Big Y Foods, Inc.

BIG Y FOO)DS, INC 869 Big Y Foods, Inc. and Amalgamated Meat Cutters, Food Store and Allied Workers of North Amer- ica, Local Union 371, a/w United Food and Commercial Workers Union, AFL-CIO. Case 1-CA-17249 August 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge filed on March 10, 1980, by Amalgamated Meat Cutters, Food Store and Allied Workers of North America, Local Union 371, a/w United Food and Commercial Workers Union, AFL-CIO, herein called the Union, and duly served on Big Y Foods, Inc., herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on March 26, 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 January 2, 1980, following a Board election in Case -RC- 14664, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about January 18, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, 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 April 7, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On April 28, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 1, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- i Official notice is taken of the record in the representation proceed- ing, Case I RC 14664, as the term "record" is defined in Secs. 10268 and 102 69(g) of the Board's Rules and Regulations, Series 8. as amended See LTV Electrosctemis. Inc.. 166 NLRB 938 (1967). enfd 388 F 2d 683 (4th Cir. 19h68) Golden A4go Bevirage Co, 167 NLRB 151 (1967), enfd 415 F2d 26 (5th Cir 1969).: rt-rvpc Co. Penello, 269 F Supp 573 (D.CVa 1967)1: Folltt Corp.. 164 NLRH 378 (1967). enfd. 397 F.2d 91 (7th Cir 1968): Sec 9(d) of the NLRA. as amended 251 NLRB No. 123 mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. 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 denies that it has engaged in any activity or con- duct in violation of the Act, and affirmatively as- serts, inter alia, that the Board's purported unit de- cision and subsequent Certification of Representa- tive are invalid and of no legal force and effect. In its response to the Notice To Show Cause, Re- spondent asserts that the General Counsel's Motion for Summary Judgment should be denied and the case remanded for hearing before an administrative law judge because substantial issues of material fact exist which have not been previously litigated, and because there exists a new issue that could not have been previously raised. In the alternative, Re- spondent asserts that summary judgment should be granted in its favor. A review of the entire record herein, including the record in Case 1-RC-14664, reveals that on August 16, 1971, Retail Store Employees Union, Local 1459, Retail Clerks International Association (hereinafter called the Retail Clerks), filed a peti- tion in Case -RC-11708 seeking to represent cer- tain of Respondent's employees. Subsequently, on August 16, 1976, Local 33 (amended later to Local 371, reflecting the merger between Meat Cutters Union Locals 371 and 33), Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO (hereinafter called the Meat Cutters or the Union), 2 filed a petition in Case -RC-14664 seeking to represent certain employees of Respond- ent. In brief, the Retail Clerks sought to represent an overall unit of grocery and meat department employees at Respondent's unrepresented stores, whereas the Meat Cutters sought to represent a unit limited to Respondent's meat department em- ployees at its unrepresented stores. On September 22, 1976, the Regional Director for Region I issued an order consolidating cases and notice of repre- sentation hearing, thereby consolidating Case 1- RC-11708 with Case -RC-14664. On February 9, 1977, subsequent to the hearing, the Regional Di- Subsequently, on June 7, 179. Amalgarnated Meatcutters and Butch- er Workmen of North America merged ilth Retail Clerks International Union; and Local 371 became affiliated ith Uniled Food and Commer- cial Workers Union, AFI.CI() 131(i Y FOODS INC 869 87() I):FCISI()NS ()F NATI()NAI I.ABO()R R A'()NS BI)ARI) rector transferred the above-consolidated cases to the Board. On September 29, 1978, the Board issued its Decision and Direction of Elections in the consolidated cases3 finding that, although the meat department employees (Unit A) may consti- tute an appropriate unit, a storewide unit (Unit B), including the meat department employees, would also be appropriate. Accordingly, the Board found it unnecessary to make a final unit determination at the time, and directed that employees in Unit A should vote whether they desired to be represented by the Meat Cutters, the Retail Clerks, or no union; and employees in Unit B were to vote whether or not they desired to be represented by the Retail Clerks. Thereafter, on November 7, 1978, the Retail Clerks filed with the Board a motion to amend the Direction of Elections in which it requested that its name be withdrawn