S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Oct 21, 1969

179 N.L.R.B. 225 (N.L.R.B. 1969)

S. H KRESS & CO.
S. H. Kress & Company and Tulsa General Drivers,
Warehousemen and Helpers Union , Local No. 523
Affiliate of International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 16-CA-3513
October 21, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 4, 1969, Trial Examiner Charles W.
Schneider issued his Decision and June 16, 1969, his
Supplemental Decision, in the above-entitled
proceeding, finding that Respondent had engaged in
and and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the Trial Examiner's Decision and Trial
Examiner's Supplemental Decision hereto attached.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and Supplemental Decision,
and a supporting brief.
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 considered the Trial Examiner's
Decision and his Supplemental Decision, the
exceptions and brief, and the entire record in this
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
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, S. H Kress & Company,
Tulsa, Oklahoma, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
Upon petition filed under Section 9(c) of the National
Labor Relations Act (29 U S C A. 159(c)) on February
'Official notice is taken of the record in the representation proceeding,
Case 16-RC-4849 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 No 81, enfd 388 F 2d 683 (C A 4,
1968), Golden Age Beverage Co. 167 NLRB No 24, Intertype Co v
Penello, 269 F Supp 573 (D C Va 1967), Intertype Co v N L R B , 401
F 2d 41 (C A 4, 1968), Follett Corp , et al, 164 NLRB No 47, enfd 397
F 2d 91 (C A 7, 1968), Section 9(d) of the NLRA
225
23, 1968, by Tulsa General Drivers, Warehousemen and
Helpers Union, Local No. 523, affiliate of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, a
hearing was held on March 21, 1968, which resulted in the
issuance, on March 29, 1968, by the Regional Director for
Region 16, of a Decision and Direction of Election in an
appropriate bargaining unit, described hereinafter, of the
employees of S. H Kress & Company, herein called the
Respondent
Pursuant to the Decision and Direction of Election, an
election by secret ballot was conducted by the Regional
Director on May 10, 1968, among the employees in the
appropriate unit to determine the question concerning
representation Upon conclusion of the balloting, the
parties were furnished a tally of ballots which showed that
of approximately 28 eligible voters, 18 cast valid votes for
and 9 cast valid votes against the Union, and 1 cast a void
ballot.
On May 15, 1968, Respondent filed timely objections to
conduct affecting the results of the election in which it
alleged (1) that during the campaign the Union had
engaged in deliberate trickery and material
misrepresentations by means of oral statements, campaign
material, literature and other campaign media; (2) that the
Union had circulated false and misleading information
about the employer and had injected extraneous issues
into its organizing campaign, (3) that the Union had
coerced the employees to vote for the Union, and (4) that
while the employees were voting, conditions occurred
which prevented the employees from making a free and
untrammeled choice in the election.
On July 17, 1968, the Regional Director issued a
Supplemental Decision and Certification of
Representative, in which he stated that he had conducted
an investigation of the objections, found that they did not
raise any material or substantial issues affecting the
results of the election, and overruled them in their
entirety Finding that the Tally of Ballots showed that a
majority of the valid votes had been cast for the Union,
the Regional Director certified it as the exclusive
bargaining representative of the employees in the
appropriate unit
On July 29, 1968, the Board extended the date for
receipt of a Request for Review of the Regional Director's
Supplemental Decision and Certification of Representative
to August 12, 1968. Thereafter, on August 9, 1968,
Respondent timely filed its Request for Review with the
Board The Request for Review was denied by the Board
on August 23, 1968
The Complaint Case
On January 24, 1969, the Union filed the unfair labor
practice charge involved in the instant case, in which it
alleged that since on or about December 1, 1968, the
Respondent has refused to bargain collectively with the
Union
On February 19, 1969, the General Counsel, by the
Regional Director for Region 16, issued a Complaint and
Notice of Hearing alleging that the Respondent 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 to bargain with the Union upon request In due
course, on March 3, 1969, the Respondent filed its answer
to the complaint in which certain allegations of the
179 NLRB No. 38
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint were admitted and others denied.
