Clark's Frozen Custard, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1963

141 N.L.R.B. 553 (N.L.R.B. 1963)

CLARK'S FROZEN CUSTARD, INC., ETC. 553
APPENDIX C
NOTICE TO ALL MEMBERS OF AMALGAMATED LOCAL UNION 355 AND TO THE EM-
PLOYEES OF MALCOLM KONNER CHEVROLET, INC., AND KONNER CHEVROLET, INC.
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, we hereby notify our employees that:
WE WILL NOT act as or claim to be the exclusive bargaining representative of
any of the salesmen or shop employees of Malcolm Konner Chevrolet, Inc., for
the purpose of dealing with it concerning grievances , labor disputes , wages, rates
of pay, hours of employment , or other conditions of employment unless and
until we have been certified by the Board as such representative.
WE WILL NOT give any force or effect to the agreements signed with said
Local 355, by Malcolm Konner Chevrolet, Inc., on June 1, 1962, and by Konner
Chevrolet, Inc., on June 30, 1962, or to any modifications , extensions , renewals,
or supplements thereto.
WE WILL NOT cause or attempt to cause Konner Chevrolet, Inc., to discharge
or to in any way discriminate against George F. Gibson, or any other employee,
in violation of Section 8 (a) (3) of the Act.
WE WILL notify Konner Chevrolet, Inc., in writing, that we withdraw our
objections to the employment of George F. Gibson and request his reinstate-
ment to his former or to an equivalent position.
WE WILL jointly and severally with Konner Chevrolet, Inc., make whole
George F. Gibson for any loss of pay suffered as a result of the discrimination
against him , plus interest.
WE WILL NOT in any other manner restrain or coerce employees of Malcolm
Konner Chevrolet, Inc., and Konner Chevrolet, Inc., in the exercise of the
rights guaranteed to them by Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
AMALGAMATED LOCAL UNION 355,
Labor Organization.
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.
Employees may communicate directly with the Board's Regional Office, 614
National Newark Building , 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions.
Clark 's Frozen Custard, Inc.; Dutchland Dairy Stores, Inc.;
Clark 's Dairy Stores , Inc.; Tosa Avenue Dairy Store, Inc.;
Howell Avenue Dairy Store, Inc .; Lincoln Avenue Dairy Store,
Inc.; Hales Corners Dairy Store , Inc. and Retail Store Em-
ployees Union Local #444, Retail Clerks International Asso-
ciation , AFL-CIO. Case No. 13-CA-6133. March 18, 1963
DECISION AND ORDER
On January 14, 1963, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
141 NLRB No. 51.
'554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Boardhas considered the Intermedi-
ate Report, the Respondents' exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
.recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter, brought under Section 10(b) of the National Labor Relations Act, as
-amended (61 Stat. 136), herein called the Act, was heard at Chicago, Illinois, on
November 27, 1962, pursuant to due notice with all parties being represented. The
complaint, issued by a representative of the General Counsel for the National
Labor Relations Board ( herein called the General Counsel and the Board ), on Octo-
ber 26, 1962, and based upon charges filed on September 19 and served on Septem-
ber 20, 1962, alleged in substance that the captioned companies refused to bargain
with Retail Store Employees Union Local #444, Retail Clerks International Associa-
tion , AFL-CIO ( herein called the Union), in violation of Section 8(a)(5) and (1)
of the Act.
