King's Markets, Inc.

KING'S MARKETS, INCORPORATED King's Markets, Incorporated and Retail Clerks Union, Local 278 affiliated with Retail Clerks International Association, AFL-CIO-CLC. Case 5-CA-8619 November 15, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on May 13, 1977, by Retail Clerks Union, Local 278 affiliated with Retail Clerks International Association, AFL-CIO-CLC, herein called the Union, and duly served on King's Markets, Incorporated, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint and notice of hearing on June 7, 1977, 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 10, 1977, following a Board election in Case 5-RC-9935 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about April 29, 1977, 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 June 17, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 5, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 10, 1977, 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 entitled "Answer to Notice To Show Cause." lOfficial notice is taken of the record in the representation proceeding, Case 5-RC-9935, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26 233 NLRB No. 60 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 denies the validity of the Union's certification, contending that the finding that the single-store unit was appropriate contravened Section 9(c)(5) of the Act and that only a single unit comprising all 21 of the Respondent's chain stores constituted an appropriate bargaining unit. The General Counsel contends that Respondent is attempting here to relitigate an issue already heard and determined in the prior representation proceed- ing, which it may not do. We agree with the General Counsel. Our review of the entire record, including the record in Case 5-RC-9935, discloses that after a hearing the Regional Director, in his February 4, 1977, Decision and Direction of Election, found the single-store unit sought by the Union to be appropri- ate and directed an election therein. Respondent filed a timely request for review contending that, based on the record in the underlying representation case which included that in Case 5-RC-9781, the single-store unit was based essentially on the extent of organization contrary to Section 9(c)(5) of the Act and that only a multistore unit was appropriate. In a telegraphic communication of March 1, 1977, the Board (Member Walther dissenting) denied Respon- dent's request for review as raising no substantial issues warranting review. In an election conducted on March 2, 1977, pursuant to the Regional Director's Decision and Direction of Election, the Union was successful by a vote of 16 to 14 with I nondeterminative challenge. There were no objec- tions to the election, and the Regional Director, on March 10, 1977, certified the Union. 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.2 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c). 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Accordingly,3 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 THE RESPONDENT Respondent, a Virginia corporation with its princi- pal office in Lynchburg, Virginia, operates a chain of retail stores in the State of Virginia, where it is engaged in the retail sale and distribution of food and other products. During the preceding 12 months, Respondent had gross sales in excess of $500,000. During the same period Respondent purchased and received, in interstate commerce, goods and supplies valued in excess of $50,000 from points located outside the State of Virginia. 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 Union, Local 278 affiliated with Retail Clerks International Association, AFL-CIO- CLC, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of the Employer at its Florida Avenue store located 3 The Respondent's answer to the complaint denied allegations concern- ing the request and refusal to bargain. Attached to the Motion for Summary Judgment as Exhs. 8 and 9 are copies of two letters the contents of which were not controverted by the Respondent. In the April 11, 1977. letter, the Union requested that the Respondent meet with it for purposes of collective bargaining. In the Apnl 29. 1977. letter replying to the Union's request, the in Lynchburg, Virginia, but excluding the meat department manager, all office clerical employees, casual employees, guards and supervisors as defined in the Act. 2. The certification On March 2, 1977, 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 5, 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 10, 1977, 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 April 18, 1977, and at all times thereafter, the Union has requested the 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 April 29, 1977, 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 April 29, 1977, 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. Respondent declined to bargain with the Union until ordered to do so by the appropriate United States court of appeals. Based on these uncontro- verted exhibits, we find that the request and refusal-to-bargain allegations have been admitted and therefore established. Sierra Paci~fc Hospitals, Inc., d/b/a Riverside Hospitalfor Extended Care, 226 NLRB 767 (1976). 456 KING'S MARKETS, INCORPORATED 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 com- mences 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 (1962); Commerce Company d/b'a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. King's Markets, Incorporated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 278 affiliated with Retail Clerks International Association, AFL-CIO- CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees of the Employer at its Florida Avenue store located in Lynchburg, Virginia, but excluding the meat department manager, all office clerical employees, casual 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 March 10, 1977, 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 April 29, 1977, 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 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 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, King's Markets, Incorporated, Lynchburg, Virginia, 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 Union, Local 278 affiliated with Retail Clerks International Association, AFL-CIO-CLC, as the exclusive bar- gaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees of the Employer at its Florida Avenue store located in Lynchburg, Virginia, but excluding the meat department manager, all office clerical employees, casual employees, 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 Florida Avenue store in Lynchburg, Virginia, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Union, Local 278 affiliated with Retail Clerks International Association, AFL-CIO- CLC, 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 full-time and regular part-time employ- ees at our Florida Avenue store located in Lynchburg, Virginia, but excluding the meat department manager, all office clerical em- ployees, casual employees, guards and su- pervisors as defined in the Act. KING'S MARKETS, INCORPORATED 458