Burlington Food Store, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1965

155 N.L.R.B. 1192 (N.L.R.B. 1965)

1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., or any other employer engaged in commerce or in an industry affecting
commerce , except Leon S . Kulp, Inc., to engage in a strike or a refusal in the
course of their employment to perform any services , where an object thereof
is to force or require General Plumbing & Heating Company, Inc., or any other
employer, to cease doing business with Leon S. Kulp, Inc.
WE WILL NOT threaten , coerce, or restrain General Plumbing & Heating
Company, Inc., H. B. Alexander & Son, Inc., Potteiger Co., Inc., Coopersmith
Bros., Inc., and Carl Twist Electrical Supply Co., or any other person engaged
in commerce or an industry affecting commerce , where an object thereof is to
force or require General Plumbing & Heating Company, Inc., or any other
employer, to cease doing business with Leon S. Kulp, Inc.
BUILDING AND CONSTRUCTION TRADES COUNCIL
OF READING AND BERI5 COUNTY,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 597-7601.
Burlington Food Store, Inc., and Delaware Food Store, Inc. and
Locals 1358, 1360 , 1371, 1262, 1349, Retail Clerks International
Association , AFL-CIO. Case No. 4-CA-3682. November 21!,
1965
DECISION AND ORDER
On September 28, 1965, Trial Examiner Sidney Lindner issued his
Decision in the above-entitled case finding that Burlington Food
Store, Inc., and Delaware Food Store, Inc., a single Employer,
together herein called the Respondent or Employer, had engaged in.
and was engaging in certain, unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief. The General Counsel filed an answering brief and
the Charging Party filed a statement in support of the Trial Exam-
iner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner, includ-
ing his granting of the General Counsel's motion for judgment on the
pleadings , and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
155 NLRB No. 114.
BURLINGTON FOOD STORE, INC., ETC. 1193
In this case,- and hereby =adopts the. fundings, conclusions, and recom-
mendations of the. Trial Examiner.1
[The Board adopted the. Trial Examiner's Recommended Order.]
1 On April 16, 1965, the Board denied the Employer 's request for review of the Regional
Director 's Decision in Case No . 4-RC-6152, the representation proceeding which underlies
the instant case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On a charge duly filed June 16, 1965, by Locals 1358, 1360, 1371, 1262, 1349,
Retail Clerks International Association, AFL-CIO, herein called the Union,; the
General Counsel of the National Labor Relations Board, by the Regional Director for
Region 4, issued a complaint, together with a notice of hearing dated June 29, 1965,
copies of which were duly served upon the parties. The complaint alleges, in sub-
stance, that Burlington Food Store, Inc., and Delaware Food Store, Inc., together
herein called the Respondent and/or Employer, refused to bargain with the Union in
violation of Section 8 (a) (5) of the Act.
Respondent's answer denied certain allegations of the complaint, including those
relating to the appropriateness of the bargaining unit, and the commission by Respond-
ent of any unfair labor practices within the meaning of the Act. As an affirmative
defense the Respondent alleged that the unit does not constitute a unit appropriate for
collective-bargaining purposes because it includes store managers who are supervisors
and, as such, are excluded from the provisions of the Act. On August 19, 1965, the
General Counsel filed and served a motion for summary judgment. In support thereof
he contended that: (1) the affirmative defense pleaded by the Respondent had been
raised and litigated in the underlying representation proceeding, Case No. 4-RC-6152,
and the Respondent may not raise these issues in the complaint proceeding before a'
Trial Examiner, who is bound by the Board's decision; (2) a,letter signed by Respond-
ent's attorney acknowledging receipt of a letter forwarded by the Union requesting
bargaining, stating that Respondent would not meet with the Union until the validity
of the Board's certification of the Unicn was determined by higher authority, such
letter establishing the validity of the allegations of the complaint; and (3) the allega-
tions of the complaint must be found to be true and a Trial Examiner should make
findings -of fact and conclusions based thereon.
