The Stop & Shop Companies, Inc.

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Stop & Shop Companies, Inc., Medi-Mart Divi- sion and United Pharmacists Guild Local 100, char- tered by Retail Clerks International Association, AFL-CIO. Case 1-CA-11533 June 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on March 16, 1976, by United Pharmacists Guild Local 100, chartered by Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on The Stop & Shop Companies, Inc., Medi-Mart Division, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on March 29, 1976, against Respondent, 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 Administra- tive Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the re- cord shows, in substance, that on December 30, 1975, following a Board election in Case 1-RC-14049, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; ' and that, commenc- ing on or about March 5, 1976, 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 Union has requested and is requesting it to do so. On April 8, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits all of the factual allegations of the complaint, except those paragraphs which relate to the appropriateness of the unit and the resulting certification in the un- derlying representation proceeding, Case 1-RC- 14049. 'Official notice is taken of the record in the representation proceeding, Case I-RC-14049, 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 (C A 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA, as amended On April 21, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment, with exhibits attached, submitting, in effect, that Respondent's answer to the complaint raises no issues which were not previously considered and decided, and requesting the Board to grant the Motion for Summary Judgment. Subsequently, on April 28, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a memorandum in opposition to the Motion for Summary Judgment and brief. 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 As reflected above, the Respondent's answer to the complaint admits all of the factual allegations there- in, including its refusal to recognize and bargain with the Union which had been certified as the bargaining representative of the employees described in the complaint. The Respondent further admits that its refusal-to-bargain position is taken to obtain judicial review.2 In its answer to the complaint, as well as in its opposition to the Motion for Summary Judgment and brief,3 the Respondent attacks the appropriate- ness and scope of the unit as found by the Regional Director in his Decision and Direction of Election, in which he concluded that pharmacy managers were not supervisors and included them in the appropriate unit.4 Respondent now asserts that such employees are supervisors and should be excluded from the unit. By this assertion, and more specifically by its denials, in whole or in part, of the allegations of the complaint and the arguments propounded in the Respondent's opposition to the Motion for Summary Judgment, the Respondent is attempting to relitigate the same issues which it raised in the representation proceeding, Case 1-RC-14049. 2 By letter dated March 5, 1976, the attorney for Respondent notified the attorney for the Union that it was the Respondent's intention to seek judi- cial review by the court of appeals of the Board's determination concerning the appropriateness of the unit and that it would not bargain until the court affirmed the Board's determination 3 The brief is the same as Respondent previously submitted in the prior representation proceeding By telegraphic order dated December 15, 1975, the Board denied the Respondent's request for review of the Regional Director's Decision and Direction of Election as it raised no substantial issues warranting review Although Chairman Murphy agreed to deny review, the Order noted that she would vote pharmacy managers subject to challenge 225 NLRB No. 2 STOP & SHOP COMPANIES, INC 7 In its opposition to the Motion for Summary Judg- ment the Respondent asserts that the Board, when considering Respondent's request for review, should have had before it the transcript of hearing held on October 16, 1975, and that the Board's denial was based solely on an examination of the Regional Director's decision. The Board's Rules and Regula- tions do not require that the Board have before it a transcript of hearing in ruling on a request for re- view.5 However, when review has been granted the Board will review the transcript.' Thus, after review- ing the Regional Director's decision and Respon- dent's request for review and brief, including the transcript citations and the arguments propounded therein, the Board, on such basis, denied Respon- dent's request as it raised no substantial issues war- ranting review.' It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor are there any special circumstances 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 pro- ceeding. 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 of Suffolk, and Commonwealth of Massachusetts, and is now and continuously has been engaged in the operation of retail establishments in Connecticut and other States where it sells a wide variety of retail mer- chandise, including patent medicine and other health care products. The Respondent operates a registered pharmacy department within each store. Respondent in the course and conduct of its busi- ness causes, and continuously has caused at all times material herein, large quantities of drug and health care products and other merchandise to be pur- chased and transported in interstate commerce from and through various States of the United States other than the State of Connecticut. Annually, Respon- dent, in the course and conduct of its business opera- tions, purchased, transferred, and delivered to its Connecticut stores drug and health products and other merchandise of which merchandise valued in excess of $50,000 was shipped to its Connecticut stores directly from States of the United States other than the State of Connecticut. Annually Respondent has gross retail sales in excess of $500,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 assertjuris- diction herein. 11. THE LABOR ORGANIZATION INVOLVED United Pharmacists Guild Local 100, chartered by Retail Clerks International Association, 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 Respondent is and has been at all times material herein a corporation duly organized under and ex- isting by virtue of the laws of the Commonwealth of Massachusetts. At all times material herein, Respon- dent has maintained its principal office and place of business at 393 D Street in the city of Boston, county 5 Sec 102 67(d) states in part "Any request for review must be a self- contained document enabling the Board to rule on the basis of its contents without the necessity of recourse to the record " 6 See Sec 102 67(g), Rules and Regulations, Series 8, as amended 7 See In 4, supra 8 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All registered pharmacists, including pharmacy managers, employed in the Respondent's Medi- Mart Division stores located at Wethersfield, Hartford, Simsbury, Orange, Darian, Williman- tic, Branford, Westport, Stratford, and Water- ford, Connecticut, but excluding all other em- ployees, pharmacy interns, clerical employees, guards and supervisors as defined in the Act. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The certification On December 19, 1975, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 1, 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 December 30, 1975, 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 March 2, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 5, 1976, 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 representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 5, 1976, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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, inti- mate, 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 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. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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 (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); Bur- nett 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. The Stop & Shop Companies, Inc., Medi-Mart Division, is an employer engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act. 2. United Pharmacists Guild Local 100, chartered by Retail Clerks International Association, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All registered pharmacists, including pharmacy managers, employed in the Respondent's Medi-Mart Division stores located at Wethersfield, Hartford, Simsbury, Orange, Darian, Willimantic, Branford, Westport, Stratford, and Waterford, Connecticut, but excluding all other employees, pharmacy interns, clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 30, 1975, the above- named la- bor 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 March 5, 1976, 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 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 interfering 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 engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. STOP & SHOP COMPANIES, INC 9 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 Re- lations Board hereby orders that Respondent, The Stop & Shop Companies, Inc., Medi-Mart Division, Boston, Massachusetts, 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 con- ditions of employment with United Pharmacists Guild Local 100, chartered by Retail Clerks Interna- tional Association, AFL-CIO, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All registered pharmacists, including pharmacy managers, employed in the Respondent's Medi- Mart Division stores located at Wethersfield, Hartford, Simsbury, Orange, Darian, Williman- tic, Branford, Westport, Stratford, and Water- ford, Connecticut, but excluding all other em- ployees, pharmacy interns, clerical 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 Medi-Mart Division stores located at Wethersfield, Hartford, Simsbury, Orange, Dari- an, Willimantic, Branford, Westport, Stratford, and Waterford, Connecticut, copies of the attached no- tice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's represen- tative, 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. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9In 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 Unit- ed Pharmacists Guild Local 100, chartered by Retail Clerks International Association, AFL- CIO, as the exclusive representative of the em- ployees 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 represen- tative 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 registered pharmacists, including pharma- cy managers, employed in the Respondent's Medi-Mart Division stores located at Weth- ersfield, Hartford, Simsbury, Orange, Darian, Willimantic, Branford, Westport, Stratford, and Waterford, Connecticut, but excluding all other employees, pharmacy interns, clerical employees, guards and supervisors as defined in the Act. THE STOP & SHOP COMPANIES, INC., MEDI-MART DIVISION