Silverman's Men's Wear, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1388 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silverman's Men's Wear, Inc. and General Ware-
housemen and Employees' Union Local 636 a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 6-CA-13326
August 4, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on April 3, 1980, by General
Warehousemen and Employees' Union Local 636,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, and duly served on
Silverman's Men's Wear, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 6, issued a complaint and notice of
hearing on April 23, 1980, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 February 20,
1980, following a Board election in Case 6-RC-
8448 the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about March 20, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to recognize and to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On May 1,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On May 19, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on May 30, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Official notice is taken of the record in the representation proceed-
ing, Case 6-RC-8448, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8. as amended. See
LTV Electrosystems Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v Penello. 269 F Supp. 573
(D.C.Va. 1967); Follen Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
250 NLRB No. 181
Judgment should not be granted. Respondent
thereafter filed a response to the General Counsel's
motion.
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 Respondent ad-
mitted, inter alia, that the unit was appropriate, that
by letter dated February 27, 1980, the Union re-
quested Respondent to bargain collectively for the
unit employees with respect rates of pay, wages,
hours, and other terms and conditions of employ-
ment. Respondent also admitted that it has failed
and refused to recognize and bargain with the
Union as the exclusive collective-bargaining repre-
sentative. Respondent also contends that the Union
was improperly certified by the Board because sub-
stantial and material factual issues exist which re-
quire a hearing. Respondent denies that the Union
is the exclusive representative of the unit employ-
ees, and that it has violated Section 8(a)(5) and (1)
of the Act.
The General Counsel contends, inter alia, that
Respondent's answer does not assert any reason
why the certification was improper, and does not
allege that there is any newly discovered or previ-
ously unavailable evidence to support Respondent's
assertion that the certification was improper, nor
does the answer allege the existence of any special
circumstances justifying a reconsideration of the
issues raised in the representation proceeding
which preceded certification. We agree with the
General Counsel.
Review of the record herein, including the
record in Case 6-RC-8448, reveals that on March
30, 1979, the parties entered into a Stipulation for
Certification Upon Consent Election in a unit of all
full-time and regular part-time distribution center
employees at Respondent's Warrendale, Pennsylva-
nia, facility, excluding office clerical employees,
guards, professional employees and supervisors.
Subsequently, on May 31, 1979, in a secret-ballot
election a majority of the unit employees designat-
ed and selected the Union as their collective-bar-
gaining representative.
On June 5, 1979, Respondent filed timely objec-
tions to the election. Subsequently thereto, the Re-
gional Director conducted an investigation of these
objections. In a letter dated July 23, 1979, Re-
spondent requested an evidentiary hearing with ref-
erence to said objections. In a Report on Objec-
1 388
SIl.VERMAN'S MEN WEAR. INC
tions dated November 30, 1979, the Regional Di-
rector ruled that Respondent's objections failed to
raise any substantial or material issue with respect
to the conduct of the election. The Regional Direc-
tor recommended that the objections be overruled
in its entirety, and that the Board issue a Certifica-
tion of Representative to the Petitioner. In addi-
tion, the Regional Director denied Respondent's
request for a hearing.
On December 26, 1979, Respondent filed excep-
tions to the Regional Director's Report on Objec-
tions and a brief in support thereof. On February
20, 1980, the Board issued a Decision and Certifica-
tion of Representative, 2 finding that the exceptions
did not raise any material issues of fact or law
which would warrant reversal of the Regional Di-
rector or the direction of a hearing in this proceed-
ing and certified the Union as the collective-bar-
gaining representative for the above-described unit
of employees. On or about February 27, 1980, the
Union, by letter, requested Respondent to bargain
with it concerning rates of pay, wages, hours, and
other terms and conditions of employment. How-
ever, since on or about March 20, 1980, and con-
tinuing to date, Respondent has refused and contin-
ues to refuse to bargain with the Union. It thus ap-
pears that Respondent is attempting in this pro-
ceeding to relitigate issues fully litigated and finally
determined in the representation proceeding.
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.3
All issues raised by Respondent in this proceed-
ing were or could have been litigated 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 would 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:
I Not reported in volumes of Board Decisions.
3 See Pittsburgh Plate Glass Co. v NL.R.B., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.6
9 (c)
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a Penn-
sylvania corporation with an office and place of
business located in Warrendale, Pennsylvania, has
engaged in the operation of retail stores throughout
the United States. During the 12-month period
ending March 31, 1980, Respondent, in the course
and conduct of its operations, derived gross rev-
enues in excess of $500,000 from its retail oper-
ations. During the period of time described above,
Respondent, in the course and conduct of its oper-
ations, purchased and received at its Warrendale,
Pennsylvania, facility, products, goods, and materi-
als valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania.
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.
II. THE LABOR ORGANIZATION INVOLVED
General Warehousemen and Employees' Union
Local 636, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
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 distribution
center employees, including the distribution
department, supply department, merchandise
handling department, shipping department, re-
ceiving department, construction department,
plant clerical employees, and group leaders
employed by the Employer at its Warrendale,
Pennsylvania, facility; excluding all other em-
ployees, office clerical employees and guards,
professional employees and supervisors as de-
fined in the Act.
2. The certification
On May 31, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
13S8
DECISIONS OF NATIONAL, L.ABOR RELATIONS BOARD
Director for Region 6, designated the Union as
their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on February 20, 1980,
and the Union continues to be such exclusive rep-
resentative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about February 27, 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 March 20, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
March 20, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, 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. Silverman's Men's Wear, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. General Warehousemen and Employees'
Union Local 636, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time distribution
center employees, including the distribution depart-
ment, supply department, merchandise handling de-
partment, shipping department, receiving depart-
ment, construction department, plant clerical em-
ployees, and group leaders employed by the Em-
ployer at its Warrendale, Pennsylvania, facility; ex-
cluding all other employees, office clerical employ-
ees and guards, professional employees and super-
visors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since February 20, 1980, 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 March 20, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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.
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SILVERMAN'S MEN WEAR, INC
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,
Silverman's Men's Wear, Inc., Warrendale, Penn-
sylvania, 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 General Warehou-
semen and Employees' Union Local 636 a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time distribution
center employees, including the distribution
department, supply department, merchandise
handling department, shipping department, re-
ceiving department, construction department,
plant clerical employees, and group leaders
employed by the Employer at its Warrendale,
Pennsylvania, facility; excluding all other em-
ployees, office clerical employees and guards,
professional employees and supervisors as de-
fined 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.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the 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 Warrendale, Pennsylvania, facility
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly
I In 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 of 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."
signed by Respondent's representative, shall be
posted by Respondent 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. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been 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
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with General Warehousemen and Employees'
Union Local 636 a/w International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL 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 distribu-
tion center employees including the distribu-
tion department, supply department, mer-
chandise handling department, shipping de-
partment, receiving department, construc-
tion department, plant clerical employees,
and group leaders employed at our Warren-
dale, Pennsylvania, facility; excluding all
other employees, office clerical employees
and guards, professional employees and su-
pervisors as defined in the Act.
SILVERMAN'S MEN'S WEAR, INC.
1391