A. G. Pollard Co.

National Labor Relations Board - Board Decisions

Dec 2, 1966

161 N.L.R.B. 1454 (N.L.R.B. 1966)

1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-2159.
A. G. Pollard Company and Local 372, Retail Clerks International
Association , AFL-CIO. Case 1-CA-5451. December 2, 1966
DECISION AND ORDER
On August 15, 1966, Trial Examiner Charles W. Schneider issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions to the Trial
Examiner's 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 [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has considered the Trial Examiner's Decision, the
exceptions, the brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding I
Pursuant to a Decision and Direction of Election by the Regional Director for
Region 1 of the National Labor Relations Board, herein called the Board , an election
by secret ballot was conducted on December 13, 1965, among the employees of A. G.
Pollard Company, herein called the Respondent.2 In this election, Local 372, Retail
Clerks International Association, AFL-CIO, herein called the Union, received a
IOfficial notice is taken of the representation proceeding. See Section 9(d) of the Na-
tional Labor Relations Act.
2 The bargaining unit found appropriate by the Regional Director, and in which the elec-
tion was held, is as follows :
All full-time and regular part-time selling and nonselling employees at the Respond-
ent's Lowell, Massachusetts retail store, including cash auditors, commission person-
nel in the Ladies Ready-to-Wear Department, Cosmetic Department employees and
watchmen /maintenance employees, but excluding part-time employees working less
than fifteen ( 15) hours per week, leased department employees. commission personnel
in the Furniture , Rugs, Fur, Appliance, Menswear and Interior Decorating Depart-
ments, employees of the Old Homestead House, Bedford, Massachusetts, confidential
secretaries , professional employees , guards, supervisory trainees, department heads,
assistant buyers, assistant buyer trainees, buyers and all other supervisors as defined
in Section 2(11) of the Act.
161 NLRB No. 128.
A. G. POLLARD COMPANY 1455
plurality of the votes cast. However challenged ballots were sufficient to affect the
results of the election . Thereafter, both the Union and the Respondent filed timely
objections to conduct affecting the results of the election . The Regional Director
having investigated the objections issued a Supplemental Decision overruling the
objections and directing the opening of certain challenged ballots and sustaining
the challenges as to two others . The Respondent thereupon filed a Request for
Review of the Supplemental Decision with the Board.
On March 4, 1966, the Regional Director issued a Second Supplemental Decision
indicating that, after opening a number of the challenged ballots, the Union had
received a majority of all the ballots cast in the December 13, 1965, election. The
issuance of a certification of representative was deferred, however, pending the
Board's disposition of Respondent's request for review of the first Supplemental
Decision. Thereafter, on April 4, 1966, the Board denied Respondent's Request for
Review. Under Section 102.67(f) of the Board's Rules and Regulations, Series 8,
as amended , the Board 's denial of review constituted an affirmance of the Regional
Director 's action and precludes relitigation of any such issues in a related subse-
quent unfair labor practice proceeding. Accordingly on April 6, 1966, the Regional
Director issued a certification of representative certifying the Union as the collective-
bargaining representative for the employees in the appropriate unit.
The Complaint Proceeding
Upon a charge filed by the Union on May 3, 1966, the General Counsel caused a
complaint and notice of hearing to be issued alleging that the Respondent com-
mitted unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by
refusing since on or about April 18, 1966, to bargain with the Union upon demand.
In due course the Respondent filed its answer to the complaint in which it denied
the commission of unfair labor practices by asserting : that the unit was not appro-
priate for the purposes of collective bargaining; 3 that the election results were
invalid because certain ballots were improperly counted and if there were a major-
ity it was obtained under duress and coercion; and that the majority was obtained
improperly and illegally as a result of a speech containing false statements and
threats illegally and improperly attempting to influence , and influencing the elec-
tion; that the Union was not, therefore, properly certified as the exclusive repre-
sentative of the unit employees ; and that the Union never requested Respondent to
bargain collectively. Other material allegations of the complaint were admitted.
On July 1, 1966, the General Counsel filed a motion for judgment on the plead-
ings based on the ground that the material issues or facts raised in Respondent's
answer had already been litigated in the representation case and were not now open
to relitigation. Upon an Order to Show Cause issued by Trial Examiner Charles W.
