Whitney Stores, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1970

185 N.L.R.B. 625 (N.L.R.B. 1970)

WHITNEY STORES, INC
Whitney Stores , Inc. and Retail Store Employees
Union , Local No . 300, Retail Clerks International
Association , AFL-CIO. Case 13-CA-9645
September 10, 1970
DECISION AND ORDER
BY CHAIRMEN MILLER AND MEMBERS BROWN AND
JENKINS
On June 8, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, granting General Counsel's motion for
summary judgment, finding no merit in various con-
tentions made by Respondent in its brief in opposition
to the motion for summary judgment, and finding
on the pleadings that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended. The
Trial Examiner recommended that Respondent cease
and desist from such unfair labor practices and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent
filed exceptions, and a brief in support thereof, to
the Trial Examiner's Decision.
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.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
Respondent, Whitney Stores, Inc., Chicago, Illinois,
' We have again examined the Decision and Direction of Election
in Case 13-RC-11919 and made an independent review of the record
of the hearing in the representation case and conclude that the Regional
Director 's findings were correct
625
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE ISSUE
CHARLES W. SCHNEIDER, Trial Examiner: The case arises
on a motion of counsel for the General Counsel for summary
judgment, based upon an admitted refusal by the Respond-
ent to bargain with the certified charging Union, mainly
on the ground that the unit found appropriate by the
Board is inappropriate and further that the Respondent's
objections to the election were erroneously overruled without
hearing.
THE REPRESENTATION PROCEEDING'
Upon petition filed on July 28, 1969, under Section
9 of the National Labor Relations Act (29 U S.C A. 159)
by Retail Store Employees' Union, Local 300, chartered
by Retail Clerks International Association, AFL-CIO, here-
in called the Union, a hearing involving the representation
of employees at one of 10 stores in the Chicago area'
of Whitney Stores, Inc., herein called the Respondent,
was held before a Hearing Officer of the Board on August
25, 1969. The Respondent contended that the appropriate
unit should include all 10 of its Chicago stores Thereafter,
on September 30, 1969, the Regional Director of Region
13 issued his Decision and Direction of Election, in which,
contrary to the Respondent's contention, he found the
single store to constitute an appropriate bargaining unit
and directed an election therein.
On October 2, 1969, Respondent filed with the National
Labor Relations Board a request for review of the Decision
and Direction of Election. Request for review was denied
by direction of the Board on November 12, 1969, on
the ground that the request raised "no substantial issues
warranting review."
On December 11, 1969, a secret ballot election was
conducted in the election unit under the supervision of
the Regional Director Of the approximately 7 eligible
voters 4 cast ballots for the Union, 3 against
On December 18, 1969, Respondent filed post-election
objections to the election, alleging interfering conduct by
the Union during the campaign and the election and, further
' Administrative or official notice is taken of the record in the representa-
tion proceeding , Case 13-RC-11919, as the term "record" is defined
in Section 102 68 and 102 69 (f) of the Board's rules (Rules and Regulations
and Statements of Procedure , National Labor Relations Board, Series
8 as amended) See LTV Electrosystems, Inc, 166 NLRB 938, enfd
388 F 2d 683 (C A 4, 1968), cert denied 393 U S 843, Golden Age
Beverage Co, 167 NLRB No 24, enfd , 415 F 2d 26 (CA. 5, 1969),
Intertype Co v NL RB, 401 F 2d 41 (C A 4, 1968), cert . denied
393 U S 1049 (1969), Follett Corp., 164 NLRB 378 , enfd , 397 F 2d
91 (C A 7, 1968), Sec 9 (d) of the National Labor Relations Act
' The store located at 4047 West Madison Street in Chicago
185 NLRB No. 82
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(in substance) that the eligibility list used for the election
was not current On January 28, 1970, the Regional Director
issued a supplemental decision overruling the objections
and certifying the Union as exclusive bargaining agent
of Respondent's employees in the appropriate unit The
record does not reveal that the Respondent sought review
by the Board of this decision of the Regional Director.
