22, 1974, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional' Di-
rector for Region 20, 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 8, 1975, 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 April- 21 and May 16,
1975, and at all times thereafter, the Union has re-
quested the Respondent to bargain collectively with
T. G. & Y. STORES CO.
it as the exclusive collective-bargaining representa-
tive of all the employees in the above-described unit.
Commencing on or about April 28 and May 23,
1975, 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 ex-
clusive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that the Respondent has,
since April 28, 1975, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 opera-
tions described in section I, above, have a close, inti-
mate, 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 mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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 (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); Bur-
nett 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
1307
1. T. G. & Y. Stores Co. is an employer engaged in
commerce within the meaning of Section 2(6) 'and (7)
of the Act.
2. Retail Store Employees Union, Local 373, Re-
tail Clerks International Association, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All full-time-and regular part-time selling and
nonselling employees-employed by Respondent at its
department store in Napa, California, excluding
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the-purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since April 8, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about April 28 and May 23,
1975, and at all times thereafter, to bargain collec-
tively with the above-named labor organization as
the exclusive bargaining representative of all the em-
ployees of Respondent in the appropriate unit, Re-
spondent 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 mean-
ing 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 Re-
lations Board hereby orders that the Respondent,
T. G. & Y. Stores Co., Napa, California, 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 con-
ditions of employment with Retail Store Employees
Union, Local 373, Retail Clerks International Asso-
ciation, AFL-CIO, as the exclusive bargaining repre-
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of its employees in the following appropri-
ate unit:
All full-time and regular part-time selling and
nonselling employees employed by Respondent
at its department store in Napa, California, ex-
cluding 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 department store in Napa, Califor-
nia, copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be post-
ed 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.
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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board." -
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
Store Employees Union, Local 373, Retail
Clerks International Association, 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 represen-
tative 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 bargaining unit is:
All full-time and - regular part-time selling
and nonselling employees employed by Re-
spondent at its department store in Napa,
California, excluding guards and supervisors
as defined in the Act.
T. G. & Y. STORES CO.