Clover Food Market, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1972

200 N.L.R.B. 241 (N.L.R.B. 1972)

CLOVER FOOD MARKET 241
Clover Food Market, Inc. and Retail Clerks Local
1360, Retail Clerks and Managers Union, aff/w
Retail Clerks International Association, AFL-
CIO. Case 4-CA-6074
November 13, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on July 10, 1972, by Retail
Clerks Local 1360, Retail Clerks and Managers
Union, aff/w Retail Clerks International Associa-
tion, AFL-CIO, herein called the Union, and duly
served on Clover Food Market, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 4, issued a complaint on July 25, 1972,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge' were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 29,
1972, following a Board election in Case 4-RC-9230
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 2 and that,
commencing on or about June 5, 1972, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively ,with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On August 2, 1972, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On August 16, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 22,
1972, the Board issued an order transferring the
proceeding; to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause, called Statement in Opposition.
Pursuant' to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, Respondent contends, in
effect, that the unit is inappropriate, and that the
Board agent in charge of the polling improperly
closed the polls early, thereby depriving an eligible
employee, whose vote could have affected the results
of the election, of the opportunity to vote. Conse-
quently, it argues that the subsequent certification of
the Union was improper and invalid. The General
Counsel contends that, because the Respondent is
attempting to relitigate issues which were litigated
and decided in the earlier representation proceeding,
and which therefore may not be relitigated here, he is
entitled to summary judgment. We agree.
The record in Case 4-RC-9230 reflects that on
August 9, 1971, the Regional Director issued a
Decision and Direction of Election finding appropri-
ate a unit excluding delicatessen employees. On
August 27, 1971, Respondent filed a Request for
Review with the Board on the grounds that the
exclusion of delicatessen employees made the unit
inappropriate. By telegraphic order dated October 4,
1971, the Board denied the Respondent's Request for
Review as it raised no substantial issues warranting
review.
On October 19, 1971, an election was conducted
with the result that 21 votes were cast for, and 19
votes against, the Union, with 5 challenged ballots,
determinative of the election. Subsequently, Respon-
dent filed timely objections to conduct affecting the
results of the election.
Following investigation, the Regional Director on
December 7, 1971, issued a Supplemental Decision
on Challenged Ballots sustaining three of the
challenges and overruling the challenges with respect
to the remaining two ballots. The Respondent filed a
timely Request for Review of the Regional Director's
supplemental decision. On March 13, 1972, the
Board issued its Decision on Review finding,
contrary to the Regional Director, that the challenge
to one of the remaining two ballots should be
sustained, and directing that the remaining ballot be
opened and counted and that the case be remanded
to the Regional Director for further action on
i The title of "Trial Examiner" was changed to "Administrative Law LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4, 1968);
Judge" effective August 19, 1972. Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269
2 Official notice is taken of the record in the representation proceeding, F Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d
Case 4-RC-92^0, as the term "record" is defined in Secs. 102.68 and 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
102k9(f) of the Board's Rules and Regulations, Series 8, as amended. See
200 NLRB No. 17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's objections. A revised tally of ballots
disclosed a final result of 21 votes for the Union, and
20 votes against.
On March 29, after investigation, the Regional
Director issued a Supplemental Decision on Objec-
tions and Certification dismissing Respondent's
objections, and certifying the Union in the appropri-
ate unit. In its objections, Respondent had alleged,
inter alia, that the Board agent's watch was approxi-
mately 3 minutes fast, and that he had improperly
closed the polls early, thereby depriving an eligible
employee of the opportunity to vote, where his vote
could have affected the results of the election. The
Regional Director had found that the Respondent's
counsel had, in effect, acquiesc 1 in the use of the
Board agent's watch as the official timepiece. On
April 27, 1972, Respondent filed a Request for
Review raising again this eligibility issue, and by
telegraphic order dated May 17, 1972, the Board
denied the Respondent's request as it raised no
substantial issues warranting review.
In its answer to the complaint herein, and its
response to the Notice To Show Cause, Respondent
again raises the unit and eligibility issues which had
been litigated and determined in the representation
proceeding.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding .3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under the laws
of the State of New Jersey, with its principal office
and place of business at Cherry Hill, New Jersey,
where it is engaged in the business of retail food
sales.
Respondent's annual sales are valued in excess of
$500,000, and Respondent's annual purchases from
outside the State of New Jersey are valued in excess
of $50,000.
We find, on the basis of the foregoing, that
Respondent is, 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, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Local 1360 , Retail Clerks and Man-
agers Union, aff/w Retail Clerks International As-
sociation , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All employees, excluding meat and delicatessen
department employees, produce department man-
ager, bakery department manager, grocery de-
partment manager, front end manager, head
cashier, guards and supervisors as defined in the
Act.
2. The certification
On October 19, 1971, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 4, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 29, 1972, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 1, 1972, and at
all times thereafter, the Union has requested the
3 See Pittsburgh Plate Glass Co. v. NLRB., 313 US. 146, 162 (1941);
Rules and Regulations of the Board, Secs 102.67(f) and 102.69(c).
CLOVER FOOD MARKET
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about June 5, 1972, and continuing at
all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since June 5, 1972, and at all times thereafter, refused
to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226 , 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419 , 1421 , enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
243
1. Clover Food Market , Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks Local 1360 , Retail Clerks and
Managers Union , aff/w Retail Clerks International
Association , AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. All employees, excluding meat and delicatessen
department employees , produce department manag-
er, bakery department manager, grocery department
manager, front end manager , head cashier, guards
and supervisors, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since March 29, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about June 5 , 1972, and at all
times thereafter , to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit , Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with , restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8 (a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Clover Food Market, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Retail Clerks Local
1360, Retail Clerks and Managers Union, aff/w
Retail Clerks International Association, AFL-CIO,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All employees, excluding meat and delicatessen
department employees, produce department man-
244 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
ager, bakery department manager, grocery de-
partment manager, front end manager, head
cashier, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Cherry Hill, New Jersey, retail food
outlet copies of the attached notice marked "Appen-
dix."4 Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said 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 date of this Order,
what steps have been taken to comply herewith.
4 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
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."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Retail
Clerks Local 1360, Retail Clerks and Managers
Union, aff/w Retail Clerks International Associa-
tion , AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union , as the exclusive representa-
tive of all employees in the bargaining unit
described below , with respect to rates of pay,
wages, hours, and other terms and conditions of
employment , and, if an understanding is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All employees , excluding meat and delicates-
sen department employees, produce depart-
ment manager, bakery department manager,
grocery department manager, front end
manager , head cashier, guards and supervi-
sors as defined in the Act.
CLOVER FOOD MARKET,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1700 Bankers Securities Building,
Walnut and Juniper Streets, Philadelphia, Pennsylva-
nia 19107, Telephone 215-597-7601.