K-Mart Corp.

K-MAR'T CORPORA FIO)N K-Mart Corporation and United Food and Commer- cial Workers International Ulnion, ,Local 896, AFI,- CIO. Case 14- CA 12138 July 16, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JINKINS AND PNF. .() Upon a charge filed on January 2, 1979, by the Retail Clerks International Association, Local 896, AFL-CIO CLC, herein called the Charging Party or Union, and duly served on K-Mart Corporation. herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 14, issued a complaint on February 7, 1979, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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, com- plaint, and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices the com- plaint alleges, in substance, that the Union is the ex- clusive bargaining representative of an appropriate unit of Respondent's employees at the Harrisburg, Il- linois, store.2 On or about October 25, 1977, Respon- dent agreed to a collective-bargaining agreement with the Union covering the period from August 1, 1977, through January 30, 1979. By letter dated October 27, 1978, the Union requested that Respondent meet and bargain for the period following expiration on Janu- ary 30, 1979, of the foregoing collective-bargaining agreement. By letter dated November 30, 1978, Re- spondent's agent, William Szykula, responded to the letter by stating, inter alia: . . . this is to advise that it is the Company's intent to terminate said contract on the date of its expiration. In light of the petition filed by the employees at the Harrisburg store (Case No. 14-RD-654) the Company is prohibited from bargaining with i The name of the Union is amended to reflect the new name resulting from the merger of Retail Clerks International Union and Amalgamated Meatcutters and Butcher Workmen of North America, effective June 7. 1979. 2 The appropriate unit is: All employees employed by the Employer at its Harrisburg, Illinoi, store, excluding office clerical employees, maintenance employees, man- agers and owners, and members of their immediate fa-mily, one assistant manager professional employees, guards and supervisors as defined In the Act your Union. Once this matter is resolved we will review the situation and, if appropriate, com- mence negotiations. Since on or anout November 30. 1978, and con- tinuing to date Respondent has refused to bargain collectively with the Union as the employees' exclu- sive bargaining representative. In its answer Respondent denies that it agreed to a collective-bargaining agreement with the Union cov- ering the employees in the appropriate unit for the period from August 1, 1977, through January 30, 1979. Respondent admits that the Union has been and was the representative for purposes of collective bargaining of employees in said appropriate unit, but asserts that it has a "good-faith doubt" as to whether the Union is now the representative of all employees in said unit. Respondent asserts that a petition filed on November 6, 1978, seeking to decertify the Union as the exclusive representative for the unit herein, raises a "good-faith doubt" on Respondent's part as to the continuing majority status of the Union as the exclusive representative of the employees in the unit involved herein. Accordingly, Respondent asserts that it cannot bargain in good faith with the Union. On February 27, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently., on March 6, 1979, the Board issued an Order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response in opposition to the Motion for Summary Judgment and attached two exhibits: (I) an "amended answer" to the complaint and (2) a letter designated "Exhibit B," to counsel for General Coun- sel which apparently relates to Settlement discussions. The counsel for General Counsel responded to Re- spondent's opposition and asserted that the "amended answer" fails to raise any issue of fact war- ranting hearing, and that Respondent's Exhibit B in- volves matters which need not and should not be con- sidered in determining whether the motion should be granted. 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 The complaint alleges that Respondent agreed to a collective-bargaining agreement effective August 1, 1977. through January 30. 1979. a contract which was 243 NLRB No. 78 483 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the subject of litigation in a prior unfair labor prac- tice case involving the same parties. K-Mart Corpora- tion, 238 NLRB 1173 (1978). In that case the Board adopted the Administrative Law Judge's findings that Respondent had refused to execute the agreed-upon contract with the Charging Party. The Board ordered Respondent to execute the contract.3 Subsequent to the issuance of the Board's Decision and Order, a petition seeking to decertify the Charging Party was filed by an individual on November 6, 1978, and docketed as Case 14-RD-654. On November 14, 1978, the Regional Director for Region 14 dismissed the petition based on the above-mentioned unfair la- bor practice. As noted, the complaint in the instant case alleges that Respondent agreed to the contract which was the subject of litigation in K-Mart Corporation, supra. Re- spondent, by its answer, denies that it agreed to a collective-bargaining agreement. Respondent's denial that it did not agree to a collective-bargaining agree- ment was litigated in the prior proceeding and cannot be relitigated in the current proceeding. Therefore, there is no issue of fact necessitating a hearing. Fur- ther, paragraph 8 of the complaint alleges that the Charging Party requested bargaining concerning "terms and conditions of employment for the period following expiration on January 30, 1979, of the col- lective-bargaining agreement described above." Re- spondent admits the allegation in paragraph 8. Also, the complaint, at paragraph 9, sets forth a portion of a letter dated November 30, 1978, which was alleg- edly sent by Respondent to the Charging Party. Therein Respondent stated that it intended to termi- nate the "said contract on the date of its expiration." Respondent admits the allegation. The contract re- ferred to is the same collective-bargaining agreement that Respondent elsewhere in its answer denies that it agreed to. Paragraph 10 of the complaint alleges that since on or about November 30, 1978, Respondent has failed and refused, and continues to fail and refuse, to meet with the Union and confer in good faith with respect to wages, hours, and other terms and conditions of employment. Respondent, in its amended answer, de- nies this allegation and contends that the denial raises issues of fact and law, and that it is entitled to a hear- ing at which it will adduce evidence in defense of the charges leveled against it. Contrary to the contention of Respondent, we find that by its conduct Respondent has refused