Roth's IGA Foodliner, Inc.

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roth's IGA Foodliner, Inc. and United Food & stipulation agreement was executed by Respondent, Commercial Workers Union Local No. 143-A, the Charging Party, and counsel for the General AFL-CIO. Case 36-CA-3768 Counsel. October 30, 1981 On August 10, 1981, counsel for the General Counsel filed directly with the Board a Motion for DECISION AND ORDER Summary Judgment, seeking a Board finding that Respondent has violated Section 8(a)(1) of the Act BY MEMBERS FANNING, JENKINS, AND as alleged in the complaint and a Decision and ZIMMERMAN Order against Respondent in conformity with the Upon a charge filed on December 3, 1980, an allegations of the complaint, including a bargaining amended charge filed on January 15, 1981, a order. second amended charge filed on January 26, 1981, On August 14, 1981, the Board issued an order and a third amended charge filed on January 30, transferring the proceeding to the Board and a 1981, by United Food & Commercial Workers Notice To Show Cause why the General Counsel's Union Local No. 143-A, AFL-CIO, herein called Motion for Summary Judgment should not be the Union, and duly served on Roth's IGA Food- granted. No response was filed. liner, Inc., herein called Respondent, the General Pursuant to the provisions of Section 3(b) of the Counsel of the National Labor Relations Board, by National Labor Relations Act, as amended, the Na- the Acting Regional Director for Region 19, issued tional Labor Relations Board has delegated its au- an order consolidating cases, a consolidated corn- thority in this proceeding to a three-member panel. plaint, and a notice of hearing on January 30, 1981, Upon the entire record in this proceeding, the against Respondent, alleging that Respondent had Board makes the following: engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Ruling on the Motion for Summary Judgment Sections 8(a)(1) and 2(6) and (7) of the National With respect to the unfair labor practices, the Labor Relations Act, as amended, Copies of the complaint alleges the following: charges, the order consolidating cases, the consoli- (1) The following employees of Respondent con- dated complaint, and the notice of hearing before stitute a unit appropriate for the purpose of collec- an administrative law judge were duly served on tive bargaining within the meaning of Section 9(b) the parties to the proceeding. of the Act: The complaint alleges that certain employees of Respondent constitute a unit appropriate for the employees, meat wrappers, and the head purpose of collective bargaining within the mean- ing of Section 9(b) of the Act. It further alleges meatcutter/eat departent manager em- that on or about May 21, 1980, a majority of the ployed by the Respondent at its Canby, employees of Respondent in that unit designated Oregon, but excluding all other em- and selected the Union as their representative for ployees, office clerical employees, professional employees, guards and supervisors as defined the purpose of collective bargaining. The com- e plaint further alleges that Respondent engaged in various forms of unlawful conduct, including inter- (2) On or about May 21, 1980, a majority of em- rogation, promises of increased benefits, grants of ployees of Respondent in the unit described above pay raises, threats of discharge, and bribery, all in designated and selected the Union as their exclu- violation of Section 8(a)(1) of the Act. sive representative for the purpose of collective Respondent filed an answer, admitting in part bargaining. and denying in part the allegations of the com- (3) At all times since May 21, 1980, the Union, plaint, and requesting that the complaint be dis- by virtue of Section 9(a) of the Act, has been, and missed. Subsequently, on August 4, 1981, Respond- is, the exclusive representative of the employees in ent by stipulation withdrew its answer, with the ex- the unit described above, for he purpose of collec- ception that Respondent continued to deny the al- tive bargaining. legation that the unit found appropriate constituted (4) On November 21, 1980, an NLRB election a unit appropriate for the purpose of collective bar- was held for the employees in the unit described gaining within the meaning of Section 9(c) of the above in Case 36-RC-4348. On November 26, Act. The parties further stipulated that, if the 1980, the Union filed timely objections to the elec- Board found the undenied allegations of the consol- tion. idated complaint to be true, that as a matter of law (5) On or about November 5, 1980, in and about a bargaining order is the appropriate remedy. The the vicinity of its Woodburn facility, Respondent, 259 NLRB No. 15 ROTH'S IGA FOODLINER, INC. 133 through its manager and agent, Darrel Rybloom, As stated above, Respondent by stipulation with- instructed an employee not to join the Union after drew its answer to the complaint, with the excep- his prospective transfer to Respondent's Canby fa- tion that it continued to deny the appropriateness cility. of the unit. Having thereby, in effect, failed to (6) On or about November 18 and 20, 1980, in deny the allegations, and as no good cause