from the ballot in Unit A and that separate elec- tions be conducted in the two units. On November 13, 1978, Respondent filed an objection to that motion to preserve its position that only a store- wide unit was appropriate. On December 29, 1978, the Board issued an Order and Amended Direction of Elections4 granting the motion of the Retail Clerks to withdraw from the ballot. On January 23, 1979, the Retail Clerks requested that its petition in Case -RC-11708 be entirely withdrawn. On Feb- ruary 1, 1979, the Regional Director for Region 1 issued an order severing cases and permitting with- drawal of the Retail Clerks petition with prejudice, thus eliminating the election in Unit B. Pursuant to the Board's Order, the election in Unit A was con- ducted on January 26, 1979, resulting in a vote of 34 for, and 30 against, the Meat Cutters, with 2 challenged ballots. Thereafter, Respondent filed timely objections to conduct affecting the results of the election. On March 29, 1979, the Acting Re- gional Director for Region I issued a Decision and Certification of Representative overruling Re- spondent's objections in their entirety and certify- ing the Meat Cutters as the collective-bargaining representative of the employees. On April 10, 1979, Respondent filed a motion to produce the entire record, and, in the alternative, requested that an evidentiary hearing be held. On April 13, 1979, the Acting Regional Director for Region I denied Re- spondent's motions. On April 24, 1979, Respondent filed a request for review of the Acting Regional Director's Decision and Certification of Repre- sentative. On June 13, 1979, the Board granted Re- spondent's request with respect to Objection 1, denied Respondent's request in all other respects, and remanded the case to the Region, directing ' 238 NLRB 55 239 NL.RI} 1122 that a hearing be held for the purpose of receiving evidence to resolve the issues raised by Objection 1. In Objection , Respondent contended that the Union and/or its agents threatened employees eligi- ble to vote in the election with physical violence if they did not support the Union. thereby creating an atmosphere of fear and coercion which rendered a free election impossible. On August 24, 1979, the Hearing Officer issued a Report on Objections and recommended that Respondent's Objection 1 be overruled in its entirety and that a certification of representative be issued. On September 13, 1979, Respondent filed timely exceptions to the Hearing Officer's Report on Objections and Recommenda- tions. On January 2, 1980, in an unpublished deci- sion, the Board found no merit to Respondent's ex- ceptions and issued its Decision and Certification of Representative certifying Amalgamated Meat- cutters, Food Store and Allied Workers of North America, Local 371, a/w United Food and Com- mercial Workers Union, AFL-CIO, as collective- bargaining representative. 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.5 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,6 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 5 See Pirrtsburgh Plate Glai C(o. I..R.B. 313 US 146, h12 (1941); Rules nd Regulations of the Board Sees 1012.67f and 102 h9(c l its response to he General Counsel's Motion fr Summary Judg- ment. Respondent asserts that sumnlarx judgment fails because of the ex- istelice of a ties issue that could not ha'se been previousl raised Re- spondent kmtlnds that ihe Board did rot fulfill its statutory dult Ito make a it i (ccrTnlllltion in its )ecision and Direction of lections, re- ported at 2 8 NlRB 855, herein the Board stated "[W]e make nlo fiial unit deternilnaitl al t tis time, hut e shall first ascertain the desires itf the employees as expressed ill the elections directed below '" We find no merit in Responldelt 's cntetion The Board fund that either Unit A or Unit B was an appropriate unit, and the affirmative duty placed oit the Board by Sec. 9(b) of the Act was not iolated by allowing the employ- ees to express their desires i the elections As set forth previously. subse- quent to the Board's Decision and Direction of Elections. reported at 238 NLRB 855, the Board granted the Retail Clerks' request to ilthdraw front the ballot in Unit A, aid the Regional Director for Region I issued an order severing cases and permitting ithdrawal of the Retail Clerks' petition with prejudice. thus effectively eliminating the election in Unit B The Meat Cutters on the electioln it Uit A. and suhsequently the Board certified the Meal Cutters as he crllecitie-hargairiung rpresenita- tiLe of a appropriate unit f Respoindent's emplo)ces 13IG Y FO:(ODS, INC 871 practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Massachusetts corporation, is en- gaged in the retail sale and distribution of meats, produce, groceries, and related products. Respond- ent, in the course and conduct of its business oper- ations, annually receives at its Massachusetts loca- tions goods and supplies valued in excess of $50,000 directly from points located outside the Commonwealth of Massachusetts. 