The May Department Stores Co.

National Labor Relations Board - Board Decisions

Oct 27, 1970

186 N.L.R.B. 86 (N.L.R.B. 1970)

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The May Department Stores Company and New
Furniture & Appliance Drivers, Warehousemen&
Helpers Local 196, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers
of America. Case 21-CA-9174
October 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed by New Furniture & Appliance
Drivers, Warehousemen & Helpers Local 196, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called
the Union, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 21, issued a complaint dated June 19, 1970,
against The May Department Stores Company,
herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the National Labor Relations Act,
as amended. Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly
served on the parties to this proceeding.
The complaint alleges, in substance, that on or
about March 27, 1970, the Union was duly certified as
the exclusive bargaining representative of the Respon-
dent's employees in an appropriate unit, and that, on
or about April 16, 1970, and thereafter, the Respon-
dent refused to recognize or bargain with the Union as
such exclusive bargaining representative, although the
Union requested the Respondent to do so. On July 20,
1970, Respondent filed its answer to the complaint,
and on July 23, 1970, an amendment to said answer,
in which it admitted in part and denied in part the
allegations contained therein, and requested that the
complaint be dismissed.
On July 27, 1970, the General Counsel filed with the
Board a Motion for Summary Judgment, asserting
that there were no issues of fact or law which had not
already been litigated before and determined by the
Board in a prior representation case,' and requesting
an appropriate order remedying the violations as
alleged in the complaint. Thereafter, on July 28, 1970,
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
i Official notice is taken of the record in the representation proceeding,
Case 21-RC-11512, as the term "record" is defined in Sections 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 Company, 167 NLRB 151, Intertype Co v
Penello, 269 F Supp 573 (D C Va, 1967), Intertype Company v N L R B,
401 F 2d 41 (C A 4, 1968), Follett Corporation , et a!, 164 NLRB 378, enfd
397 F 2d 91 (C A 7, 1968), Section 9(d) of the National Labor Relations
Act
should not be granted. Pursuant thereto, Respondent
filed a Response to the Notice to Show Cause with a
supporting affidavit.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
Upon the entire record in this case, the Board makes
the following:
Ruling on the Motion for Summary Judgment
The record establishes that pursuant to a petition
filed by the Union in the above-mentioned represent-
ation case, and following a hearing before a Hearing
Officer of the Board, the Regional Director, on
January 30, 1970, issued his Decision and Direction of
Election, in which he found appropriate a unit of
warehouse employees,',, as more fully described here-
inafter. Thereafter, the Respondent filed with the
Board a timely Request for Review of the Regional
Director's Decision, and a Motion to Augment said
request, in which it raised various issues concerning
the scope and composition of the unit which the
Regional Director found appropriate. By telegram
dated February 26, 1970, the Board denied the
Request for Review and the Motion to Augment for
the reason that they raised no substantial issues
warranting review, except as to the unit placement of
the timekeeper, cashier, receptionist, and assistant
timekeeper/cashier, which issues, the Board stated,
were best resolved by the challenge procedure.
On February 27, 1970, an election was held, in
which a majority of the valid ballots were cast for the
Union.2 The Union was certified on March 27, 1970.
By letter dated April 16, 1970, the Union requested
the Respondent to bargain collectively. Respondent,
by letter dated April 20, 1970, refused to bargain
collectively with the Union, and on April 22, 1970, the
Union filed the charge upon which these proceedings
are predicated.3 In its Response to the Notice to Show
Cause, Respondent predicates its refusal to bargain
solely upon its contention that the certified unit is
inappropriate. Of the various unit issues raised in its
Request for Review, the Respondent's response raises
specifically only the issues concerning the exclusion
of the workroom employees, timekeeper, and cashier,
2 Following the election , certain challenges were resolved by stipulation
of the parties As the Petitioner 's majority was established following the
count of such challenged ballots, the remaining challenges and the
Petitioner's objections were not resolved
3 In its answer to the complaint Respondent raises a question as to the
filing and service of the charge . Timely filing and service of the charge is
established by unchallenged documentary evidence attached to the Motion
for Summary Judgment
186 NLRB No. 17
THE MAY DEPARTMENT STORES
contending that by excluding them from the unit the
Board erred as a matter of law.
It is well settled that in the absence of newly
discovered or previously unavailable evidence, a
respondent in a Section 8(a)(5) proceeding is not
entitled to relitigate issues which were or could have
been raised in the prior representation proceeding.4
As all contentions now made were raised at the earlier
hearing in the representation case, and were consid-
ered and, except as noted, rejected by the Board in its
denial of review,5 and as all factual allegations of the
complaint are admitted by Respondent's answer to
the complaint or stand admitted by the failure of
Respondent to controvert the averments of the
General Counsel's motion , there are no matters in
issue requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's Motion for
Summary Judgment is granted.
On the basis of the record before it, the Board
makes the following:
FINDINGS OF FACTS
1. THE BUSINESS OF THE RESPONDENT
Respondent , a corporation with a business and
warehouse in Los Angeles , California , is engaged in
the operation of a nationwide retail department store
enterprise. During the course and conduct of its
business operations during the calendar year 1969, a
representative period , the Respondent purchased and
received goods and materials valued in excess of
$50,000 directly from outside the State of California.
During the same period of time , the Respondent sold
products valued in excess of $500 ,000. We find that
Respondent is, and has been at all times material
hereto , an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
New Furniture & Appliance Drivers, Warehouse-
men & Helpers Local 196, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is a labor organization within the
meaning of Section 2 (5) of the Act.
4 Pittsburgh Plate Glass Company v. N.L.R. B., 313 U.S . 146; The
Sheffield Corporation, 163 NLRB 180 ; Collins & Aikman Corporation, 160
NLRB 1750.
5 As noted the Board , while denying the Respondent's Request for
Review with respect to the basic appropriateness of the warehouse unit, left
for subsequent resolution through challenge procedures certain unit
placement issues. Among them were the placement of the timekeeper and