to the and about the vicinity of its Canby facility, Re- contrary has been shown, the allegations in the spondent, through Darrel Rybloom, interrogated complaint concerning the unfair labor practices are its employees concerning how they intended to deemed to be true and are so found to be true. vote in the impending NLRB election. Respondent's only contention concerns the ap- (7) On or about November 18, 20, and 24, 1980, propriateness of the bargaining unit. On June 17, in and about the vicinity of its Canby facility, Re- 1980, the Union filed a petition under Section 9(c) spondent, through Darrel Rybloom, promised its of the Act, in Case 36-RC-4348, seeking to repre- employees increased benefits if they voted against sent all meatcutters, wrappers, and meat depart- the Union. ment sanitation employees employed by the Em- (8) On or about November 18, 1980, in and about ployer at its Canby, Oregon, facility. On October the vicinity of its Canby facility, Respondent, 17, 1980, the Regional Director for Region 19 through Darrel Rybloom, threatened its employees issued a Supplemental Decision and Direction of with discharge by saying that, if the Union won Election providing for an election among the fol- the NLRB election, its employees might be "down lowing employees of the Respondent: the street." All meatcutters, meat department sanitation (9) On or about November 20, 1980, in and about employees, meat wrappers, and the head the vicinity of its Canby facility, Respondent, meatcutter/meat department manager em- through Darrell Rybloom, bribed its employee to ployed by the Respondent at its Canby, vote against the Union by giving its employee a Oregon, facility, but excluding all other em- promissory note, the conditions of which Respond- ployees, office clerical employees, professional ent fulfilled on or about December 18, 1980. employees, guards and supervisors as defined (10) On or about December 18, 1980, Respond- in the Act. ent gave pay raises to its employees employed in the bargaveining unit draisescr to its employees employed in Thereafter, Respondent timely filed a request for the b argain ing unit demployeesribed above, for the pur- review of the Supplemental Decision and Direction pose of persuading its employees to abandon their of Election. Respondent argued that the Canby of Election. Respondent argued that the Canby support of the Union. meat department employees were an accretion to (11) On or about January 6, 1981, in and about (1) On or about January 6, 1981, in and about the already existing unit of meat department em- the vicinity of its Woodburn facility, Respondent, through its manager and agent, Richard Thurman, ployees at Respondent's other eight stores. Re- spondent contended that the Canby store manager's threatened to discharge its employee because it be- lack of day-to-day supervision over its meat depart- lieved its employee gave a statement to the NLRB. t employees, the significant employee inter- ment employees, the significant employee inter- (12) By the above-described acts and conduct (12) By the above-described acts and conduct change among Respondent's stores, and the interest Respondent has engaged in and is engaging in a of the union representative for the eight-store unit course of conduct precluding the holding of a fair in representing the Canby employees rebutted the rerun election among the employees. presumption of single-store unit appropriateness. (13) The unfair labor practices described are so By telegram dated November 13, 1980, the Board serious and substantial in character and nature as to denied Respondent's request for review.2 Respond- warrant the entry of a remedial order requiring Re- ent has presented no further evidence that would spondent, as of November 18, 1980, to recognize warrant reconsideration of that decision. The unit and bargain with the Union as the exclusive collec- is appropriate as found by the Regional Director. tive-bargaining representative of its employees in the unit described above. ' Rules and Regulations of the Board, Sec. 102.20, Series 8, as amend- (14) By the acts and conduct described above, ed; Jerry C Wilson, et al., d/b/a Wilson d& Sons, 193 NLRB 350 (1971), and cases cited therein. In view of its stipulation, Respondent admits that Respondent has interfered with, restrained, and co- at all times since May 21, 1980, the Union has been designated and select- erced, and is interfering with, restraining, and co- ed by the majority of employees in the unit as their exclusive representa- ercing employees in the exercise of the rights guar- tive. Respondent also does not deny the allegation that, by its conduct, it has precluded the holding of a fair rerun election among the employees anteed them in Section 7 of the Act, and Respond- in that unit. ent thereby has been engaging in unfair labor prac- 2 An election was conducted on November 21, 1980, among the em- tices affecting commerce within the meaning of ployees of the described unit. The Union failed to obtain a majority of votes cast. The tally showed one for, and one against, the Petitioner, Section 8(a)(1) and Section 2(6) and (7) of the Act. with no challenged ballots. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well settled that in the absence of newly dis- III. THE UNFAIR LABOR PRACTICES covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- The ()() Viotions leging a violation of Section 8(a)(l) is not entitled Respondent has admitted, and we have found as to relitigate issues which were or could have been true, the unfair labor practices alleged in the com- litigated in a prior representation proceeding. 3 plaint. Accordingly, we find Respondent has en- All issues, including the unit determination, gaged in, and is engaging in, unfair labor practices raised by Respondent in this proceeding were or within the meaning of Section 8(a)(1) of the Act. could have been litigated in the prior representa- tion proceeding, and Respondent does not offer to IV. THE EFFECT OF THE UNFAIR LABOR adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that The activities of Respondent, set forth in section any special circumstances exist herein which would III, above, occurring in connection with its oper- require the Board to reexamine the decision made ations described in section I, above, have a close, in the representation proceeding. We therefore find intimate, and substantial relationship to trade, traf- that Respondent has not raised any issue which is fic, and commerce among the several States and properly litigable in this unfair labor practice pro- tend to lead to labor disputes burdening and ob- ceeding. Accordingly, we grant the Motion for structing commerce and the free flow of com- Summary Judgment. merce. On the basis of the entire record, the Board makes the following: Having found that Respondent has engaged in FINDINGS OF FACT and is engaging in unfair labor practices within the I. THE BUSINESS OF RESPONDENT meaning of Section 8(a)(l) of the Act, we shall order that it cease and desist therefrom. Respondent is an Oregon corporation engaged in The parties have stipulated that as a matter of the operation of nine retail stores in northwestern law a bargaining order is the appropriate remedy. Oregon. The facilities in Canby and Woodburn are We agree. the only locations involved in this proceeding. First, the unit involved here is small. The tally of During the past 12 months, a representative period, ballots shows approximately three eligible voters. Respondent, in the course of its business oper- Experience has shown that an employer's unlawful ations, had gross sales of goods and services valued conduct is magnified when it is directed at a small in excess of $500,000. In that time Respondent also number of employees. Second, the unlawful acts of purchased and caused to be transferred and deliv- interrogation, bribery, threat of discharge, promise ered to its facilities within the State of Oregon of increased benefits, and the instruction not to join goods and materials valued in excess of $50,000 di- the Union, detailed above, were committed by rectly from sources outside the State, or from sup- General Manager Darrel Rybloom, who was pliers within the State which in turn obtained such clothed with at least the apparent authority to goods and materials directly from sources outside carry out his threats. Third, the traditional remedy the State. of a cease-and-desist order, notice posting, and a We find, on the basis of the foregoing, that Re- rerun election would not erase the effects of Re- spondent is, and has been at all times material spondent's unlawful post-election pay raises. These herein, an employer engaged in commerce within unit employees would not be likely to miss the in- the meaning of Section 2(6) and (7) of the Act, and ference that the source of benefits so conferred is that it will effectuate the policies of the Act to also the source from which all future benefits must assert jurisdiction herein. flow. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964). For these reasons we find that II. THE LABOR ORGANIZATION INVOLVED the possibility of ensuring a fair election through United Food & Commercial Workers Union traditional remedies is slight, and that employee sentiment, as expressed on May 21, 1980, is better Local No. 143-A, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. Gissel Packing Co., Inc., 395 U.S. 575 (1969). We therefore shall order that Respondent, upon a See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); request, bargain with the Union as the exclusive Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). representative of all employees in the appropriate ROTH'S IGA FOODLINER, INC. 135 unit, and, if an understanding is reached, embody (g) Threatening to discharge its employees for such understanding in a signed agreement. offering statements to the Board. The Board, upon the basis of the foregoing facts (h) In any other manner interfering with, re- and the entire record, makes the following: straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. CONCLUSIONS OF LAW 2. Take the following affirmative action which 1. Roth's IGA Foodliner, Inc., is an employer the Board finds will effectuate the policies of the engaged in commerce within the meaning of Sec- Act: tion 2(6) and (7) of the Act. (a) Upon request, bargain with the above-named 2. United