In its duly filed answer , Respondents denied the commission of any unfair labor
practices. In addition to these denials , the answer alleged certain affirmative defenses
pertaining to the Board 's disposition of the Union's petitions for certification as the
bargaining agent of Respondents ' employees . Over Respondents ' objections, a mo-
tion by the General Counsel was granted to strike substantially all of said affirmative
defenses on the grounds that they had all been raised before the Board or considered
by it in the representation proceedings and that they presented no newly discovered
evidence or matters not considered by the Board or otherwise waived by Respondents.,
A motion by way of stipulation was made after the close of the hearing to correct
the record and is hereby granted.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. RESPONDENTS ' BUSINESS
Clark's Frozen Custard , Inc., Clark's Dairy Stores , Inc., Dutchland Dairy Stores,
Inc., Tosa Avenue Dairy Store , Inc, and Howell Avenue Dairy Store, Inc., all operat-
ing stores in the city of Milwaukee , Wisconsin ; Lincoln Avenue Dairy Store, Inc.,
operating in West Allis, Wisconsin ; and Hales Corners Dairy Store , Inc., located
at Hales Corners , Wisconsin , at all times material herein have been corporations duly
organized under and existing by virtue of the laws of the State of Wisconsin. At
all times material herein each of said corporations at the locations noted have been
engaged in the business of operating one or more restaurants , delicatessens, and
stores for the retail sale and distribution of dairy products , groceries , meats, produce,
'A His - Chalmers Manufacturing Company v. N.L R B , 162 F 2d 435, 441 (C A. 7) ;
Grede Foundries , Inc, Iron Mountain Division , 83 NLRB 201, enfd . 1189 F. 2d 258
(C.A 6) ; Ken Lee, Inc., 137 NLRB 1642.
CLARK'S FROZEN CUSTARD, INC., ETC. 555
and related products. During the calendar year 1961, each of said corporations,
except the Hales Corners and the Tosa Avenue units, sold and distributed products
in the course of their business operations valued in excess of $500,000. During the
same period of time, each of said corporations without exception received goods and
supplies directly from outside the State of Wisconsin valued in excess of $10,000.
At all times material, each of said corporations have been affiliated businesses
with common offices at 4531 West Home Avenue, Milwaukee, Wisconsin, with
common officers, ownership, directors, and operators, which directors and operators
formulate and administer a common labor policy for the said corporations affecting
the employees thereof. For the purposes herein, I find that said corporations con-
stitute a single integrated enterprise and at all times material herein have been
an employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act?
II. THE LABOR ORGANIZATION
Retail Store Employees Union Local #444, Retail Clerks International Associa-
tion , 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
All employees of Clark's Frozen Custard, Inc, stores at 4515 West Forest Home
and 4344 North 27th Street, Milwaukee; Dutchland Dairy Stores, Inc., at 3905 West
National Avenue, Milwaukee; Clark's Dairy Stores, Inc., at 4925 South Packard
Avenue, Cudahy, Wisconsin, and 6420 West Silver Spring Drive, Milwaukee; Tosa
Avenue Dairy Store, Inc., at 7520 West Capitol Drive, Milwaukee; Howell Avenue
Dairy Store, Inc., at 3935 South Howell Avenue, Milwaukee; Lincoln Avenue Dairy
Store, Inc., at 6915 Lincoln Avenue, West Allis, Wisconsin; and Hales Corners Dairy
Store, Inc., at 5744 South 108th Street, Hales Corners, Wisconsin; but excluding
office employees, truckdrivers, professional employees, and supervisors as defined in
the Act, constitute, and at all times material herein have constituted, a unit appropri-
ate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
The Majority
On June 29, 1962, a majority of the employees of Respondents in the above-
appropriate unit, by a secret ballot election conducted under the supervision of the
Regional Director for the Thirteenth Region of the National Labor Relations Board,
designated and selected the Charging Party as their representative for the purposes of
collective bargaining with the Respondents, and on July 24, 1962, said Regional
Director certified the Charging Party as the exclusive collective-bargaining repre-
sentative of the employees in the said unit.
The Refusal To Bargain
On July 11, the Union wrote Respondents pointing out its selection as the bargain-
ing agent of the employees and requesting a meeting for negotiation. The Respond-
ents replied on July 16 that it would not recognize or bargain with the Union on
the grounds "that the last election 3 was not a valid election." On July 28, the
Union repeated its demand. The Company replied that it was "taking additional
steps in furtherance of our position that the results of the last election should have
been set aside and that your union has been improperly certified." On August 27,
the Union again wrote Respondents indicating that it had been informed by the
Board that Respondents' request for review of the Regional Director's decision had
been denied. In this letter, the Union again requested recognition and bargaining.
The Company replied that,
After a careful review of the matter, we wish to advise you of the fact that
the employers involved in the Second Supplemental Decision and Certification
of Representatives issued by Ross M. Madden, Regional Director of the National
2 Although finding the charged corporations to be a single enterprise, I shall refer to
them as Respondents since they are so designated In the complaint.
s There had been a prior election which the Union had lost and which had been set
aside by the Board.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board on July 24, 1962, contest the validity of the same. To
that end, we propose to have such legal review of the Decision and Certifica-
tion as is available.