the cashier, whose exclusion from the certified unit the Respondent now
relies on as part of its defense to the complaint . It is not clear from the
record whether the timekeeper and the cashier cast challenged ballots; in
any event, the question of their unit placement has not yet been resolved.
The fact that such question has not yet been resolved is not , however, a
valid defense to the complaint. It is clear that however that question might
ultimately be resolved , its resolution cannot affect either the basic
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceedings
1. The unit
87
The following employees of the Respondent consti-
tute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
All warehouse employees, including heads of stock
and assistants to the furniture buyers, employed at the
Respondent's service building located at Jefferson
Boulevard and Grand Avenue in Los Angeles,
California; excluding all other employees, including
workroom employees, office clerical employees,
timekeeper, cashier, receptionist, assistant timekeeper
and cashier or mail distribution girl, guards, and
supervisors as defined in the Act.
2. The certification
On or about February 27, 1970, a majority of the
employees of Respondent in said unit, in an election
by secret ballot conducted under the supervision of
the Regional Director for Region 21, selected the
Union as their representative for the purpose of
collective bargaining with Respondent, and on or
about March 27, 1970, the Regional Director for
Region 21 certified the Union as the collective-
bargaining representative of the employees in said
unit, and the Union continues to be such representa-
tive.
B. The Request To Bargain and the Respon-
dent's Refusal
Commencing on or about April 16, 1970, and
continuing to date, the Union has been requesting the
Respondent to bargain collectively with it with
respect to wages, hours, and working conditions of the
employees in the appropriate unit. At all times since
on or about April 20, 1970, Respondent admittedly
has refused to recognize and bargain collectively with
the Union as exclusive collective-bargaining repre-
sentative of all employees in said unit.
Accordingly, we find that the Respondent has, since
on or about April 20, 1970, refused to bargain
appropriateness of the certified warehouse unit, the Union 's majority
therein, or the ability of the parties to bargain in the certified warehouse
unit . See MarSalle, Inc., 173 NLRB No. 69 (second through fifth
paragraphs of the section of the TXD entitled "Ruling on Motion for
Summary Judgment"); Houston Chronicle Publishing Company, 130 NLRB
1243, 1245-46. Moreover , as the Respondent did not request review of the
Regional Director 's actions with respect to the unresolved issues, it is, for
the reasons stated in MarSalle, Inc., supra, precluded in this proceeding
from defending its refusal to bargain on the ground that those employees
were improperly excluded from the unit. This does not, however , preclude
bargaining concerning their unit placement or, after compliance with our
order herein, filing a petition seeking to resolve that issue, pursuant to Sec.
102.60(b) of the Board's Rules and Regulations.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively with the Union as the exclusive bargain-
ing representative of the employees in the appropriate
unit, and that, by such refusal, the 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
PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection 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.
THE REMEDY
Having found that the Respondent has engaged 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 represent-
ative of all employees in the appropriate unit and, if
an understanding is reached, embody such under-
standing 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. The May Department Stores Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. New Furniture & Appliance Drivers, Ware-
housemen & Helpers Local 196, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All warehouse employees, including heads of
stock and assistants to the furniture buyers, employed
at the Respondent's service building located at
Jefferson Boulevard and Grand Avenue in Los
Angeles, California; excluding all other employees,
including workroom employees, office clerical em-
ployees, timekeeper, cashier, receptionist, assistant
timekeeper and cashier or mail distribution girl,
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 March 27, 1970, the above-named labor
organization has been the exclusive representative of
all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about April 20, 1970, and at
all times thereafter, to bargain with the 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 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 the Respondent,
The May Department Stores Company, Los Angeles,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with New Furniture & Appliance Driv-
ers, Warehousemen & Helpers Local 196, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All warehouse employees, including heads of stock
and assistants to the furniture buyers, employed at
the Respondent's service building located at
Jefferson Boulevard and Grand Avenue in Los
Angeles, California; excluding all other employ-
ees, including workroom employees, office clerical
employees, timekeeper, cashier, receptionist, as-
sistant timekeeper and cashier or mail distribution
girl, guards, and supervisors as defined in the Act.
THE MAY DEPARTMENT STORES
(b) In any like or related manner interfering with,
restraining or coercing employees in the rights
guaranteed to them by 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its service building located at Jefferson
Boulevard and Grand Avenue, in Los Angeles,
California, copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms
provided by the Regional Director for Region 21,
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 21, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
6 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."
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 with
New Furniture & Appliance Drivers, Ware-
housemen & Helpers Local 196, International
Brotherhood of Teamsters, Chauffeurs, Ware-
89
housemen & Helpers of America, as the exclu-
sive 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 representative of all
employees in the bargaining unit described below,
with respect to wages, hours, and other terms and
conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All warehouse employees, including heads of
stock and assistants to the furniture buyers,
employed at the Respondent's service build-
ing located at Jefferson Boulevard and
Grand Avenue in Los Angeles, California;
excluding all other employees, including
workroom employees, office clerical employ-
ees, timekeeper, cashier, receptionist, assist-
ant timekeeper and cashier or mail distribu-
tion girl, guards, and supervisors as defined
in the Act.
THE MAY DEPARTMENT
STORES 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 compliance
with its provisions may be directed to the Board's
Office, 849 South Broadway, Eastern Columbia
Building, Los Angeles, California 90014, Telephone
213-688-5200.