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 Amalgamated Meat Cutters, Food Store and Allied Workers of North America, Local Union 371, a/w United Food and Commercial Workers Union, AFL-CIO, 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 meat department employees, including head meatcutters, meatcutters, apprentice meatcutters, meat clerks, and meatwrappers at Respondent's II unrepresented stores located in the following cities in the Commonwealth of Massachusetts: Fairview, Chicopee, North- ampton, Holyoke, Westfield, Agawam, Long- meadow, Springfield (2), Ludlow, and Palmer; but excluding all other employees, store man- agers, front-end department managers, meat department managers, office clericals, profes- sional employees, guards, and supervisors as defined in the Act. 2. The certification On January 26, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 1, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on January 2, 1980, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Responden's Refusal Commencing on or about January 8, 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 January 18, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 18, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices 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- 1316 Y IOODS, INC XI 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Big Y Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters, Food Store and Allied Workers of North America, Local Union 371, a/w United Food and Commercial Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All meat department employees, including head meatcutters, meatcutters, apprentice meatcut- ters, meat clerks, and meatwrappers at Respond- ent's 11 unrepresented stores located in the follow- ing cities in the Commonwealth of Massachusetts: Fairview, Chicopee, Northampton, Holyoke, West- field, Agawam, Longmeadow, Springfield (2), Ludlow, and Palmer; but excluding all other em- ployees, store managers, front-end department man- agers, meat department managers, office clericals, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 2, 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 January 18, 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)(1) of the Act. 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, Big Y Foods, Inc., 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 Amalgamated Meat Cutters, Food Store and Allied Workers of North America, Local Union 371, a/w United Food and Commercial Workers Union, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All meat department employees, including head meatcutters, meatcutters, apprentice meatcutters, meat clerks, and meatwrappers at Respondent's 11 unrepresented stores located in the following cities in the Commonwealth of Massachusetts: Fairview, Chicopee, North- ampton, Holyoke, Westfield, Agawam, Long- meadow, Springfield (2), Ludlow, and Palmer; but excluding all other employees, store man- agers, front-end department managers, meat department managers, office clericals, profes- sional employees, guards, and supervisors as defined 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 facilities located in the following cities in the Commonwealth of Massachusetts: Fair- view, Chicopee, Northampton, Holyoke, Westfield, Agawam, Longmeadow, Springfield (2) Ludlow, and Palmer, copies of the attached notice marked "Appendix." 7 Copies of said notice, I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the ords in the notice reading "Posted by Continued BIG Y FOODS. INC. 873 on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 I.abor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI.ATIONS 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 Amalgamated Meat Cutters, Food Store and Allied Workers of North America, Local Union 371, a/w United Food and Commercial Workers Union, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described below. WF 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 WL., 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 meat department employees, including head meatcutters, meatcutters, apprentice meatcutters, meat clerks, and meatwrappers at our 11 unrepresented stores located in the following cities in the Commonwealth of Massachusetts: Fairview, Chicopee, North- ampton, Holyoke, Westfield, Agawam, Longmeadow, Springfield (2), Ludlow and Palmer; but excluding all other employees, store managers, front-end department man- agers, meat department managers, office clericals, professional employees, guards and supervisors as defined in the Act. BIG Y Foo)s, INC. IG Y FOODS, INC. 873