K-Mart Corp. d/b/a Super K-Mart Center

1 325 NLRB No. 27 1 323 NLRB No. 108 (April 29, 1997). 2 We grant the General Counsel’s unopposed motion to include an additional exhibit as an attachment to his Motion for Summary Judg- ment. 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. K Mart Corporation d/b/a Super K Mart Center (Broadview, Illinois) and United Food and Commercial Workers Union, Local 546, Char- tered by United Food and Commercial Work- ers International Union, AFL–CIO. Case 13– CA–36357 December 9, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND LIEBMAN Pursuant to a charge filed on September 3, 1997, the General Counsel of the National Labor Relations Board issued a complaint on October 7, 1997, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer- tification in Case 13–RC–19476. (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 com- plaint. On November 10, 1997, the General Counsel filed a Motion for Summary Judgment. On November 13, 1997, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed an opposition to the Motion for Summary Judg- ment and a response to the Notice to Show Cause. The Charging Party filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer, opposition, and response the Respond- ent admits its refusal to bargain, but attacks the valid- ity of the certification on the basis of the Board’s unit determination in the representation proceeding.1 Spe- cifically, the Respondent reasserts its contention that the unit described in the complaint and in the certifi- cation of representative is not an appropriate unit for purposes of collective bargaining. 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.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Broadview, Illi- nois, has been engaged in the operation of retail mer- chandise and grocery stores. During the past calendar year, the Respondent, in conducting its business oper- ations described above, derived gross revenues in ex- cess of $500,000, and purchased and received at its Broadview, Illinois facility, goods valued at more than $10,000 directly from points outside the State of Illi- nois. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 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 16, 1997, the Union was certified on August 4, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time meat cutters, and perishable service associates in the meat/seafood department of the Employer at its facility currently located in Broadview, Illinois, but, excluding all office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since August 6, 1997, the Union has requested the Respondent to bargain, and, since August 11, 1997, the Respondent has refused. We find that this refusal con- stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. VerDate 08-MAY-96 10:01 Dec 16, 1997 Jkt 000000 PO 00000 Frm 00001 Fmt 0610 Sfmt 0610 O:\GPOBV\V325.027 nlrb01 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 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.’’ CONCLUSIONS OF LAW By refusing on and after August 11, 1997, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 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, K Mart Corporation d/b/a Super K Mart Center, Broadview, 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 546, Chartered by Unit- ed Food and Commercial Workers International Union, AFL–CIO, as the exclusive bargaining representative 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, and perishable service associates in the meat/seafood department of the Employer at its facility currently located in Broadview, Illinois, but, excluding all office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Broadview, Illinois, copies of the at- tached notice marked ‘‘Appendix.’’3 Copies of the no- tice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent 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 no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since August 11, 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. December 9, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Wilma B. Liebman, 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 546, Chartered by United Food and Commercial Workers International VerDate 08-MAY-96 10:01 Dec 16, 1997 Jkt 000000 PO 00000 Frm 00002 Fmt 0610 Sfmt 0610 O:\GPOBV\V325.027 nlrb01 3 SUPER K MART CENTER Union, AFL–CIO, as the exclusive representative 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: All full-time and regular part-time meat cutters, and perishable service associates in the meat/seafood department of the Employer at its facility currently located in Broadview, Illinois, but, excluding all office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act, and all other employees. K MART CORPORATION D/B/A SUPER K MART CENTER (BROADVIEW, ILLINOIS) VerDate 08-MAY-96 10:01 Dec 16, 1997 Jkt 000000 PO 00000 Frm 00003 Fmt 0610 Sfmt 0610 O:\GPOBV\V325.027 nlrb01 VerDate 08-MAY-96 10:01 Dec 16, 1997 Jkt 000000 PO 00000 Frm 00004 Fmt 0610 Sfmt 0610 O:\GPOBV\V325.027 nlrb01 5 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 546, CHARTERED BY UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL–CIO, as the exclusive representative 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: All full-time and regular part-time meat cutters, and perishable service associates in the meat/ seafood department of the Employer at its facility currently located in Broadview, Illinois, but, excluding all office clerical employees, professional employees, guards and supervisors as de- fined in the Act, and all other employees. K MART CORPORATION D/B/A SUPER K MART CENTER (BROADVIEW, ILLINOIS) (Employer) Dated By (Representative) (Title) VerDate 08-MAY-96 10:01 Dec 16, 1997 Jkt 000000 PO 00000 Frm 00005 Fmt 7239 Sfmt 7239 O:\GPOBV\V325.027 nlrb01