Schneider on July 8, 1966, returnable July 18, directing the parties to show cause,
if any, as to whether or not the motion for judgment should be granted, the
Respondent filed an opposition to the General Counsel's motion for judgment on
the pleadings.
Ruling on the Motion for Judgment on the Pleadings
In its opposition to the motion for judgment on the pleadings the Respondent's
first contention is that the Union is not a properly designated representative for
the purposes of collective bargaining; in sum that the representation case was
wrongly decided.
The Respondent is thus seeking to relitigate here the correctness of the actions of
the Board and Regional Director in dismissing its objections to the election and in
subsequently certifying the Union. This it may not do. In the absence of newly dis-
covered or previously unavailable evidence, issues which were or could have been
raised in a related representation case may not be relitigated in an unfair labor prac-
tice proceeding.4 There is no contention by the Respondent that it would seek to
3 The Respondent filed no request with the Board to review the Regional Director's find-
ing as to the appropriate unit. Under Section 102 67(f) of the Board's Rules, failure to
request review precludes relitigation in any related subsequent unfair labor practice proceed-
ing of any issue which was or could have been raised in the representation proceeding
4 Pittsburgh Plate Glass Co v. N L R B , 313 U.S. 146, united States Rubber Company,
155 NLRB 1298; Producers Inc., 133 NLRB 701, 704 As the Board said in the Producers
case:
It is the policy of the Board not to allow a party to relitigate in a Complaint proceed-
ing such as this one the legal effect of matters which the party has already litigated
and the Board has decided in a prior representation proceeding
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adduce such evidence at a' hearing before a Trial -Examiner. The Respondent may
raise its contentions as to-the invalidity of the certification before. the Board and the
Courts. However at the present stage of the proceedings the dispositions by the
Board and the Regional Director constitute the law of the case and are binding on
the Trial Examiner.
The Respondent further contends that it has not.refused to bargain because it did
not receive a specific request to bargain from, the Union 'and therefore may stand on
its privilege to remain silent until such time as the Union issues a clear and unam-
biguous statement specifically requesting bargaining.
In a union letter, dated April 18, 1966, sent by Joseph Mello, secretary-treasurer
of the Union, and addressed to Sheppard Bartlett, executive vice president of
Respondent Company, the Union requested a meeting with Respondent "relative to
the negotiations [sic] of a collective-bargaining agreement." The letter continued,
"I would suggest a preliminary meeting . . . April 25 or 26 . . . for the purpose of
establishing the mechanics involved in negotiations so that our discussions may be
efficient and fruitfull." Counsel for the Respondent replied by letter to Mr. Mello
dated April 26, 1966, as follows:
As attorney for and on behalf of A. G. Pollard Company and in reference to
your letter dated April 18, 1966, please be advised that our client considers the
certification by the National Labor Relations Board unlawful and erroneous.
The Respondent now contends that the Union's letter did not contain a request to
bargain and asserts that the only request in the letter concerned a procedural con-
ference to discuss the "mechanics of negotiation'.' a subject, it says, not within the
scope of required bargaining as defined by Section 8(d) of the Act.
The Respondent's contention cannot be sustained. The mechanics involved in
negotiations may be a relevant part of collective bargaining. The Union' s request
for a preliminary meeting was in effect a request to start the bargaining process. The
fact that the Union wished to devote the first of their collective-bargaining sessions
to the establishment of the framework in which they would work does not alter the
obvious intent of the Union to begin negotiations. In any event the Respondent's
present contention appears to be an afterthought, and not the reason for its failure
to honor the Union's request. Thus the Respondent's reply to the Union's letter indi-
cates that it was rejecting the Union's request because the certification was invalid.
There is no indication therein that the Respondent considered the request itself
defective. It is found that the Union's letter of April 18, 1966, was a valid request
to bargain and that the Respondent's failure to grant that request was a refusal to
bargain.
All material issues having thus been decided, or admitted in the answer to the
complaint, there are no matters requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's motion for judgment on the pleadings is granted.
On the basis of the record before me I make the following further findings:
1. JURISDICTION
A. G. Pollard Company, is and has been at all times material herein, a Massa-
chusetts corporation with its principal office and place of business at Merrimack
Street in the city of Lowell, Massachusetts , where it is engaged in the sale and dis-
tribution of clothing , furniture, appliances , household and domestic goods, and
related products.