In its Answer, the Respondent admits the following
allegations of the complaint (1) filing and service of the
charge, (2) certain jurisdictional facts, (3) that the Union
is a labor organization within the meaning of Section 2(5)
of the Act, (4) that the unit is appropriate, (5) that an
election was held, (6) that the Union has requested the
Respondent to bargain collectively, and (7) that the
Respondent has refused and continues to refuse to
bargain. Respondent denies the allegations contained in
paragraphs 12, 16, 17, and 18 of the complaint to the
effect (1) that the Union is the representative of the
employees in the appropriate unit for purposes of
collective bargaining, and (2) that by the refusal to
bargain, the Respondent engaged in, and is engaging in
unfair labor practices affecting commerce within the
meaning of the Act.
Respondent affirmatively asserts in its answer that (1)
the election was invalid because the Union made certain
substantial misrepresentations of material facts to the
employees in the appropriate bargaining unit prior to the
election and (2) that the certification is null and void as a
matter of law since Respondent was denied a hearing on
substantial issues of law and fact raised by its Objections
to Conduct Affecting the Results of Election and its
Request for Review of the Regional Director's
Supplemental Decision and Certification of
Representative.
Under date of March 11, 1969, counsel for the General
Counsel filed a Motion to Strike Portions of Respondent's
Answer to Complaint and Motion for Judgement on the
Pleadings in which he contends that the pleadings,
considered together with the official Board record in the
underlying representation proceeding, Case 16-RC-4849,
raise no issues requiring a hearing, that Respondent's
defense set forth in its answer raises no litigable questions
of fact, and to the extent of the Motion to Strike is
"sham" and "frivolous," concluding that as a matter of
law Respondent has no valid defense to the complaint
On March 13, 1969, I issued an Order to Show Cause
returnable April 1, 1969 (subsequently extended to April
7), on the General Counsel's motions.
The Respondent has filed a Response to the Order to
Show Cause and a supporting brief. No other responses or
briefs have been received.
In its response and brief the Respondent opposes the
Motion to Strike and the Motion for Judgement on the
Pleadings. Specifically the Respondent asserts the validity
of its answer It further states that its objections to the
election were erroneously overruled, that it presented a
prima facie case of interference with the election in
substantial and material respects on which a hearing was
required, that most, if not all the evidence relating to
those objections is in the possession of the Union or of
third parties over whom Respondent has no control; that
since Respondent was not entitled to the power of
subpoena prior to issuance of the complaint all such
evidence was previously unavailable to the Respondent
and that Respondent has now received some 40 subpenas
to produce this evidence in the complaint proceedings. In
addition the Respondent asserts that it has previously
unavailable evidence (specifically union records) showing
that "contrary to the Regional Director's findings, [and
the Union's campaign literature] the Union charges more
than $7 for dues." (Brief p. 12)
On May 8, 1969, I issued an Order affording the
Respondent opportunity to submit further information
from which I could determine whether there is new
evidence requiring hearing Specifically I wished to know
whether the Respondent was asserting the existence of
evidence contradicting a finding of the Regional Director
to the effect that there was no evidence that the Union
charged more than $7 per month dues. The order
suggested the submission of copies of union records as to
the facts, or (if those were not in Respondent's possession)
a statement by Counsel as to the basis for their belief that
the records would disclose such facts. Additionally the
order suggested the submission of a statement as to
whether the evidence was in existence at the time of filing
the objections and if so why it could not have been
discovered then with the exercise of due diligence
No response has been received to that order.
RULING ON MOTION FOR SUMMARY JUDGMENT
As has been seen, the Respondent's basic position is
that the representation case was wrongly decided and that
the Respondent is entitled to a hearing on its objections.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
permit litigation before a Trial Examiner in a complaint
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 and material issues are
raised.'
The Board denied the Respondent's request for review
of the Regional Director's determination that the
Respondent's objections to the election were without
merit, and his certification of the Union In this
connection the Board said that the request for review
raised "no substantial issues."
Those conclusions are binding on the Trial Examiner.
