Piggly Wiggly Red River Co., Inc.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Piggly Wiggly Red River Company, Inc. and Food Handlers Local 425 of the Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL- CIO. Case 26-CA-3870 May 6, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN Notice To Show Cause why the General Counsel's Mo- tion for Summary Judgment should not be granted. Respondent thereafter filed an opposition in response to Notice To Show Cause, praying the Board to dismiss the General Counsel's Motion for Summary Judgment. 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 powers in connection with this case to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Upon a charge filed on December 18, 1970, by Food Handlers Local 425 of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, and duly served on Piggly Wiggly Red River Company, Inc., herein called the Respondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Re- gion 26, issued a complaint on January 11, 1971, against Respondent, alleging that Respondent had en- gaged in and was engaging 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 Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Exam- iner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on or about August 18, 1970, following a Board election in Case 26-RC-3726 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about December 14, 1970, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Un- ion has requested and is requesting it to do so. On January 18, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and pleading certain affir- mative defenses. On January 28, 1971, counsel for the General Coun- sel filed directly with the Board a Motion for Summary Judgment, alleging that the Respondent's answer to the complaint raises no factual or legal issues warranting an evidentiary hearing, and, therefore, requests the Board to grant the Motion for Summary Judgment. Subsequently, on February 1, 1971, the Board issued an order transferring the proceeding to the Board and a I Official notice is taken of the record in the representation proceeding, Case 26-RC-3726 as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. RULING ON THE MOTION FOR SUMMARY JUDGMENT In its opposition t0 the General Counsel's Motion for Summary Judgment, as well as in its answer to the complaint, the Respondent asserts that it was deprived of due process by reason of the failure of the Acting Regional Director and the Board to direct a hearing in conjunction with its objections to the election in Case 26-RC-3726. Additionally, the Respondent asserts in its opposition, as it did in its answer to the complaint, that the Regional Director erred in his unit determina- tion in that underlying representation case. On the ba- sis of these assertions the Respondent contends that the General Counsel's motion should be denied, and the Board should direct an evidentiary hearing in this un- fair labor practice proceeding. For the reasons ad- vanced below, we find no merit in the Respondent's assertions and contentions. The record in Case 26-RC-3726 reflects that pursu- ant to a petition filed by the Union on March 9, 1970, a hearing was conducted in the representation case on March 25, 1970. Subsequent to the close of the hearing, and after receipt of a brief from the Respondent, the Regional Director issued his Decision and Direction of Election in which he rejected certain of the Respond- ent's contentions and found that the unit herein de- scribed was appropriate for the purposes of collective bargaining. On May 6, 1970, the Respondent filed a request for review with the Board, which was denied by telegraphic order dated May 13, 1970. At the conference scheduled prior to the election on May 26, 1970, the Respondent for the first time chal- lenged the Union's showing of interest, asserting super- visory participation in the organizational campaign. Although he rejected the Respondent's request that the election be rescheduled, the Regional Director im- pounded the ballots and conducted an administrative investigation. Upon the results of the investigation it was determined that the Union's showing of interest was adequate and not tainted by supervisory participa- tion and, accordingly, the Regional Director directed that the ballots be opened and counted. On July 8, 1970, the ballots were opened and counted, and the 190 NLRB No. 55 PIGGLY WIGGLY RED RIVER COMPANY tally of ballots reflected that of 10 valid votes cast, 6 ballots had been cast in favor of the Union. Thereafter, on July 13, 1970, the Employer filed timely objections to the conduct of the election, alleging in two separate objections that the Union' s organizational campaign had been initiated, prosecuted, and dominated by one of its meat department managers, an acknowledged supervisor. On August 18, 1970, after an investigation, and hav- ing afforded the Respondent opportunity to present witnesses and evidence in support of its objections, the Acting Regional Director issued a Supplemental Deci- sion and Certification of Representative. In the decision the Acting Regional Director determined that notwith- standing the meat department manager was a super- visor and did participate in the Union's preelection campaign, the Respondent was aware of the manager's activities at a time more than 3 months prior to the election. In the face of such knowledge, and having failed to disavow the manager's acts and conduct, the Acting Regional Director concluded that the Respond- ent could not rely on the conduct alleged as grounds for setting aside the election. Accordingly, the Acting Re- gional Director overruled the Respondent's objections in their entirety and certified the Union as the bargain- ing agent in the appropriate unit. The Respondent filed a request for review, which the Board denied by tele- gram dated September 30, 1970. Upon the foregoing review of the several stages of the representation proceeding, we find that the Respond- ent's assertions and contentions as advanced in its an- swer to the complaint and its opposition to the Motion for Summary Judgment constitute an attempt to liti- gate in this unfair labor practice proceeding the same issues which it raised and which were decided adversely to its contentions in Case 26-RC-3726. