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National Labor Relations Board v. Whitney Stores Inc.


March 6, 1972


Before HASTINGS, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges.


The National Labor Relations Board has petitioned for enforcement of its order issued against respondent Whitney Stores, Inc. (Employer) on September 10, 1970, and reported at 185 NLRB No. 82. The Employer seeks denial of the enforcement.

The Board found that the Employer violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151, et seq ., by refusing to bargain with the union*fn1 which had been certified following a Board-conducted election as bargaining agent of the Employer's regular full-time and regular part-time selling and non-selling employees at its retail store at 4047 West Madison Street, Chicago, Illinois. The Board rejected the Employer's contentions that the bargaining unit was inappropriate and that its objections to the election were improperly overruled. The Board's order requires the Employer to cease and desist from the unfair labor practices found, to bargain with the union request, and to post appropriate notices. The Employer renews its rejected contentions here.

The Employer, a New York corporation, retails women's apparel through a chain of approximately 70 stores throughout the United States. Ten of these stores are located in the Chicago metropolitan area, five of which, including the West Madison Street store in question, are operated under the name Whitney Stores. Seven permanently assigned employees work at the West Madison Street store under that store's own manager. This store is separated from the nine other Chicago stores by distances of at least four miles. Operation of the entire chain is directed and controlled by the Employer's central office in New York City. There is regional area supervision over 40 stores including those in Chicago. Local store managers exercise substantial day-to-day authority over their employees.

Following a pre-election hearing, the Regional Director issued his decision and direction of election. There was no history of bargaining concerning employees in the other Chicago area stores and no labor organization was presently seeking to represent any employees in other stores. The Board subsequently denied the Employer's request for review of the unit determination. The Regional Director conducted an election in the unit found appropriate, the seven employees in West Madison Street store. Four votes were cast for, and three against, the union. The Employer filed timely objections to the election. The Regional Director conducted an administrative investigation, affording the parties a full opportunity to submit evidence. He subsequently issued a supplemental decision in which he overruled the Employer's objections and certified the union. The Employer did not seek Board review of the Regional Director's supplemental decision. Subsequently, the Employer rejected the union's request to bargain. The unfair labor practice charge was then filed; the complaint issued and was answered, and finally the trial examiner granted the motion of the General Counsel for summary judgment on the pleadings, concluding that there were "no unresolved matters requiring a hearing."

In this matter, we have considered the record, the briefs of the parties and heard oral argument. It is our considered judgment that the decision and order of the Board, adopting the findings, conclusions and recommendations of the trial examiner, is proper and correct, all as reported at 185 NLRB No. 82. We adopt this as our authority for the enforcement of the Board's order under consideration.

It is, Therefore, Ordered and Decreed that the order issued by the Board against respondent, Whitney Stores, Inc., on September 10, 1970, be enforced.

Enforcement Ordered.

STEVENS, C. J., dissenting: Although the Regional Director has provided us with an impartial and accurate summary of the relevant facts, in my opinion neither he nor the Board has articulated an adequate basis for distinguishing National Labor Relations Board v. Frisch's Big Boy Ill-Mar, Inc ., 356 F.2d 895 (7th Cir. 1966). As the Board's brief points out, there are certain factual differences between this case and Frisch , but they impress me as trivial when compared with the stark fact that the union's successful organizing efforts have been limited to four of the seven employees in only one of the ten Chicago stores in an integrated retail operation. In short, I am persuaded that the Board gave controlling importance to "the extent to which the employees have organized," contrary to the mandate of § 9(c)(5), 29 U.S.C. § 159(c)(5), and therefore that this is one of the rare cases in which the Board exceeded its broad discretion in the area of unit determinations.

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