Mark-It Foods

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith's Management Corporation, d/b/a Mark-It Foods and Retail Clerks Union, Local No. 560, chartered by Retail Clerks International Associa- tion, AFL-CIO. Case 19-CA-5973 July 23, 1975 SUPPLEMENTAL DECISION AND ORDER On February 5, 1974, the National Labor Rela- tions Board issued a Decision and Order' in the above-entitled proceeding, and found that the Re- spondent, Smith's Management Corporation, d/b/a Mark-It Foods (Respondent or Smith's), had not vio- lated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to recognize and bargain with the Union, Retail Clarks Union, Local No. 560, chartered by Retail Clerks Interna- tional Association, AFL-CIO, and dismissed the complaint in its entirety. Thereafter, on February 4, 1975, the Board's Order was reversed and the case remanded by the United States Court of Appeals for the District of Columbia upon a petition for review filed by the Clerks.' The Board, having accepted the remand, will re- consider the above-mentioned Decision and Order in conformity with the court's opinion which we re- spectfully recognize as binding on us for the purpose of deciding this case. The Board has again considered the record and the Administrative Law Judge's Decision dated March 8, 1973, in light of the opinion of the United States Court of Appeals for the District of Columbia dated February 4, 1975, and for reasons set forth in the Houston Division of the Kroger Co. issued this day,3 has decided to affirm the rulings, findings, and con- clusions of the Administrative Law Judge which are not inconsistent herewith. The facts are not in dispute. On July 11, 1972, Smith's executed a contract 4 which recognized the Clerks as the sole and exclusive bargaining agent for all its employees employed in is present and future retail food stores situated within the area of Pocatel- lo, Idaho, and the immediate vicinity. On March 28 Smith's opened a new store in Pocatello and on July 17 the Clerks requested recognition on the basis of the "additional store clause" in the contract and also proffered concededly valid union authorization cards from a majority of the new store's employees. Smith's '208 NLRB 938. 2 Retail Clerks International Association, Local No 560, AFL-CIO v. N.L R B, 510 F 2d 802 (1975). '219 NLRB No 43 ° The contract was executed pursuant to an order of the Board in Smith's Management Corporation d/b/a Frazier 's Market, 197 NLRB 1156 (1972). refused to recognize the Clerks and filed a petition for a Board-conducted election. The Clerks re- sponded by filing the instant charges. The Administrative Law Judge found that Linden Lumber 5 guaranteed Smith's right to demand a Board-conducted election, notwithstanding the cir- cumstances of this case, and, accordingly, dismissed the complaint. Thereafter, the Board adopted the Administrative Law Judge's Decision. In light of the opinion of the court of appeals and for the reasons stated in our Kroger decision issued this day, we find that Smith's has violated Section 8(a)(5) of the Act by virtue of its refusal to recognize and bargain with the Clerks. We shall therefore order that Smith's recognize and bargain with the Clerks upon demand. AMENDED CONCLUSIONS OF LAW Delete paragraph 3 and add the following after the last sentence in paragraph 2: "Said unit constitutes an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. By refusing to bargain with the Union on and after July 17, 1972, Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practice affects com- merce within the meaning of Section 2(6) and (7) of the Act." REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, we shall order the Respon- dent to cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights, and take certain affirmative action designed to effectuate the policies 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, Smith's Management Corporation d/b/a Mark-It Foods, Pocatello, Idaho, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Retail Clerks Union, Local No. 560, as the exclusive repre- sentative of its employees in its Mark-It Foods store s Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971). MARK-IT FOODS in Pocatello, Idaho, in the appropriate unit as set forth below: All employees of the employer employed in the employer's Mark-It Food store, in Pocatello, Idaho, except: Employees working in the meat department who are engaged in the handling, cutting, selling, processing, wrapping, or display- ing of meat, poultry, sausage or fish, frozen, chilled or smoked; employees in the restaurant department engaged in the preparation and serving of food for consumption in the restau- rant; bakers engaged in the production and preparation of bakery products; managers, as- sistant-managers and other supervisors as de- fined in the National Labor Relations Act. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, recognize and bargain collec- tively with the aforesaid Retail Clerks Union Local No. 560, as the exclusive representative of its em- ployees in its Mark-It Foods store, in Pocatello, Ida- ho, in the appropriate unit as defined above. (b) Upon request, apply and extend to the em- ployees in its Mark-It Foods store in Pocatello, Ida- ho, in the appropriate unit as defined above, the ex- isting collective-bargaining agreement it has with Retail Clerks Union Local No. 560, with retroactive effect from and after that Local's demand for recog- nition. (c) Post at its Mark-It Foods store in Pocatello, Idaho, copies of the attached notice marked "Appen- dix." 6 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be post- ed by the 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 the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER KENNEDY, dissenting: For the reasons set forth in my dissent to the Sup- plemental Decision and Order in the Houston Divi- sion of the Kroger Company, 219 NLRB No. 43, is- sued today, I would dismiss the complaint herein. I adhere to the original Decision herein. In my view, 403 the Board should have sought review by the United States Supreme Court of the adverse decision of the United States Court of Appeals for the District of Columbia in this matter by filing a petition for certi- orari. MEMBER PENELLO, dissenting: For the reasons set forth in my dissent to the Sup- plemental Decision and Order in the Houston Divi- sion of the Kroger Company, 219 NLRB No. 43, is- sued today, I would dismiss the complaint herein. I adhere to the original Decision herein, I would not accept the remand from the court of appeals, and I would instead seek certiorari. 6 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 with Retail Clerks Union Local No. 560, as the exclusive representative of our employees in the appropriate unit noted below with respect to wages, hours, or any other terms or conditions of employment, to wit: All employees of the employer employed in the employer's Mark-It Foods store, in Poca- tello, Idaho, except: Employees working in the meat department who are engaged in the handling, cutting, selling processing, wrap- ping, or displaying of meat, poultry, sausage or fish, frozen, chilled or smoked; employees in the restaurant department engaged in the preparation and serving of food for consump- tion in the restaurant; bakers engaged in the production and preparation of bakery prod- ucts; managers, assistant-managers and other supervisors as defined in the National Labor Relations Act. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. WE WILL, upon request, recognize and bargain with the aforesaid Retail Clerks Union Local No. 560, as the exclusive bargaining representa- tive of all the employees in the appropriate unit 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as set forth in the first paragraph hereof above. priate unit described above, with retroactive ef- WE WILL, upon request, apply our existing fect from the date of Local 560's demand for contract with Retail Clerks Union Local No. recognition. 560, to the employees in our Mark-It Foods store in Pocatello, Idaho, as part of the appro- SMITH'S MANAGEMENT CORPORATION d/b/a MARK-IT FOODS