Retail Store Employees Un., Loc. 428, 1046 (1973)

Retail Store Employees Union Local 428 , Retail Clerks International Association, AFL-CIO and Levitz Furniture Company of Santa Clara, Inc. Cases 20CB-2653 and 20-RC-10447

July 11, 1973 DECISION AND ORDER

BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 13, 1973, Administrative Law Judge Irving Rogosin issued the attached Decision wherein he recommended that the complaint be dismissed in its entirety and that certain objections to the election be overruled. Thereafter, the General Counsel and the Employer filed exceptions and supporting briefs, and Respondent Union filed an answering 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 authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety, and that the objections to the election be, and they hereby are, overruled.

' We hereby correct the Administrative Law Judge 's inadvertent reference to the Board agent as Edward Miller rather than Edward S. Kaplan.

2 In adopting the conclusion of the Administrative Law Judge that Respondent Union did not violate Sec. 8(b)(1)(A) of the Act, we do not rely on the Employer's attitude toward the Union. See Retail Store Employees Local 1001 (Levitz Furniture Company of Washington, Inc), 203 NLRB No 75 DECISION

STATEMENT OF THE CASE

IRVING RoGosiN, Administrative Law Judge: The complaint, together with an order severing objections to the conduct of the election from the challenges in Case 20RC-10447, and consolidating for hearing the objections to the election with the complaint in Case 20-CB-2653, was issued on September 28, 1972 . The complaint alleges that Respondent Union, by named agents and others unknown, engaged in unfair labor practices within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act, by entering the premises of Levitz, the Charging Party, without permission; going to areas where employees were at work; refusing to leave when requested by Levitz' agents to do so; and physically intimidating Levitz' agents by following them around the premises; thereby interfering with the performance of the work being done in said area.' Respondent's answer, dated October 6, 1972, admits the allegations concerning the identity of its president and business representatives but denies that its president, identified by it as Claude L. Fernandez, participated personally in any of the acts alleged in the complaint, and further denies generally and specifically the substantive allegations of the complaint.

Hearing was held on February 6 and 7, 1973, at San Francisco, California. All parties, including the Charging Party-Employer, were represented by counsel, and were afforded full opportunity to be heard, to examine and crossexamine witnesses, to introduce oral and documentary evidence relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. At the close of the General Counsel' s case,

Respondent rested, without offering any evidence, and moved to dismiss the complaint on the ground that the complaint failed to allege facts constituting a violation of Section 8(b)(1)(A) of the Act, and that the evidence adduced failed to support such an allegation. Ruling on the motion having been reserved, the motion is disposed of by the findings and conclusions hereinafter made. Pursuant to permission granted, briefs were filed by all parties on March 2, 1973.2 No proposed findings of fact or conclusions of law have been filed by any of the parties.

Upon the entire record in the case, and based upon the appearance and demeanor of the witnesses, and the briefs of the parties, which have been carefully considered, I make the following:3 i Designations herein are as follows. The General Counsel, unless otherwise noted or required by the context, his representative at the hearing;

Levitz Furniture Company of Santa Clara, Inc, the Company, the Employer or the Charging Party, Retail Store Employees Union Local 428, Retail Clerks International Association, Respondent Union, Respondent or the Petitioner , the National Labor Relations Act, as amended (61 Stat 136, 73

Stat. 519, 29 U.S.C. Sec 151, et seq), the Act; the National Labor Relations Board, the Board. The charge was filed and served on April 28, 1972. The caption on the transcript and exhibits of the official report of proceedings has been erroneously transposed and is hereby corrected to conform to the caption in this decision.ca?tion General Counsel's brief, as well as his participation in the hearing, was limited to the unfair labor practices alleged in the complaint. The General Counsel takes no position regarding the objections to conduct affecting the election in the representation proceeding (Case 20-RC-10447).

3 Official notice has been taken of the judgment of the United States Court of Appeals for the Ninth Circuit, in N L R.B. v Levitz Furniture Corporation, entered by stipulation of the parties, on January 30, 1973, appended to Respondent-Petitioner's brief. The judgment has been considered solely as background for the events related herein. It may be noted that unfair labor practice proceedings had been filed against the Company in both Regions 19 and 20, involving, in part, employees at its Santa Clara store, and that the judgment required Levitz, among other things, to post appropriate notices 'at all of its offices and store branches west' as well as 'east of the Mississippi River.' The unopposed motion to correct the transcript of the proceedings, filed by the Charging Party-Employer on March 9, 1973, is hereby granted, and the record is hereby corrected accordingly . A copy of the corrections is annexed to this decision.

204 NLRB No. 146

RETAIL STORE EMPLOYEES UN., LOC. 428 1047 FINDINGS OF FACT

I THE BUSINESS OF THE COMPANY

The complaint alleges, Respondent's answer, by its failure to deny, admits, and it is hereby found that, at all times material herein, Levitz Furniture Company of Santa Clara,

Inc., Levitz or the Company herein, is a California corporation, with a place of business in Santa Clara, California, engaged in the retail sale of furniture.

During the year preceding issuance of the complaint, in the conduct of its business operations, Levitz received gross revenues valued in excess of $500,000, and purchased and received goods and materials valued in excess of $50,000 directly from sources located outside the State of California.

The complaint further alleges, Respondent, by its failure to deny, admits, and it is hereby found that, at all times material herein, Levitz has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act.

II THE LABOR ORGANIZATION INVOLVED

Retail Store Employees Union Local 428, Retail Clerks International Association , AFL-CIO, Respondent Union or the Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act.

III THE ALLEGED UNFAIR LABOR PRACTICES

1. The Issues Whether the complaint alleges, and the evidence supports a finding, that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act by specified conduct on the part of its agents.

   Sundays, when the hours are from 11 a.m. to 7 p.m.

   During the period with which we are concerned, Levitz has maintained a rule prohibiting solicitation or distribution of literature on company premises. It is not alleged or contended that the rule is invalid or that it has been discriminatorily enforced. In fact, the evidence reveals that the rule has been enforced against such benevolent agencies as the United Fund and the Girl Scouts. Since about a month-and-ahalf before the representation election, presently mentioned, held February 25, 1972, to and including the date of the hearing in this proceeding, Respondent has maintained on the official bulletin board in the employee lunchroom, rules regarding solicitation and distribution of literature, which provide, as to persons other than employees, as follows:

   2. Persons not employed by Levitz are not permitted to solicit or distribute literature or other written material of any kind on Company property.4

   Late in 1970 or early 1971, a representation election was held among Levitz' employees, in which Local 428, Respondent herein, was the petitioner. The record does not disclose the results of that election. On January 21, 1972, Local 428 filed a representation petition, in a unit consisting of all selling and nonselling employees at the employer's establishment, with the usual statutory exemptions, at its location at 2121 Laurelwood Road, Santa Clara, California. Pursuant to a stipulation for certification upon consent election, an election was scheduled, and held, at the Employer's premises, on February 25, 1972, between 3 p.m. and 6 p.m.

   According to the official tally of ballots, of approximately 121 eligible voters, 54 votes were cast for the Petitioner, 48 votes against, and 17 ballots, a sufficient number to affect the results of the election, being challenged, with 2 void ballots. On March 3, the Employer filed timely objections to the election. On April 13, 1972, the Regional Director for Region 20, issued his report on challenged ballots and objections, and notice of hearing on challenged ballots .5

2. The Background At its Santa Clara, California, facility,...