THE UNFAIR LABOR PRACTICE CASE
On February 24, 1970, the Union filed the instant unfair
labor practice charge alleging that since the certification
the Respondent had refused and continues to refuse to
bargain with the Union
On March 16, 1970, the Regional Director issued a
complaint and notice of hearing, alleging that the Respond-
ent had committed unfair labor practices in violation of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Act by refusing since the certification to meet and negotiate
with the Union as the bargaining representative of the
employees in the certified unit
On March 24, 1970, Respondent filed its answer to
the complaint in which it admitted certain allegations of
the complaint and denied others The Respondent admitted
that it had refused to meet and negotiate as alleged in
the complaint In defense, the Respondent asserted that
the election unit was not an appropriate bargaining unit,
and further, that the Respondent's objections to the election
had been improperly overruled, without affording it a hear-
ing thereon. Consequently, the Respondent denied the com-
mission of unfair labor practices Respondent also denied
that it is engaged in interstate commerce at the 4047
West Madison Street store.
On April 3, 1970, counsel for the General Counsel filed
a motion for summary judgment, on the ground there
are no genuine issues as to any material facts.
On April 7, 1970, I issued an order to show cause
on the General Counsel's motion for summary judgment.
On May 5, 1970, Respondent's counsel filed a brief in
opposition to motion for summary judgment, which has
been considered. On May 6, 1970, counsel for the Union
filed their statement in support of motion for summary
judgment, which has been considered
RULING ON MOTION FOR SUMMARY JUDGMENT
despite the existence of substantial credibility issues raised
by the evidence.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence or special
circumstances, not to permit litigation before a Trial Exam-
iner in an unfair labor practice case of issues which were
or could have been litigated in a prior related representation
proceeding.' This policy is applicable even though no formal
hearing on objections has been provided by the board.
Such a hearing is not a matter of right unless substantial
or material issues are raised.'
We come now to the Respondent's contentions summa-
rized above
(1) Jurisdiction: Paragraph 2 of the complaint alleges,
in sum , that the Respondent is a New York corporation
selling women's ready-to-wear clothing at the 4047 West
Madison Street store, that during the past calendar year
the Respondent had a gross volume of business in excess
of $500,000, and that the Respondent's Illinois stores
received directly from out of State clothing valued in excess
of $50,000 Paragraph 3 of the complaint alleges, in sum,
that the Respondent is engaged in commerce. Respondent's
answer denies that it is engaged in interstate commerce
within the meaning of the Act at the 4047 West Madison
Street store. It does not deny the specific allegations of
paragraph 2 of the complaint.
The Respondent's contest of jurisdiction is found not
to be supported.
The Board asserts jurisdiction over all retail enterprises
which, like the Respondent's here, have a gross volume
of business of at least $500,000.5 In addition the Board
asserts jurisdiction over all non-retail operations which have
an annual outflow or inflow across State lines of at least
$50,000.6 Judged by these tests the Respondent is engaged
in commerce and the Board will exert jurisdiction Since
it is the involvement of the enterprise which determines
jurisdiction, it is not controlling that the volume of sales
or out-of-State receipts of a particular segment of it may
not alone meet the requirements. There is thus no issue
as to jurisdiction requiring an evidential hearing.
(2) The unit determination: The Respondent's position
as to this is that the Regional Director's finding that
a single store constitutes an appropriate bargaining unit
is erroneous Furthermore, the Respondent asserts, citing
Pepsi-Cola Buffalo Bottling Co. v. N.L.R.B., 409 F 2d 676
(C A 2, 1969), cert. denied 396 U S. 904, that the Respond-
ent is entitled to agency review of the Regional Director's
Counsel for the General Counsel contends that all issues
in dispute were decided by the Board in the representation
case and that he is therefore entitled to summary judgment
as a matter of law.
The Respondent opposes the motion for summary judg-
ment, asserting that there are evidentiary issues. The
Respondent therefore requests that a hearing be held before
a Trial Examiner at which the unit determination and other
issues be litigated.
