Fred Meyer Stores, Inc.

FRED MEYER STORES, INC. 355 NLRB No. 30 179 Fred Meyer Stores, Inc. and United Food and Com- mercial Workers Local 367, affiliated with United Food and Commercial Workers Interna- tional Union. Case 19–CA–32311 May 7, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on January 14, 2010, the General Counsel issued the complaint on February 1, 2010, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 19–RC–15194. (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 deny- ing in part the allegations in the complaint, and asserting affirmative defenses. On February 18, 2010, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On February 22, 2010, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondent filed a response. The General Counsel filed a reply to the Respondent’s response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent has effectively admitted its refusal to bargain,1 but contests the validity of the certification 1 The Respondent asserts that even though it is not obligated to do so, it has been bargaining in good faith with the Union, as evidenced by its willingness to meet and confer and its exchange of proposals. The Respondent’s asserted “bargaining,” however, has consisted of reject- ing a proposal made by the Union, proposing to hold the Union’s in- formation request in abeyance, and proposing to delay bargaining until the current contract expires or the question of the Board’s statutory authority to issue decisions is resolved by the Supreme Court. Further, the Respondent has consistently stated that it does not have any legal obligation to bargain with the Union. In these circumstances, it is clear that the Respondent’s purported bargaining, which is largely premised on a future event, is conditional. Contrary to the Respondent, such conduct does not constitute bargaining in good faith. See, e.g., Special- ized Living Center, 286 NLRB 511 (1987), enfd. 879 F.2d 1442 (7th Cir. 1989) (employer’s offer to “meet and confer” was conditional and did not constitute offer to bargain in good faith where employer also stated it had no legal obligation to recognize or bargain with the union); Henry M. Hald High School Assn., 213 NLRB 463 (1974), enfd. mem. based on its argument that the two-member Board lacked the statutory authority to issue its Order denying the Re- spondent’s request for review of the Regional Director’s decision and direction of election in the underlying rep- resentation proceeding.2 All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a State of Ohio corporation with an office and place of business in Tacoma, Washington (the University Place Store), is engaged in the retail grocery business. During the 12-month period preceding the issuance of the complaint, a representative period, the Respondent, in conducting its business operations described above, de- rived gross revenues in excess of $500,000, and pur- 559 F.2d 1204 (2d Cir. 1977) (finding a failure to bargain in good faith based in part on the respondent’s request to postpone bargaining until the issuance of a pending state court decision). 2 The Respondent asserts in its response that it could not have previ- ously raised its objection to the Board’s authority to issue a decision in the representation proceeding, and that therefore the issue is properly raised at this time and can be litigated in this unfair labor practice pro- ceeding. Further, in its answer, the Respondent states that it intends to preserve the arguments it raised in the representation proceeding until the status of the two-member Board is conclusively determined. We find no merit in the procedural aspect of the Respondent’s argument because nothing precluded the Respondent from raising this issue in the representation proceedings. We also find without merit the substantive aspect of its argument. See, e.g., ADF, Inc., 355 NLRB No. 14, slip op. at 1 fn. 1 In addition, the Respondent’s answer specifically denies, in part, pars. 6(b) and (c) of the complaint, which allege that the Union was certified to bargain on behalf of the voting group of Playland Depart- ment employees at the Respondent’s University Place retail store in Pierce County, Tacoma, Washington. The unit issue, however, was litigated and resolved in the underlying representation proceeding. Accordingly, to the extent that the Respondent’s denials of these allega- tions can be construed as an attack on the unit, they do not raise any litigable issues. See Alta Vista Regional Hospital, 352 NLRB 809, 809 fn. 3 (2008). 3 The Respondent’s motion to dismiss the complaint, its request for a hearing before an administrative law judge, and its request for oral argument are therefore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180 chased and received at its facility goods valued in excess of $50,000 directly from points outside the State of Washington. 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, United Food and Commercial Workers Local 367, affiliated with United Food and Commercial Workers International Union, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification The following employees of the Respondent (the unit) constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed in [the Respondent’s] Com- bination Food/Non-Food Checkstand Departments in Pierce County and all future Combination Food/Non- Food Checkstand Departments in Pierce County . . . excluding the Department Manager and two Assistant Department Managers. Since at least 1990, and at all material times, based on Section 9(a) of the Act, the Union has been the desig- nated exclusive collective-bargaining representative of the unit and, since then, has been recognized as such by the Respondent. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective from May 6, 2007, to May 1, 2010. On June 17, 2009, in Case 19–RC–15194, a majority of all regular full-time and regular part-time employees employed in the Playland Department of the Respon- dent’s University Place store, in a self-determination election, designated and selected the Union as their rep- resentative for the purposes of collective bargaining with the Respondent, to be included in the unit. On December 8, 2009, in Case 19–RC–15194, the Re- gional Director issued a corrected certification of repre- sentative certifying that the Union may bargain for the voting group of Playland Department employees de- scribed above as part of the unit of employees that it cur- rently represents. The following employees of the Respondent (the ex- panded unit) constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All employees employed in [the Respondent’s] Com- bination Food/Non-Food Checkstand Departments in Pierce County and all future Combination Food/Non- Food Checkstand Departments in Pierce County and all regular full-time and regular part-time employees em- ployed in the Playland Department of [the Respon- dent’s] University Place store, located in Tacoma, Washington; excluding the Department Manager and two Assistant Department Managers in Pierce County and all guards and supervisors in the University Place store as defined by the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees in the ex- panded unit under Section 9(a) of the Act. B. Refusal to Bargain On October 26, and on December 3 and 8, 2009, the Union requested, in writing, that the Respondent meet and bargain collectively with it as the exclusive collec- tive-bargaining representative of the Playland Depart- ment employees at its University Place Store. On No- vember 5, 2009, and January 7, 2010, the Respondent, in writing, informed the Union that it would not bargain unconditionally with it as the exclusive collective- bargaining representative of the Playland Department employees at its University Place store. We find that this failure and refusal constitutes an unlawful failure and refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing since November 5, 2009, to bargain with the Union as the exclusive collective-bargaining repre- sentative of employees in the Playland Department at its University Place Store, 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. REMEDY Having found that the Respondent has violated Section 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 understanding in a signed agreement. ORDER The National Labor Relations Board orders that the Respondent, Fred Meyer Stores, Inc., Tacoma, Washing- ton, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with United Food and Commercial Workers Local 367, affili- ated with United Food and Commercial Workers Interna- tional Union, as the exclusive bargaining representative FRED MEYER STORES 181 of the employees employed by the Respondent in the Playland Department at its University Place Store. (b) In any like or related manner interfering with, re- straining, 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 employed in the Playland Department of its University Place, Tacoma, Washington store as part of the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: All employees employed in [the Respondent’s] Com- bination Food/Non-Food Checkstand Departments in Pierce County and all future Combination Food/Non- Food Checkstand Departments in Pierce County and all regular full-time and regular part-time employees em- ployed in the Playland Department of [the Respon- dent’s] University Place store, located in Tacoma, Washington; excluding the Department Manager and two Assistant Department Managers in Pierce County and all guards and supervisors in the University Place store as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Tacoma, Washington, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily 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 proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 5, 2009. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- 4 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with United Food and Commercial Workers Local 367, affiliated with United Food and Commercial Workers International Union, as the exclusive collective- bargaining representative of our employees in the Play- land Department of our University Place retail store lo- cated in Tacoma, Washington. 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 Play- land Department of our University Place, Tacoma, Washington store as part of following bargaining unit: All employees employed in our Combination Food/Non-Food Checkstand Departments in Pierce County and all future Combination Food/Non-Food Checkstand Departments in Pierce County and all regu- lar full-time and regular part-time employees employed in the Playland Department of our University Place store, located in Tacoma, Washington; excluding the Department Manager and two Assistant Department Managers in Pierce County and all guards and supervi- sors in the University Place store as defined by the Act. FRED MEYERS STORES, INC.