Local 340, New York New Jersey Regional Joint Board,
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
Local 340, New York New Jersey Regional Joint Board and Brooks Brothers, a Division of Retail Brand Alliance, Inc. Case 02–CB–069460
April 13, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
The General Counsel seeks summary judgment in this case on the grounds that there are no genuine issues of material fact as to the allegations of the complaint, and requests that the National Labor Relations Board find, as a matter of law, that the Respondent, Local 340, New York New Jersey Regional Joint Board (the Union or the Respondent), has violated Section 8(b)(1)(A), (2), and (3) by continuing to seek judicial enforcement of an arbitration award that conflicts with the Board’s unit clarification determination.1 The award requires the Employer, Brooks Brothers, to recognize the Union and apply the collective-bargaining agreement, which includes a unionsecurity clause, to employees at the Employer’s 1180 Madison Avenue store, despite the Board’s finding in the unit clarification proceeding that those employees were not an accretion to the unit represented by the Union.2
The General Counsel issued the complaint on March 31, 2016, and an amendment to the complaint on May 4, 2016. The Union filed an answer admitting the pertinent facts as set forth below, but denying that its conduct violated the Act and asserting affirmative defenses.
On September 15, 2016, the General Counsel filed with the Board a Petition for Summary Judgment and Issuance of Decision and Order, with exhibits, and a memorandum in support of the petition. The General Counsel contends that, in light of the factual admissions contained in the Union’s answer, the pleadings raise no genuine issues of fact requiring an evidentiary hearing. On September 27, 2016, the Union filed an opposition to the General Counsel’s petition. On September
1 Brooks Brothers, Case 02–UC–062745 (September 21, 2015) (not included in bound volumes).
2 Specifically, the complaint alleges that by pursuing enforcement of the arbitration award, the Union unlawfully insisted on a change in the scope of the unit, thereby refusing to bargain in good faith with the Employer; requested that the Employer apply the terms of the collective-bargaining agreement, including the union-security clause, to nonunit employees, thereby attempting to cause the Employer to discriminate against the 1180 Madison employees in violation of Sec. 8(a)(3) of the Act and to encourage its employees to join the Union; and restrained and coerced employees in the exercise of their Sec. 7 rights.
29, 2016, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel’s petition should not be granted. Thereafter, on November 3, 2016, the Union filed an Opposition to the Petition for Summary Judgment and Request for Reconsideration of the Board’s Denial of Respondent’s Request for Review that “supplements and revises” the Union’s September 27, 2016 opposition. The Union also filed a supporting memorandum of law. On November 17, 2016, the General Counsel filed a limited response to the Union’s opposition.
Ruling on Petition for Summary Judgment
We find that there are no genuine issues of material fact requiring a hearing. We agree with the General Counsel that the complaint allegations denied by the Union raise no issues of fact apart from those already decided by the Regional Director and affirmed by the Board in the underlying unit clarification (UC) case, and that all other complaint allegations were admitted by the Union. We also agree with the General Counsel that none of the Union’s affirmative defenses raises any material issue of fact requiring a hearing. For the reasons set forth below, we find that the Union has violated the Act as alleged. Accordingly, we grant the General Counsel’s Petition for Summary Judgment.
On the entire record, the Board makes the following FINDINGS OF FACT
At all material times, Brooks Brothers, the Employer, has been a Delaware corporation with offices and a principal place of business at 346 Madison Avenue, New York, New York, and has been engaged in the retail sale of clothing at stores throughout the United States. Annually, the Employer, in conducting its business operations, derives gross revenues in excess of $500,000 and has sold and shipped from its 346 Madison Avenue facility products, goods, and materials valued in excess of $5000 directly to points outside the State of New York. We find, on the basis of the foregoing, that at all material times the Employer has been an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The Union admits, and we find, that at all material times, the Union has been a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the Employer and the Union have maintained a collective-bargaining agreement providing for recognition of the Union as the exclusive
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agent for unit employees at the Employer’s retail stores operated under the name “Brooks Brothers” in New York City and surrounding counties.3 The recognition clause of the collective-bargaining agreement also contains the following procedures for new retail stores:
If the Employer opens any new retail store(s) in the above-designated geographic area, the following provisions of this Agreement shall be applicable to such store(s): Articles I, II, III, IV, XI, XIII, XV, XVII, XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, and
XXVI. All other terms and conditions applicable to such store(s) shall be subject to negotiations, on notice to...
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