More specifically the Respondent's position is that (1)
it is not engaged in commerce at the West Madison Street
store, (2) the Regional Director's unit determination was
incorrect, and (3) the Regional Director erroneously failed
to provide a hearing on the objections to the election,
' Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517
(C A 7, 1967), cert denied 389 U S 1041 Metropolitan Life Insurance
Company, 163 NLRB 579 See Pittsburgh Plate Glass Co v NLR.B,
313 U S 146, 162 (1941) NLRB Rules and Regulations , Sections 102 67(f)
and 102 69(c)
4 OK. Van and Storage, Inc, 127 NLRB 1537, enfd 297 F2d 74
(C A 5, 1961) See NLRB v Air Control Window Products, Inc,335
F 2d 245, 249 (C A 5, 1964) "If there is nothing to hear, then a
hearing is a senseless and useless formality " See also NL R B v Bata
Shoe Co, 377 F 2d 821, 826 (C A 4, 1967), cert denied 389 U S
917 "there is no requiremen t, constitutional or otherwise, that there
be a hearing in the absence of substantial and material issues crucial
to determination of whether NLRB election results are to be accepted
for purposes of certification "
' Carolina Supplies and Cement Co, 122 NLRB 88
Siemons Mailing Service, 122 NLRB 81
WHITNEY STORES, INC. 627
decision Assuming that this is so, the Respondent will
have opportunity to request the Board for review when
the matter reaches the Board. The Trial Examiner, however,
is without authority to review the Board's decision in
the representation case to the effect that the Employer's
request for review raised no substantial or material issues
In the absence of newly discovered evidence the Board's
disposition of the representation case is, at this stage of
the proceeding, the law of the case and binding on the
Trial Examiner.'
(3) Objections to the election: Here, too, the decision
of the Regional Director is final for two reasons. (1) the
ordinary rule forbidding relitigation of representation deci-
sions in subsequent related unfair labor practice cases,
and (2) the apparent failure of the Respondent to apply
for review of the Regional Director's decision. Board rule
102.67(f) made applicable to postelection objections by the
provisions of Board rule 102.69(c) provides, in part, that
Failure to request review shall preclude such parties
from relitigating, in any related subsequent unfair labor
practice proceeding, any issue which was, or could
have been, raised in the representation proceeding.
By failing to apply for review of the Regional Director's
supplemental decision and certification of January 28, 1970,
the Respondent waived its right to press in this proceeding
its objections to the election in the representation proceeding.
N.L.R.B. v. Rexall Chemical Co., 370 F.2d 363 (C.A.
1, 1967); N.L.R.B. v. Southbridge Sheet Metal Works, 380
F 2d 851 (C.A. 1, 1967); N.L.R.B. v Thompson Transport
Co., Inc., 406 F.2d 698 (C A. 10, 1969).
There thus being no resolved matters requiring an
evidentiary hearing, the motion of counsel for the General
Counsel for summary judgment and issuance of Trial
Examiner's Decision is granted
Upon the basis of the record before me, I make the
following further.
' The Board has held that Trial Examiners are required to follow
Board precedents until the Board or the Supreme Court overrules them.
Prudential Insurance Agents, 199 NLRB 768, Ranco, Inc, 109 NLRB
998, In 8 , Lenz Co, 153 NLRB 1399 This is so, even though there
may be contrary authority in the courts of appeals Iowa Beef Packers,
144 NLRB 615 The Board has not indicated that it has accepted the
Pepsi Cola opinion for all future cases In such a situation the Trial
Examiner must follow the Board 's precedent, namely, that a denial of
review of the Regional Director 's decision in a representation case pre-
cludes relitigation of any such issues in any related subsequent unfair
labor practice proceeding Rules and Regulations , NLRB , Section
102 67 (1) See also Teamsters Local 390 (U & Me Transfer ), 119 NLRB
852, Novak Logging Co , 119 NLRB 1573 , Scherrer Co, 119 NLRB
1587 But cf NLRB v Harrah's Club, 403 F 2d 865, 870 (CA
9, 1968)
The denial of certiorari in the Pepsi Cola case is not diapositive
Justice Frankfurter said that "such a denial carries with it no implication
whatever regarding the [Supreme ] Court's views on the merits of a
case which it has declined to review " Maryland v . Baltimore Radio
Show, 338 U S 912, 919 (1950)
It is to be noted that the Court of Appeals for the First Circuit
has declined to follow the view expressed by the Second Circuit in
the Pepsi Cola opinion In NL RB v Magnesium Casting Co, 427
F 2d 114 ( 1970), the First Circuit held that the Board is not required
to review the Regional Director 's determinations in a representation
case in which , as here , he is exercising delegated authority to decide
such cases
FINDINGS AND CONCLUSION
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
)f, the laws of the State of New York
At all times material herein, Respondent has maintained
a retail establishment at 4047 West Madison Street, Chicago,
Illinois, where it is, and has been at all times material
herein, engaged in the sale of women's ready-to-wear cloth-
ing items
During the past calendar year, a representative period,
the Respondent, in the course and conduct of its business
operations, had a gross volume of business in excess of
$500,00, and it received at its stores in Illinois clothing
items valued in excess of $50,000, which were shipped
to such stores directly from places outside the State of
Illinois.
