Clover Food Market, Inc.

CLOVER FOOD MARKET 241 Clover Food Market, Inc. and Retail Clerks Local 1360, Retail Clerks and Managers Union, aff/w Retail Clerks International Association, AFL- CIO. Case 4-CA-6074 November 13, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on July 10, 1972, by Retail Clerks Local 1360, Retail Clerks and Managers Union, aff/w Retail Clerks International Associa- tion, AFL-CIO, herein called the Union, and duly served on Clover Food Market, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 4, issued a complaint on July 25, 1972, against Respondent, alleging that Respondent had engaged 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 an Administrative 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 March 29, 1972, following a Board election in Case 4-RC-9230 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commencing on or about June 5, 1972, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively ,with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On August 2, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 16, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 22, 1972, the Board issued an order transferring the proceeding; to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause, called Statement in Opposition. Pursuant' to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 and response to the Notice To Show Cause, Respondent contends, in effect, that the unit is inappropriate, and that the Board agent in charge of the polling improperly closed the polls early, thereby depriving an eligible employee, whose vote could have affected the results of the election, of the opportunity to vote. Conse- quently, it argues that the subsequent certification of the Union was improper and invalid. The General Counsel contends that, because the Respondent is attempting to relitigate issues which were litigated and decided in the earlier representation proceeding, and which therefore may not be relitigated here, he is entitled to summary judgment. We agree. The record in Case 4-RC-9230 reflects that on August 9, 1971, the Regional Director issued a Decision and Direction of Election finding appropri- ate a unit excluding delicatessen employees. On August 27, 1971, Respondent filed a Request for Review with the Board on the grounds that the exclusion of delicatessen employees made the unit inappropriate. By telegraphic order dated October 4, 1971, the Board denied the Respondent's Request for Review as it raised no substantial issues warranting review. On October 19, 1971, an election was conducted with the result that 21 votes were cast for, and 19 votes against, the Union, with 5 challenged ballots, determinative of the election. Subsequently, Respon- dent filed timely objections to conduct affecting the results of the election. Following investigation, the Regional Director on December 7, 1971, issued a Supplemental Decision on Challenged Ballots sustaining three of the challenges and overruling the challenges with respect to the remaining two ballots. The Respondent filed a timely Request for Review of the Regional Director's supplemental decision. On March 13, 1972, the Board issued its Decision on Review finding, contrary to the Regional Director, that the challenge to one of the remaining two ballots should be sustained, and directing that the remaining ballot be opened and counted and that the case be remanded to the Regional Director for further action on i The title of "Trial Examiner" was changed to "Administrative Law LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Judge" effective August 19, 1972. Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 2 Official notice is taken of the record in the representation proceeding, F Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d Case 4-RC-92^0, as the term "record" is defined in Secs. 102.68 and 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 102k9(f) of the Board's Rules and Regulations, Series 8, as amended. See 200 NLRB No. 17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's objections. A revised tally of ballots disclosed a final result of 21 votes for the Union, and 20 votes against. On March 29, after investigation, the Regional Director issued a Supplemental Decision on Objec- tions and Certification dismissing Respondent's objections, and certifying the Union in the appropri- ate unit. In its objections, Respondent had alleged, inter alia, that the Board agent's watch was approxi- mately 3 minutes fast, and that he had improperly closed the polls early, thereby depriving an eligible employee of the opportunity to vote, where his vote could have affected the results of the election. The Regional Director had found that the Respondent's counsel had, in effect, acquiesc 1 in the use of the Board agent's watch as the official timepiece. On April 27, 1972, Respondent filed a Request for Review raising again this eligibility issue, and by telegraphic order dated May 17, 1972, the Board denied the Respondent's request as it raised no substantial issues warranting review. In its answer to the complaint herein, and its response to the Notice To Show Cause, Respondent again raises the unit and eligibility issues which had been litigated and determined in the representation proceeding. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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 litigated in a prior representation proceeding .3 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation 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 properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under the laws of the State of New Jersey, with its principal office and place of business at Cherry Hill, New Jersey, where it is engaged in the business of retail food sales. Respondent's annual sales are valued in excess of $500,000, and Respondent's annual purchases from outside the State of New Jersey are valued in excess of $50,000. We find, on the basis of the foregoing, that Respondent 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 Retail Clerks Local 1360, Retail Clerks and Man- agers Union, aff/w Retail Clerks International As- sociation, 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 con- stitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All employees, excluding meat and delicatessen department employees, produce department man- ager, bakery department manager, grocery de- partment manager, front end manager, head cashier, guards and supervisors as defined in the Act. 2. The certification On October 19, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 4, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on March 29, 1972, 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 June 1, 1972, and at all times thereafter, the Union has requested the 3 See Pittsburgh Plate Glass Co. v. NLRB., 313 US. 146, 162 (1941); Rules and Regulations of the Board, Secs 102.67(f) and 102.69(c). CLOVER FOOD MARKET Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 5, 1972, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 5, 1972, 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, Respon- dent 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 opera- tions 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 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 243 1. Clover Food Market, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Local 1360, Retail Clerks and Managers Union, aff/w Retail Clerks International Association, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. 3. All employees, excluding meat and delicatessen department employees, produce department manag- er, bakery department manager, grocery department manager, front end manager, head cashier, guards and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 29, 1972, 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 June 5 , 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent 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, Respon- dent has interfered with , restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged 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 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 Relations Board hereby orders that Respondent, Clover Food Market, 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 Retail Clerks Local 1360, Retail Clerks and Managers Union, aff/w Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees, excluding meat and delicatessen department employees, produce department man- 244 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD ager, bakery department manager, grocery de- partment manager, front end manager, head cashier, guards and supervisors as defined in 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Cherry Hill, New Jersey, retail food outlet copies of the attached notice marked "Appen- dix."4 Copies of said notice, on forms provided by the Regional Director for Region 4, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." APPENDIX 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 Retail Clerks Local 1360, Retail Clerks and Managers Union, aff/w Retail Clerks International Associa- tion, 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 described 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 agree- ment. The bargaining unit is: All employees, excluding meat and delicates- sen department employees, produce depart- ment manager, bakery department manager, grocery department manager, front end manager, head cashier, guards and supervi- sors as defined in the Act. CLOVER FOOD MARKET, 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 compli- ance with its provisions may be directed to the Board's Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylva- nia 19107, Telephone 215-597-7601.