Food & Commercial Workers Union labor organization as the exclusive representative Local No. 143-A, AFL-CIO, is a labor organiza- of all employees in the aforesaid appropriate unit tion within the meaning of Section 2(5) of the Act. with respect to rates of pay, wages, hours, and 3. All meatcutters, meat department sanitation other terms and conditions of employment and, if employees, meat wrappers, and the head an understanding is reached, embody such under- meatcutter/meat department manager employed by standing in a signed agreement. the Employer at its Canby, Oregon, facility but ex- (b) Post at its Canby and Woodburn, Oregon, cluding all other employees, office clerical employ- facilities copies of the attached notice marked "Ap- ees, professional employees, guards and supervisors pendix."5 Copies of said notice, on forms provided as defined in the Act, constitute a unit appropriate by the Regional Director for Region 19, after for the purpose of collective bargaining within the being duly signed by Respondent's representative, meaning of Section 9(a) of the Act. shall be posted by Respondent immediately upon 5. By the acts and conduct described in the receipt thereof, and be maintained by it for 60 con- ruling above, Respondent has interfered with, re- secutive days thereafter, in conspicuous places, in- strained, and coerced, and is interfering with, re- cluding all places where notices to employees are straining, and coercing employees in the exercise of customarily posted. Reasonable steps shall be taken the rights guaranteed them in Section 7 of the Act, by Respondent to ensure that said notices are not and thereby has engaged in and is engaging in altered, defaced, or covered by any other material. unfair labor practices within the meaning of Sec- (c) Notify the Regional Director for Region 19, tion 8(a)(1) of the Act. in writing, within 20 days from the date of this 6. The aforesaid unfair labor practices are unfair Order, what steps Respondent has taken to comply labor practices affecting commerce within the herewith. meaning of Section 2(6) and (7) of the Act. m 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 Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Pursuant to Section 10(c) of the National Labor Order of the National Labor Relations Board." Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, APPENDIX Roth's IGA Foodliner, Inc., Silverton, Oregon, its officers, agents, successors, and assigns, shall: NOTICE TO EMPLOYEES 1. Cease and desist from: POSTED BY ORDER OF THE (a) Instructing its employees not to join the NATIONAL LABOR RELATIONS BOARD Union upon transfer to its Canby facility. An Agency of the United States Government (b) Interrogating its employees concerning how they would vote in any Board election. The National Labor Relations Act gives em- (c) Promising its employees increases in benefits ployees the following rights: if they would vote against the Union in any Board election. To engage in self-organization (d) Threatening its employees with discharge To form, join, or assist any union based on a union victory in any Board election. To bargain collectively through repre- (e) Bribing its employees to influence their votes sentatives of their own choice in any Board election. To engage in activities together for the (f) Granting any further pay raises or increases in purpose of collective bargaining or other benefits without bargaining with the Union. 4 mutual aid or protection To refrain from the exercise of any or all 'This Order is not to be construed as requiring a rescission of the such activities. benefits granted subsequent to the election. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT instruct employees not to join your rights set forth above which are guaran- the Union upon transfer to our Canby facility. teed by the National Labor Relations Act. WE WILL NOT interrogate employees con- WE WILL, upon request, bargain with cerning how they would vote in any Board United Food & Commercial Workers Union election. Local No. 143-A, AFL-CIO, as the exclusive WE WILL NOT threaten employees with dis- representative of all employees in the bargain- charge in the event the Union wins any NLRB ing unit described below, with respect to rates election. of pay, wages, hours, and other terms and con- WE WILL NOT promise increased benefits to ditions of employment and, if an understanding employees in return for votes against the is reached, embody such understanding in a Union in any NLRB election. signed agreement. The bargaining unit is: WE WILL NOT bribe or attempt to bribe any All meatcutters, meat department sanitation employees to vote against the Union in any employees, meat wrappers, and the head NLRB election. meatcutter/meat department manager em- WE WILL NOT grant pay raises to employees ployed by the Employer at its Canby, to persuade them to abandon support of the Oregon, facility, but excluding all other em- Union. ployees, office clerical employees, profes- WE WILL NOT threaten to discharge employ- sional employees, guards and supervisors as ees for giving statements to the NLRB. defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of ROTH'S IGA FOODLINER, INC.