J. W. Mays, Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1980

250 N.L.R.B. 501 (N.L.R.B. 1980)

J W. MAYS. INC
J. W. Mlays, Inc. and Local 888, United Food &
Commercial Workers Union, AFI.-CIO. Case
2-CA- 17089
July 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBEI RS
JI:NKINS AND PE NE I O
Upon a charge filed on February 19, 1980, by
Local 888, United Food & Commercial Workers
Union, AFL-CIO, herein called the Union, and
duly served on J. W. Mays, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 2, issued a complaint on February 28,
1980, 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 and 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 December
21, 1979, following a Board election in Case 2-RC-
18522, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about February
12, 1980, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting to do so. On March 10,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On March 28, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 1,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
Cause.
I Official notice is taken of the record in the representation przoceed-
ing. Case 2-RC-18522, a% the term "record" is defined in Seca. 102 68
and 102.69(g) of the Board's Rule% and Regulations. Series 8, as amended
See LTV Elrctro.sytems. Inc.. 166 NLRH 9.8 (1967). enfd. 388 F2d 683
(4th Cir. 1968); Goldenr Age Beverag Co.. 167 NLRH 151 (1967) cinfd 415
F 2d 26 (5th Clr 1969) Intrrertypc Co. v APenrl. 269 F Supp 573
(DCVa. 1967).; Fobltr Corp.. 164 NLRB 378 (1967). clifd 397 F2d 91
(7th Cir 1968). Sec 9(d) of Ihe NL.RA. as amended
250 NLRB No. 82
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 in its response
to the Board's Notice To Show Cause, Respondent
admits that it has refused to bargain with the
Union, but it contends that the Union's certification
was improper because, in the underlying Decision
and Direction of Election by the Regional Direc-
tor, it was incorrectly found that a single-store unit
was appropriate. Respondent also argues that it has
evidence that the Union is organizing its entire
eight-store chain and that the representation case
should be reopened and evidence received as to the
extent of the Union's organizational efforts.
The General Counsel in his Motion for Summary
Judgment noted that the Board has presumptively
held a single-store unit in a retail chain to be ap-
propriate for collective-bargaining purposes,2 and
further noted that, in a previous case involving this
same employer, similar arguments were made and
rejected by the Board.3 In the instant case, Re-
spondent, after the hearing in the representation
case, raised on November 29, 1979, the "extent of
organization" argument in its motion to reopen the
record with the Regional Director and, on the
same date, it filed a request for review with the
Board. On December 7, the Regional Director
denied the motion, and on December 13 the Board
denied Respondent's request for review, on the
grounds that the motion raised no substantial issue
warranting review.
Review of the record herein establishes that the
Union won the election conducted on December
13, 1979, and was certified as bargaining repre-
sentative on December 21, 1979, no timely objec-
tions having been filed.
On January 25, 1980, the Union requested Re-
spondent to meet and bargain collectively with it
as the certified representative of those employees in
the described unit. On February 12, 1980, Respond-
ent refused because it disagreed with the Board's
unit finding.
The Union filed charges on February 19, 1980,
alleging violations of Section 8(a)(5) and (1) of the
Act, and the Regional Director for Region 2 on
February 28, 1980, issued a complaint and notice of
hearing. On March 26, 1980, the General Counsel
IHaug Drug ('o,,paoy. Itncporarurd. 16 NLRH 877 19h68)
J. 14('. Muv. 11ic . 147 NLRBH h8 (1964)
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I)t'CISI()NS ()OF NATIONAL LABO()R R.lATIO()NS BO)ARD
filed its "Petition for Summary Judgment and De-
cision and Order" with the Board, and on April 1,
1980, the Board issued its order transferring the
proceeding to the Board and Notice To Show
Cause.
In its response, filed on April 10, 1980, Respond-
ent admitted the accuracy of the facts as set out in
the Motion for Summary Judgment, but raised
again the argument that the record in the represen-
tation case should be reopened for the purpose of
taking testimony regarding the Union's extent of
organization.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 4
All issues raised by Respondent in this proceed-
ing were or could have been litgated in the prior
representation proceeding, and 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 could 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. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
J. W. Mays, Inc., a New York corporation, with
its main office located at 510 Fulton Street, Brook-
lyn, New York, is engaged in the retail operation
of department stores in New York City, Long
Island, and upstate New York. Annually, the Em-
ployer derives gross revenues from sales in excess
of $500,000, and purchases goods and materials
valued in excess of $50,000 directly from firms lo-
cated outside the State of New York.
We find, on the basis of the foregoing, that Re-
spondent 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.
See Pittsburgh Plate Glats Co. v. NL.R.B., 313 U.S. 146. 162 (1941);
Rules and Regulation% of Ihe Board, Secs 102.67(f and 102 69 (c)
II. THi' LABOR ORGANIZATION INVOIVI.D
Local 888, United Food & Commercial Workers
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
111. TIHI: UNI:AIR I.ABOR PRACTIICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute 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 the Employer
at its 44 East 14th Street, New York store, includ-
ing receiving, buyer, money room and payroll cler-
icals, but excluding managers and assistant manag-
ers, buyers and assistant buyers, management train-
ees, store doctor and nurse, confidential employees,
seasonal employees, guards and supervisors as de-
fined in the Act.
2. The certification
On December 13, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 2, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on Decem-
ber 21, 1979, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 25, 1980, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about February 12, 1980, and 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 Respondent has, since
February 12, 1980, 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, Respond-
ent has engaged in and is engaging in unfair labor
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I W MAAYS, INC
practices within the meaning of Section 8(a)(5) and
( ) of the Act.
IV. lit III (t-C 1 OF1 THE UNI SIR I ABOR
PRACTICIS UPON COMMI-RC.i
The activities of Respondent set forth in section
111, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. J. W. Mays, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 888, United Food & Commercial Work-
ers Union, 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 the Employer
at its 44 East 14th Street, New York store, includ-
ing receiving, buyer, money room and payroll cler-
icals, but excluding managers and assistant manag-
ers, buyers and assistant buyers, management train-
ees, store doctor and nurse, confidential employees,
seasonal employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since December 21, 1979. 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 February 12, 1980,
and at all times thereafter. to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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, J.
W. Mays, Inc., New York, New York, 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 Local 888, United
Food & Commercial Workers Union, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time selling and
nonselling employees employed by the Em-
ployer at its 44 East 14th Street, New York
store, including receiving, buyer, money room
and payroll clericals, but excluding managers
and assistant managers, buyers and assistant
buyers, management trainees, store doctor and
nurse, confidential employees, seasonal em-
ployees, guards and supervisors as defined in
the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
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DI):CISIONS O() NATI)ONAI I LAB()R RELATI()NS BO)ARD
2.Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its 44 East 14th Street store copies of
the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 2, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable 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 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
r Iin 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 ot the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
No-ricE To EMPIOYEES
POSTED BY ORDIER OF THE
NATIONAl. LABOR RELAT1IONS BOARD
An Agency of the United States Government
Wri WILt NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Local 888, United Food & Commercial
Workers Union, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WII.L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions 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 the
Employer at its 44 East 14th Street, New
York store, including receiving, buyer,
money room and payroll clericals, but ex-
cluding managers and assistant managers,
buyers and assistant buyers, management
trainees, store doctor and nurse, confidential
employees, seasonal employees, guards and
supervisors as defined in the Act.
J. W. MAYS, INC.
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