Conclusions
As indicated in the Statement of the Case, supra, I granted the General Counsel's
motion to strike substantially all of Respondents' answer pertaining to their affirmative
defenses which were directed to the litigation of matters that were before the Board
when it decided the representation cases. Accordingly I permitted no evidence to
be adduced as to these matters. Respondents' arguments and brief all deal with the
propriety of my ruling and the resulting restriction on the evidence I would receive,
and addresses itself to the evidence it offered as an offer of proof.
On the evidence in this record, it is obvious that the Union at all times since
June 29, 1962, was the representative of Respondents' employees in an appropriate
unit and that Respondents refused to bargain with it in violation of Section 8 (a)( I)
and (5) of the Act. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section I, above,
have a close, intimate, and substantial relation 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 thereof.
V. THE REMEDY
It having been found that the Respondents engaged in unfair labor practices in
violation of Section 8(a)(5) and ( 1) of the Act, it will be recommended that the
Respondents cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Retail Store Employees Union Local #444, Retail Clerks International Associa-
tion, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
2. All of the Respondents' employees excluding office employees, truckdrivers,
professional employees, and supervisors as defined in the Act have constituted and
now constitutes a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. On June 29, 1962, and at all times thereafter Retail Store Employees Union
Local #444, Retail Clerks International Association, AFL-CIO, has been the
exclusive representative of all Respondents' employees in the above unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
4. By refusing on July 16. 1962, and at all times thereafter, to bargain collectively
with the above Union as the exclusive representative of all its employees in the
aforesaid appropriate unit, Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 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 entire record in the case, I recommend that the Respondents, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Store Employees Union Local
#444, Retail Clerks International Association, AFL-CIO, as the exclusive bargain-
ing representative of all their employees with the exception of office employees,
truckdrivers, professional employees, and supervisors as defined in the Act.
(b) In any manner interfering with the efforts of the above-named Union to
bargain collectively with the above-named Companies on behalf of the employees
in the above-described unit
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
CLARK'S FROZEN CUSTARD, INC., ETC. 557
(a) Upon request, bargain collectively with the above -named Union as the ex-
clusive representative of all the employees in the appropriate unit , and embody in a
signed agreement any understanding reached.
(b) Post at its various stores in Milwaukee , West Allis, and Hales Corners,
Wisconsin , copies of the attached notice marked "Appendix ." 4 Copies of such
notice, to be furnished by the Regional Director for the Thirteenth Region, shall,
after being signed by an authorized representative of Respondents , be posted im-
mediately 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 Respondents to insure
that said notices are not altered , defaced , or covered by any other material.
(c) Notify said Regional Director , in writing , within 20 days from the date of the
receipt of this Intermediate Report and Recommended Order, what steps Respondents
have taken to comply herewith .5
' In the event that this Recommended Order be 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 be enforced
by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
I In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondents have 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, we hereby notify our employees that:
WE WILL bargain collectively , upon request , with Retail Store Employees
Union Local #444, Retail Clerks International Association, AFL-CIO, as the
exclusive bargaining representative of all our employees in the appropriate unit
described below with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment , and, if an agreement is reached,
embody such agreement in a signed contract . The appropriate unit is:
All employees except office employees , truckdrivers , professional em-
ployees, and supervisors as defined in the National Labor Relations Act.
WE WILL NOT in any manner interfere with the efforts of Retail Store Em-
ployees Union Local #444, Retail Clerks International Association, AFL-CIO,
to bargain collectively as the exclusive representative of the employees in the
bargaining unit described above.
CLARK'S FROZEN CUSTARD, INC.,
DUTCHLAND DAIRY STORES, INC.,
CLARK'S DAIRY STORES, INC.
TOSA AVENUE DAIRY STORE, INC.,
HOWELL AVENUE DAIRY STORE, INC.,
LINCOLN AVENUE DAIRY STORE, INC.,
HALES CORNERS DAIRY STORE, INC.,
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.
Employees may communicate directly with the Board 's Regional Office, 176 West
Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660 , if they have any
questions concerning this notice or compliance with its provisions.