On August 23, 1965, Trial Examiner Sidney Lindner issued and caused to be served
on all parties, an order directing the Respondent to show cause, on or before Septem-
ber 7, 1965, why the issues raised by the pleadings herein should not be resolved
without further hearing. The order also directed Respondent to set forth the `evi-
dence, if any, newly discovered or not, available at the time of the representation
proceeding, which it would offer at any hearing held in the complaint proceeding, and
to submit its position and arguments on any legal issues.
Subsequent to the issuance of the order to show cause, dated August 23, 1965, I
received Respondent's memorandum, in which Respondent waived its right to submit
any new evidence, and set forth its positions on the basis of the pleadings.
It appearing, therefore, that there are no' issues of fact herein requiring a hearing
before a Trial Examiner for the purpose of issuing a Decision, I deem this case sub-
mitted for decision on the pleadings, and the record in Case No. 4-RC-6152, and I
make the following:
Rulings on the Motion
The issue raised by Respondent's answer in the case is whether the unit described
in the complaint, for the employees in which the Union has been certified as the
collective-bargaining representative, is an appropriate unit for such purposes within
the meaning of Section 9(b) of the Act.
The appropriateness of the unit litigated by the parties and decided by the Board
in the underlying representation proceeding may not be relitigated-absent any newly
discovered evidence-in the case. As the Supreme Court stated in Pittsburgh Plate
Glass Company v. N.L.R.B., 313 U.S. 146, 148: "The unit proceeding and this com-
plaint on unfair labor practices are really one." Accordingly, the decision of the
Board, which is binding, upon me, is dispositive of this question.]
1 Metropolitan Life Insurance Company, 141 NLRB 337, enfd. 828 F. 2d 820 (C.A. 3) ;
Metropolitan Life Insurance Company, 141 NLRB 1074, enfd. 330 F. 2d 62 (C.A.. 6) ;
Esquire, Inc. ( Coronet Instructional Films Division ), 109 NLRB 530, 538-539, enfd. 222
F. 2d 253 (C.A. 7).
1194 DECISIONS OF NATIONAL LABOR RELATIO- S BOARD
It is apparent from the foregoing that there are no factual issues litigable for me.
Accordingly, the General Counsel's motion is granted on the basis of the entire
record herein, including the representation case, and I hereby make the following--.
FINDINGS OF FACT
1. JURISDICTION
The Respondent, Burlington, is a New Jersey corporation and Respondent, Dela-
ware, is a Delaware corporation and the two are- an affiliated business with- common
officers, ownership, directors, and operators, and constitute a single integrated busi-
ness enterprise. They are engaged in the retail-sale of food products at various
locations in the States of New Jersey and Delaware. During the past 12 months,
Respondent sold and distributed products valued in excess of $500,000, and pur-
chased products from suppliers located outside the States of New Jersey and Delaware
valued in excess of $50,000. 1 find that the Respondent is now and has been at all
times material herein, an employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
U. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR - PRACTICES
A. The representation proceeding
1. The unit
All employees including store managers, regular and part-time employees employed
at the Employer 's retail stores located in the States of New Jersey and Delaware,
excluding office clerical employees , guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
2. The certification
On or about May 11, 1965, a majority of the employees of Respondent in said
unit, in a secret election conducted under the supervision of the Regional Director for
Region 4 , designated and selected the Union as their representative for the purpose of-
collective bargaining with Respondent , and on May 19, 1965 , said Regional Director
certified the Union as the collective -bargaining representative of the employees in said
unit and the Union continues to be such representative. -
3. The request to bargain and the Respondent's refusal
On or about May 28, 1965, and continuing thereafter, the Union has requested
the Respondent to bargain collectively with it as the exclusive collective-bargaining
representative of all the employees in the above-described appropriate unit. On-or,
about- June 17, 1965, by letter of; that date, Respondent did refuse, and continues to
refuse, to recognize and bargain collectively with the Union as the exclusive collective
bargaining representative of all the employees in said unit. By this refusal, I find
Respondent violated Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and-
substantial relation 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 the Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and -desist therefrom and -take
affirmative action designed to effectuate the policies of the Act.