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been raised in a prior representation proceeding.' All issues raised by the Respondent in this proceed- ing were or could have been raised in the prior repre- sentation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, 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 the Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. ' See Pittsburgh Plate Glass Co. v N.L.R.B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 289 We shall, accordingly, 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 THE RESPONDENT The Respondent is a corporation doing business in the State of Arkansas, with three retail stores located at Hot Springs, Arkansas, where it is engaged in the retail grocery business. During the past 12 months, Respondent, in the course and conduct of its business operations at its Hot Springs, Arkansas, stores, sold and distributed products, the gross volume of which exceeded $500,000 and during the same period of time, the Respondent's Hot Springs, Arkansas, stores pur- chased and received products valued in excess of $50,- 000 from points located outside the State of Arkansas. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein.' II. THE LABOR ORGANIZATION INVOLVED Food Handlers Local 425 of the Amalgamated Meat Cutters and Butcher Workmen of North America, 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 the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed in the meat departments of the Re- spondent's three stores at Hot Springs, Arkansas, excluding grocery department employees, produce department employees, the store managers, the as- sistant store managers, guards, watchmen and supervisors as defined in the Act. ' In its answer the Respondent neither admits nor denies that it is en- gaged in commerce within the meaning of the Act. We find, however, that in view of its admissions to a gross volume of business in excess of $500,000, and its purchases of products valued in excess of $50,000 from sources located out side the State of Arkansas, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction in this case 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The certification On May 26, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 26 designated the Union as their representa- tive for the purpose of collective bargaining with the Respondent. The Union was certified as the collective- bargaining representative of the employees in said unit on August 18, 1970, 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 Respondent's Refusal Commencing on or about August 25, 1970, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about December 14, 1970, and continuing at all times there- after to date, the Respondent has refused, and contin- ues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since December 14, 1970, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent 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 the Respondent set forth in section III, above , occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce 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 meaning of Section 8(a)(5) and ( 1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached , embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Piggly Wiggly Red River Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Food Handlers Local 425 of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees em- ployed in the meat departments of the Respondent's three stores at Hot Springs, Arkansas, excluding gro -cery department employees, produce department em- ployees, the store managers, the assistant store manag- ers, guards, watchmen 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 August 18, 1970, the above- named labor organization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 14, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respond- ent in the appropriate unit, Respondent has engaged 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 to them in 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 meaning of Section 2(6) and (7) of the Act. PIGGLY WIGGLY RED RIVER COMPANY ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Piggly Wiggly Red River Company, Inc., its officers, agents, succes- sors, 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 Food Handlers Local 425 of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appro- priate unit: All full-time and regular part-time employees employed in the meat departments of the Re- spondent's three stores at Hot Springs, Arkansas, excluding grocery department employees, produce department employees, the store managers, the as- sistant store managers, guards, watchmen and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaran- teed 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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 agree- ment. (b) Post at Hot Springs, Arkansas, stores copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 26, after being duly signed by Respond- ent's representative, shall be posted by Respondent im- mediately 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 al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD " shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " APPENDIX 291 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS 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 Food Handlers Local 425 of the Amalgamated Meat Cutters and Butcher Workmen of North America, 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 Sec- tion 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 employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time em- ployees employed in the meat departments of the Respondent's three stores at Hot Springs, Arkansas, excluding grocery department em- ployees, produce department employees, the store managers, the assistant store managers, guards, watchmen and supervisors as defined in the Act. PIGGLY WIGGLY RED RIVER COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1720 West End Building, Room 403, Nashville, Tennessee 37203, Telephone 615-242-5922.