As has been seen, though afforded opportunity to do
so, the Respondent did not submit information necessary
for me to find that the Respondent has previously
unavailable evidence to support its contention that the
Union misrepresented the amount of union dues. Though
the Respondent also asserts that union records supporting
some of its other objections were not previously available
because they were in the possession of the Union, no
showing is made as to what that evidence consists of, or
what specifically the Respondent believes it will show.
Thus it cannot be concluded that the Respondent has
material and substantial previously unavailable evidence
warranting hearing now on its objections, or grounds for
belief that such evidence exists.
The remaining material facts being uncontested or
established, there are no unresolved matters requiring
hearing, and the General Counsel's Motion for Judgment
on the Pleadings is granted. However, the General
'Krieger-Ragsdale & Co. Inc, 159 NLRB 490, enfd 379 F 2d 517,
(C A 7, 1967), cert denied 389 U S 1041, N L R B v Macomb Pottery,
376 F 2d 450 (C A 7, 1967), Howard Johnson Company. 164 NLRB No
121, Metropolitan Life Insurance Company, 163 NLRB No 71 See
Pittsburgh Plate Glass Co. v N L R B. 313 U S 146, 162 (1941), NLRB
Rules and Regulations, Section 102 67(f) and 102 69(c)
'O K Van and Storage. Inc. 127 NLRB 1537, enfd 297 F 2d 74 (C A
5, 1961) See Air Control Window Products. Inc, 355 F 2d 245, 249 (C A
5, 1964) "If there is nothing to hear, than a hearing is a senseless and
useless formality " See also N L R B v. Bata Shoe Co . 377 F 2d 821, 826
(C A 4, 1967) " there is no requirement, 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 "
S H. KRESS & CO.
Counsel's Motions to Strike Portions of Respondent's
Answer as sham is denied. The portions of the Answer
referred to deny the validity of the overruling of the
Respondent's objections to the election and thus the
validity of the certification The basis for the General
Counsel's Motion to Strike is essentially that those issues
were determined in the representation case and may not
be relitigated The General Counsel's premises as to
relitigation are of course sound, as we have seen, but it
does not follow that the Respondent's denial of the
validity of the determinations in the representation case is
"sham" or "frivolous." Such denials are essential to
review of the determinations, for without them the
Respondent would have no issue to contest before the
Board or the Courts
On the basis of the record I make the following further
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
S. H. Kress & Company, the Respondent is, and has
been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of the
State of New York, having its principal offices in New
York City, New York, and operating a chain of variety
stores in several States of the United States, including the
State of Oklahoma. The only location involved in this
proceeding is the Respondent's warehouse complex at
4953 South 48th West Avenue, Tulsa, Oklahoma.
In the course and conduct of its business operations,
during the past 12-month period, which is representative,
the Respondent purchased goods and materials valued in
excess of $50,000 from outside the State of Oklahoma
which were transferred to its warehouses in the State of
Oklahoma directly from other states of the United States.
During this same period of time, the Respondent's gross
volume of retail sales exceeded $500,000 value.
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
Iii THE UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All employees working in the Respondent's warehouses
located at 4953 South 48th West Avenue, Tulsa,
Oklahoma, and excluding office clerical employees,
professional employees, watchmen, guards, and
supervisors as defined in the Act.
On May 10, 1968, a majority of Respondent's
employees in the said unit designated and selected the
Union as their collective bargaining representative in a
secret ballot election conducted under the supervision of
the Regional Director for Region 16 of the National
Labor Relations Board. On July 17, 1968, the Regional
Director certified the Union as the exclusive collective
bargaining representative of the employees in the
appropriate unit. Respondent's request that the Board
review the Regional Director's certification was denied on
227
August 28, 1968.
At all times since July 17, 1968, and continuing to the
present, the Union has been the representative for the
purpose of collective bargaining of the employees in the
said unit, and by virtue of Section 9(a) of the Act has
been, and is now, the exclusive representative of the
employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment and other terms and conditions of
employment.
It is admitted and found that on or about October 15,
1968, the Union requested the Respondent to meet with it
for the purpose of collective bargaining with respect to the
employees in the appropriate unit, and that on or about
December 1, 1968, Respondent refused and continues to
refuse to do so.