BURLINGTON FOOD STORE , INC., ETC. 1195
Upon the foregoing findings of fact and the entire record in the case, including the
representation proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. All employees of the Respondent-including store managers and regular part-time
employees employed at the Employer's retail stores located in the States of New
Jersey and Delaware, excluding office clerical employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act. - -
4. Since on or about May 11, 1965, the Union has been, and is, the exclusive
representative for the purposes of collective bargaining of the employees in the unit
described above.
5. By refusing to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit on June 17, 1965, and thereafter, the
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.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in this case and in the representation proceeding, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I recommend that the Respondent,
Burlington Food Store, Inc., and Delaware Food Store, Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Locals 1358; 1360, 1371, 1262, 1349,
Retail Clerks International Association, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following unit. -
All employees including store managers, regular and part-time employees employed
at the Employer's retail stores located in the States of New Jersey and Delaware,
excluding office clerical employees, guards, and supervisors as defined in the Act.
(b) Interfering with the efforts of Locals 1358, 1360, 1371, 1262, 1349, Retail
Clerks International Association, AFL-CIO, to negotiate for or represent the employ-
ees in the said appropriate unit as the exclusive bargaining agent.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with Locals 1358, 1360, 1371, 1262, 1349,
Retail Clerks International Association, AFL-CIO, as the exclusive representative of
all the employees in the appropriate unit' described above, with respect to rates of pay,
wages, hours of employment, and other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement.
(b) ^'ost at its New Jersey and Delaware stores, copies of the attached notice
marked "Appendix. " 2 Copies of said notice, to be furnished by the Regional
Director for Region 4, shall, after being duly signed by Respondent's representative,
be posted by it immediately upon receipt thereof, and maintained by it for 60 consecu-
tive 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 notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in writing, within 20 days from
the receipt of this Decision and Recommended Order, what steps the Respondent
has taken to comply herewith .3
2In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the Botice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
31n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES - - `
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor_Rela-
tions Act, as amended, we-hereby notify our employees that:
WE :WILL NOT refuse to bargain collectively with Locals 1358, 1360, 1371,
1262, 1349, Retail Clerks•International Association, AFL-CIO, as the exclusive
representative of all the employees in the -bargaining unit described below.
WE WILL NOT interfere with the effort of Locals 1358, 1360, 1371,.-1262, 1349,
Retail -Clerks International Association, AFL-CIO, to negotiate- foror represent
as exclusive bargaining agent all of the employees in the bargaining unit described
below. -
WE WILL, upon request, bargain_ with the above-named union, as exclusive
representative of all the employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and other conditions of
employment, and if an understanding is reached, embody such an understanding
in a signed agreement.
The bargaining unit is:
All employees including store managers, regular and part-time employees
employed at the Employer's retail stores located in the States of New jersey
and Delaware, excluding all office clerical employees, guards, and super-
visors as defined in the Act. -
BURLINGTON FOOD STORES,. INC., and
DELAWARE FOOD STORES, INC.,
-Employer.
Slated------------------- By------------------------------- -- ----------
(Representative) - L(Title)
This notice- must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by-any other material. -
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut and_Juhiper Streets, Philadelphia, Pennsylvania,
Telephone No. 597-7601. - -
Kentucky Skilled Craft Guild and Kenneth Richar d Lehring,
Charging Party and -International Union of Electrical Workers,
Local Union No. 761 , AFL-CIO, Party to the Dispute and Gen-
eral Electric Company, Party to the Dispute. Care No. 9-CD-
73. November 26,1965
DECISION AND ORDER QUASHING
NOTICE OF HEARING
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following charges filed by Kenneth Lehr-
ing, -a' individual.- The charge states that Kentucky Skilled Craft
Guild, herein called KSCG, has violated Section 8(b) (4) (i) and
(ii) (D)- of the Act by engaging in a strike against General Electric
Company, herein called the Company, for the purpose of forcing o
requiring General Electric to assign certain work to employees rep-
resented by KSCG, - rather than to employees represented by Inter-
155 NLRB No. 116. -