Respondent is now 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.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act 8
III THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All regular full-time and regular part-time selling and
non-selling employees at the Employer's store located
at 4047 West Madison Street, Chicago, Illinois, but
excluding the store manager, casual employees, profes-
sional employees, porters, guards and supervisors as
defined in the Act.
At all times since January 28, 1970, the Union has
been the certified representative for the purpose of collective
bargaining of all employees in the appropriate unit, and
by virtue of Section 9(a) of the Act, has been, and is
now, the exclusive representative of all employees in said
unit for the purposes of collective bargaining.
On or about January 30, 1970, the Union requested
the Respondent to bargain, and on or about February
13, 1970, the Respondent refused, and continues to refuse
to bargain with the Union. The Respondent thereby engaged
in unfair labor practices in violation of Section 8(a)(5)
of the Act and has interfered with, restrained, and coerced
employees in violation of Section 8(a)(l) of the Act.
Though the answer denies knowledge and information sufficient
to form a belief as to this allegation of the complaint, the Respondent
stipulated in the representation case that the Union is a labor organization
within the meaning of the Act, and the Regional Director found the
Union to be a labor organization The Respondent did not seek review
of that finding, which consequently became final and not subject to
relitigation here
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following:
ORDER
tive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the 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 date of receipt of this Decision, what
steps the Respondent has taken to comply herewith."
A. For the purpose of determining the duration of the
certification the initial year of certification shall be deemed
to begin on the date the Respondent commences to bargain
in good faith with the Union as the recognized exclusive
collective-bargaining representative in the appropriate unit.'
B. Whitney Stores, Inc., its officers, agents, successors,
and assigns shall:
1 Cease and desist from:
(a) Refusing to bargain collectively with Retail Store
Employees Union, Local 300, Retail Clerks International
Association, AFL-CIO, as the exclusive collective-bargain-
ing representative of the following employees.
All regular full-time and regular part-time selling and
nonselling employees at the Employer's store located
at 4047 West Madison Street, Chicago, Illinois, but
excluding the store manager, casual employees, profes-
sional employees, porters, guards and supervisors as
defined in the Act.
(b) Interfering with the efforts of the Union to negotiate
for or represent employees as collective-bargaining represent-
ative.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Retail Store
Employees Union, Local 300, Retail Clerks International
Association, AFL-CIO, as the exclusive representative of
all employees in the categories described above, with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment, and embody in a
signed agreement any understanding reached.
(b) Post at its places of business in Chicago, Illinois,
copies of the notice attached hereto marked "Appendix "1'
Copies of said notice, on forms provided by the Regional
Director for Region 13, shall, after being duly signed by
an authorized representative of the Respondent, be posted
by the Respondent immediately upon receipt thereof and
be maintained by the Respondent for a period of 60 consecu-
° The purpose of this provision is to insure that the employees in
the appropriate unit will be accorded the services of their selected bargain-
ing agent for the period provided by law See Mar-Jac Poultry Co , 136
NLRB 785, Commerce Co d/b/a Lamar Hotel, 140 NLRB 226. 229, 328
F 2d 600 (C A 5, 1964), cert denied 379 U S 817, Burnett Construction
Co 149 NLRB 1419, 1421, 350 F 2d 57(C A 10, 1965).
10 In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , and recommended Order
herein shall , as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
Order, and all objections thereto shall be deemed waived for all purposes
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 "
" In the event these recommendations are adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 13, in writing, within 10 days from date of this Order,
what steps the Respondent has 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 with
RETAIL STORE EMPLOYEES UNION, LOCAL
NO. 300, RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL-CIO, as the exclusive collective-
bargaining representative of all our following employ-
ees.
All regular full-time and regular part-time selling
and nonselling employees at our store located
at 4047 West Madison Street, Chicago, Illinois,
but excluding the store manager, casual employees,
professional employees, porters, guards and super-
visors as defined in the Act
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees as exclu-
sive collective-bargaining representative.
WE WILL bargain collectively with the Union as
the exclusive collective-bargaining representative of the
employees in the categories listed above, and if an
understanding is reached we will sign a contract with
the Union
WHITNEY STORES, INC.
(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, 881
U.S. Courthouse and Federal Office Building, 219 S. Dear-
born Street, Chicago, Illinois 60604, Telephone 312-353-
7572.