Super KMart

1 324 NLRB No. 62 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. KMart Corporation d/b/a Super KMart Center (Bradley, Illinois) and United Food and Com- mercial Workers Union, Local 1540, Chartered by the United Food and Commercial Workers International Union, AFL–CIO. Case 33–CA– 12286 September 11, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on June 30, 1997, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on July 9, 1997, alleging that the Respondent has violated Sec- tion 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain follow- ing the Union’s certification in Case 33–RC–4121 (aka Case 3–RC–19623). (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint. On August 1, 1997, the General Counsel filed a Mo- tion for Summary Judgment. On August 5, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On August 19, 1997, the Re- spondent filed a response. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain but attacks the validity of the certifi- cation on the basis of the Board’s unit determination in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Michigan corporation with an office and place of business in Bradley, Illinois, has been engaged in the operation of retail merchandise and grocery stores throughout the United States. During the calendar year ending Decem- ber 31, 1996, the Respondent, in conducting its busi- ness operations, derived gross revenues in excess of $500,000 and purchased and received at its Bradley, Il- linois facility goods valued in excess of $50,000 di- rectly from points outside the State of Illinois. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 14, 1997, the Union was certified on May 22, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full time and regular part time meat cutters, perishable service associates (PSAs) employed in the meat/seafood department, meat wrappers and seafood associates employed by the Employer at its store located at 990 North Kenzie, Bradley, Il- linois; but excluding all other employees, man- agers, office clericals, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About June 11, 1997, the Union requested the Re- spondent to bargain, and, since about June 17, 1997, the Respondent has failed and refused. We find that this failure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after June 17, 1997, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appro- priate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 If 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.’’ REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, KMart Corporation d/b/a Super KMart Center, Bradley, Illinois, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Food and Com- mercial Workers Union, Local 1540, Chartered by the United Food and Commercial Workers International Union, AFL–CIO as the exclusive bargaining rep- resentative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement: All full time and regular part time meat cutters, perishable service associates (PSAs) employed in the meat/seafood department, meat wrappers and seafood associates employed by the Employer at its store located at 990 North Kenzie, Bradley, Il- linois; but excluding all other employees, man- agers, office clericals, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Bradley, Illinois, copies of the attached notice marked ‘‘Appendix.’’1 Copies of the notice, on forms provided by the Regional Director for Region 33, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 30, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 11, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Food and Commercial Workers Union, Local 1540, Char- tered by the United Food and Commercial Workers International Union, AFL–CIO as the exclusive rep- resentative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: 3 SUPER KMART CENTER All full time and regular part time meat cutters, perishable service associates (PSAs) employed in the meat/seafood department, meat wrappers and seafood associates employed by us at our store lo- cated at 990 North Kenzie, Bradley, Illinois; but excluding all other employees, managers, office clericals, guards and supervisors as defined in the Act. KMART CORPORATION D/B/A SUPER KMART CENTER (BRADLEY, ILLINOIS)