By thus refusing to bargain collectively with the Union
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and (5) and 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend that the Board
issue the following
ORDER
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 bargaining representative in the appropriate unit '
B. S. H. Kress & Company, its officers, agents,
successors and assigns shall:
1 Cease and desist from:
(a) Refusing to bargain collectively with Tulsa General
Drivers, Warehousemen and Helpers Union, Local No
523, affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of the employees in the
following appropriate bargaining unit
All employees working in the Respondent's warehouses
located at 4953 South 48th West Avenue, Tulsa,
Oklahoma, and excluding office clerical employees,
professional employees, watchmen, guards, and
supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclusive
collective bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Upon request bargain collectively with Tulsa
General Drivers, Warehousemen and Helpers Union,
Local No. 523, affiliate of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the employees
in the appropriate unit 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.
'The purpose of this provision is 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 See Mar-Jac Poultry Co , Inc , 136
NLRB 785, Commerce Co dlbla Lamar Hotel, 140 NLRB 226, 229, 328
F 2d 600 (C A 5), cert denied 379 U S 817 ( 1964), Burnett Construction
Co, 149 NLRB 1419, 1421, 350 F 2d 57 (C A 10, 1965)
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its office and place of business at the Tulsa,
Oklahoma warehouses, copies of the notice attached
hereto marked "Appendix."5 Copies of said notice, on
forms to be furnished by the Regional Director for Region
16, 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 it for a period of 60 consecutive 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 16, in
writing, within 20 days from receipt of this recommended
Order what steps the Respondent has taken to comply
herewith 6
the appropriate unit and if an understanding is reached
we will sign a contract with the Union
Dated By
S. H. KRESS & COMPANY
(Employer)
(Representative ) (Title)
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 may be directed to
the Board's Regional Office, 8A24 Federal Office
Building, 819 Taylor Street, Fort Worth, Texas,
Telephone 817-334-2921
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
'In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words
"Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 16, in writing, within 10 days from receipt of this Order what steps
the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT refuse to bargain collectively with
Tulsa General Drivers, Warehousemen and Helpers
Union, Local No 523, affiliate of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collective
bargaining representative of all our following
employees
All employees working in our warehouses located at
4953 South 48th West Avenue, Tulsa, Oklahoma, and
excluding office clerical employees, professional
employees, watchmen, guards, and supervisors as
defined in the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective-bargaining representative, or in any like or
related manner interfere with employee efforts at
bargaining
WE WILL bargain collectively with the Union as
exclusive bargaining representative of the employees in
On June 4, 1969, a Trial Examiner's Decision issued in
this case and on the same day the case was transferred to
the Board. In the Decision, section entitled "The
Complaint Case," ninth paragraph, it was stated that no
response had been received to the Trial Examiner's Order
of May 8, 1969, entitled "Order Concerning Asserted
Previously Unavailable Evidence," which order afforded
the Respondent opportunity to submit further information
from which it could be determined whether there was new
evidence requiring hearing.
On June 6, 1969, the Respondent filed a motion with
the Board requesting that the case be remanded to the
Trial Examiner for reconsideration of his decision, on the
ground that as the result of clerical error Respondent's
Response to the Order of May 8 had not been served on
the Trial Examiner. On June 10, 1969, the Board granted
the Respondent's motion and remanded the proceeding to
the Trial Examiner for reconsideration of his Decision in
the light of said Response, and for the issuance of a
Supplemental Decision.
I have reconsidered the Trial Examiner's Decision in
the light of the Respondent's Response to the order of
May 8, 1969, and have concluded that the Response does
not disclose that the Respondent has any new evidence
which was not previously submitted in the representation
proceeding. Nor does the Response, in my judgment,
disclose reasonable ground to conclude that new evidence
exists The Response is essentially a reiteration of the
Respondent's contentions previously presented to the
Regional Director and to the Board, based upon the
evidence which the Respondent presented to the Regional
Director The Respondent has not therefore, in my
opinion, shown probable existence of newly discovered or
previously unavailable evidence warranting hearing. There
being no apparent material issue litigable before a Trial
Examiner, the findings, conclusions, and recommendations
contained in the Trial Examiner's Decision of June 4,
1969, are reaffirmed