Annually, the Respondent, in the course and conduct of its business sells and
distributes products valued in excess of $500 ,000. During the same period of time,
Respondent received goods valued in excess of $50 ,000 transported to its place of
business in interstate commerce directly from States other than the Commonwealth
of Massachusetts.
The Respondent is and has been , at all times material herein , engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 372, Retail Clerks International Association, AFL-CIO, is and at all times
material herein has been, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
The unit described in footnote 2, supra, is appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act.
A. G. POLLARD COMPANY 1457
On December 13, 1965, a majority of employees in the above-mentioned unit, by
a secret-ballot election conducted under the supervision of the Regional Director of
the National Labor Relations Board, designated and selected the Union as their
representative for the purposes of collective bargaining with Respondent and on
April 6, 1966, the Union was certified as the exclusive bargaining representative of
the employees in the said unit, within the meaning of Section 9(a) of the Act.
On April 18, 1966, the Union, by its letter directed to the executive vice president
of Respondent, requested the Respondent to bargain. Since on or about April 26,
1966, the Respondent has failed to recognize and bargain collectively with the
Union, notwithstanding its certification and request to bargain.
By its action aforesaid the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act,
refused to bargain collectively with the Union, and engaged in unfair labor prac-
tices within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the record before me I recommend that the Respondent, A. G. Pollard Company, its
officers, agents, successors, and assigns, shall:
1 Cease and desist from:
(a) Refusing to bargain collectively with Local 372, Retail Clerks International
Association, AFL-CIO, as the exclusive bargaining representative of the employees
in the appropriate unit.
(b) In any like or related manner interfering with, restraining , or coercing
employees in the exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Bargain collectively with Local 372, Retail Clerks International Association,
AFL-CIO, as the exclusive representative of the employees in the appropriate unit
as above found, and, if an understanding is reached, embody such understanding in
a signed agreement.
(b) Post at its Lowell, Massachusetts, store, copies of the attached notice marked
"Appendix." 5 Copies of said notice to be furnished by the Regional Director for
Region 1, after being duly signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon receipt, and be maintained
by it for at least 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 cov-
ered by any other material.
(c) Notify the Regional Director, in writing, within 20 days from the date of the
receipt of this Trial Examiner's Decision , what steps the Respondent has taken to
comply herewith .6
5 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the 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."
61n the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read, "Notify the Regional Director for Region 1, in writing, within
10 days from the date of receipt of this Order , what steps the Company has taken to com-
ply 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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local 372, Retail Clerks
International Association , AFL-CIO, as the exclusive representative of the
employees in the following appropriate unit:
All full-time and regular part -time selling and nonselling employees at
our Lowell , Massachusetts , retail store, including cash auditors , commis-
264-188-67-vol. 161-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion personnel in the Ladies Ready-to-Wear Department , Cosmetic Depart-
ment employees and watchmen /maintenance employees , but excluding
part-time employees working less than 15 hours per week, leased depart-
ment employees , commission personnel in the Furniture , Rugs, Fur
Appliance , Menswear , and Interior Decorating Departments , employees
of the Old Homestead House, Bedford, Massachusetts , confidential secre-
taries, professional employees , guards, supervisory trainees , department
heads, assistant buyers, assistant buyer trainees , buyers, and all other super-
visors as defined in Section 2 ( 11) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
employees in the exercise of their rights guaranteed by Section 7 of the Act.
WE WILL bargain collectively with the aforesaid labor organization as the
exclusive representative of the employees in the appropriate unit, and, if an
understanding is reached , embody such understanding in a signed agreement.
A. G. POLLARD COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board' s Regional Office, 20th
Floor, John F. Kennedy Federal Building, Cambridge and New Sudbury Streets,
Boston, Massachusetts 02203, Telephone 223-33300.
Bartenders & Culinary Workers Union , Local No. 595, Hotel &
Restaurant Employees and Bartenders International Union,
AFL-CIO and Arne Falk , Inc. Case 20-CC-552. December 0,
1966
DECISION AND ORDER
On July 19, 1966, Trial Examiner Arthur Christopher, Jr., issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in 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 attached Trial Examiner's
Decision. Thereafter Respondent filed exceptions to the Decision and
a supporting brief, and the General Counsel filed cross-exceptions
and a 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 [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing 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 briefs, and the entire record
161 NLRB No. 129.