to meet 3 The case is currently pending enforcement in the Court of Appeals for the Seventh Circuit. There is nothing in the circumstances herein to warrant departure from our present policy of processing our (aXS) summary judg- ment proceedings to a conclusion pending court adjudication of a related Board unfair labor practice proceeding. See Burns International Security Ser- vices, Inc., 229 NLRB 112 (1977). with the Union, and that there is no issue of disputed fact warranting or requiring a hearing in this matter. The Regional Director's dismissal of the petition in Case 14-RD-654, to which- no appeal was taken, acted to terminate any issue concerning the majority status of the Charging Party during the pendency of unfair labor practice charges. While the petition was timely filed, a question concerning representation could not be raised then and cannot appropriately be raised at this time.4 No substantial and previously unavailable evidence being offered, it follows that the Union has been, and is now, the exclusive collective-bargaining representa- tive of the employees, that Respondent has raised no unresolved matters requiring an evidentiary hearing, and that Respondent's refusal to bargain with the Union is a violation of the Act. The General Coun- sel's Motion for Summary Judgment is therefore ap- propriate and is granted. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent maintains its corporate headquarters in Troy, Michigan. Respondent also maintains stores throughout the United States, including a store in Harrisburg, Illinois, where it is engaged in the sale and distribution of clothing, footwear, hardware, household goods, and related products. During the 12-month period ending December 13, 1978, Respon- dent derived gross revenues in excess of $500,000 and purchased and caused to be delivered directly to its Harrisburg, Illinois, store from outside Illinois goods and materials valued in excess of $50,000. We find, on the basis of the foregoing, that Respon- dent 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 United Food and Commercial Workers Interna- tional Union, Local 896, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES The 8(a)(5) and (1) Violations On or about October 25, 1977, Respondent agreed to a collective-bargaining agreement with the Union 4Big Three Industries, Inc., 201 NLRB 197 (1973). 484 K-MART CORPORATION covering the period from August I, 1977. through January 30, 1979, and covering the terms and condi- tions of employment of the employees in the follow- ing described unit: All employees employed by the Employer at its Harrisburg, Illinois store, excluding office cleri- cal employees, maintenance employees, manag- ers and owners, and members of their immediate family, one assistant manager, professional em- ployees, guards and supervisors as defined in the Act. The Union is now, and at all material times has been, the exclusive bargaining representative of the employees in the above-described unit within the meaning of Section 9(a) of the Act. By letter dated October 27, 1978. the Union requested that Respon- dent meet and bargain concerning the terms and con- ditions of employment for the period following expi- ration on January 30, 1979, of the collective- bargaining agreement described above. Since on or about November 30, 1978, and continuing to date Re- spondent has failed and refused and continues to fail and refuse to bargain in good faith with the Union as the exclusive collective-bargaining representative of all employees in the unit described above. Accordingly, we find that Respondent, since on or about November 30, 1978, and at all times thereafter, has refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that by such refusal Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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 operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit and, if an understanding is reached, embody such understanding in a signed agreement. The Board, upon the basis of the foregoing facts and the entire record, makes the following: Conclusions of Law 1. Respondent. K-Mart Corporation, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Interna- tional Union, Local 896, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All employees employed by the Employer at its Harrisburg, Illinois, store, excluding office clerical employees, maintenance employees, managers and owners, members of their immediate families, one assistant manager, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. The above-named labor organization has been and is now the exclusive representative of all employ- ees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 30, 1978, and at all times thereafter to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain Respondent has interfered with, restrained, and coerced and is in- terfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them by Section 7 of the Act and thereby has engaged in and is engag- ing 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 mean- ing 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 Rela- tions Board hereby orders that the Respondent, K- Mart Corporation, Harrisburg, Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay. wages, hours, and other terms and con- ditions of employment with United Food and Com- mercial Workers International Union, Local 896, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: 485 DE4CISIONS OF NATIONAL LABOR RELATIONS BOARD All employees employed by the Employer at its Harrisburg, Illinois store, excluding office cleri- cal employees, maintenance employees, manag- ers and owners, and members of their immediate family, one assistant manager, professional em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Harrisburg, Illinois, place of business copies of the attached notice marked "Appendix."s Copies of said notice, on forms provided by the Re- gional Director for Region 14, after being duly 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice eading "Posted by order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF IHE NATIONAL LABOR RELA IONS BOARD) An Agency of the United States Government WE WIlkl NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 896, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILl NOT in any like or related manner interfere with, restrain, or coerce our employees 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 representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed by the Employer at its Harrisburg, Illinois store, excluding office cleri- cal employees, maintenance employees, manag- ers and owners, and members of their immediate family, one assistant manager, professional em- ployees, guards and supervisors as defined in the Act. constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. K-MART CORPORATION 486