Daylight Grocery Company, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1981

256 N.L.R.B. 881 (N.L.R.B. 1981)

DAYIi(HT (GROCERY COMPANY. INC 881
Daylight Grocery Company, Inc. and Retail Store
Employees Union, Local 441, affiliated with
United Food & Commercial Workers Interna-
tional Union, AFL-CIO. Case 12-CA-9520
June 24, 1981
DECISION AND ORDER
Upon a charge filed on January 20, 1981, by
Retail Store Employees Union, Local 441, affiliated
with United Food & Commercial Workers Interna-
tional Union, AFL-CIO, herein called the Union,
and duly served on Daylight Grocery Company,
Inc., herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 12, issued a com-
plaint on February 17, 1981, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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
and complaint and notice of hearing before an ad-
ministrative 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 October 21,
1980, following a Board election in Case 12-RC-
5852, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about November 11, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On March 2, 1981,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On March 23, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 27,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause, and a supplemental brief, and the General
i Official notice is taken of the record in the representation proceed-
ing, Case 12-RC-5852, as the term "record" is defined in Sees 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems, Inc.. 66 NLRB 938 (1967), enfd. 388 F2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir 1969); Intertype Co. v. Penello. 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
256 NLRB No. 112
Counsel filed in opposition to Respondent's supple-
mental brief.
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, Respondent in
effect attacks the certification of the Union as the
bargaining representative of the employees in the
unit found appropriate by asserting that the unit
found appropriate by the Board is inappropriate
and that the Regional Director and the Board
made erroneous findings of fact and law concern-
ing objections to conduct of the election.
Our review of the record, including that in Case
12-RC-5852, shows that, following a hearing in
that representation proceeding, the Regional Direc-
tor for Region 12 issued a Decision and Direction
of Election and an Erratum in which he ordered an
election among the employees in the unit he found
appropriate. Thereafter, the Board denied the Em-
ployer's request for review of the Regional Direc-
tor's Decision. Subsequently, following an investi-
gation of objections to the election and challenged
ballots, the Regional Director issued his Supple-
mental Decision and Order on Objections and
Challenged Ballots. Thereafter, the Board denied
the Employer's request for review of the Regional
Director's Supplemental Decision and, on October
21, 1980, the Regional Director certified the Union
as the collective-bargaining representative of the
employees in the unit found appropriate.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.2
In its answer to the complaint and its briefs to
the Board in response to the Notice To Show
Cause, Respondent asserts that the Regional Direc-
tor's adverse interim rulings in the representation
case "could have been influenced by pecuniary in-
terests" created by the Senior Executive Service
incentive program established by the Civil Service
Reform Act of 1978, 5 U.S.C. 2301, et seq. In sup-
port of this contention, Respondent submitted doc-
uments including one provided to the regional di-
rectors by the then General Counsel dated May
1979, explaining the Performance Appraisal System
for regional directors under the Senior Executive
Service, and a July 1979 memo to his staff from the
Regional Director for Region 12 pertaining to the
2 See Pittsburgh Plaore G/ass Co. v .I.R B, 113 U.S 146, 162 (1941);
Rules and Regulations of the Board. Sec, 102 67(f) and 102.h6
9
(c)
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handling of requests for extension of time to file
briefs. This latter memo relates information con-
cerning the availability to parties of means to
insure the timely receipt of transcripts from the re-
porting service, thus alleviating much of the need
for an extension of time for a party to file a brief.
Our review of the representation proceeding re-
veals that the Hearing Officer's and the Regional
Director's interim rulings were objected to in Re-
spondent's objections to the conduct of the election
and in its exceptions to the Regional Director's
Supplemental Decision. Specifically, Respondent
objected, as it does in this proceeding, to the Re-
gional Director's granting of a 3-day extension of
time for the filing of briefs rather than the 24-day
extension requested. Implicit in our denial of Re-
spondent's request for review of the Regional Di-
rector's Supplemental Decision was a determina-
tion that the Regional Director had not absued his
discretion in this matter.
In this proceeding, Respondent presents no new
evidence that the Regional Director abused his dis-
cretion, but merely presents the conjectural argu-
ment that the Regional Director's actions "could
have been influenced" by a desire for a monetary
reward for efficient performance in the handling of
litigation.
We note that the rapidity with which representa-
tion cases are processed is but one of the many fac-
tors considered under the Senior Executive Service
compensation plan, as are the quality of the Re-
gional Director's decisions, achievement of Agency
programs, and other matters which fall within his
responsibility. Further, as noted above, the Board,
the members of which are not in the Senior Execu-
tive Service, affirmed the actions of the Regional
Director in the representation proceeding based on
the evidence then presented.
Thus, all issues raised by Respondent in this pro-
ceeding were or could have been litigated in the
prior representation proceeding, and Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence of
probative value, nor does it allege that any special
circumstances exist herein which would require the
Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that Re-
spondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we 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 RESPONDENT
Respondent Daylight Grocery Company, Inc., is
a Florida corporation engaged in the operation of
retail grocery stores in Jacksonville, Florida.
During the 12-month period ending February 17,
1981, it received gross revenues in excess of
$500,000 from the operation of its stores and has
purchased and received at its Jacksonville, Florida,
stores, goods, supplies, and materials valued in
excess of $50,000 from suppliers located outside the
State of Florida.
We find, on the basis of the foregoing, that Re-
spondent 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 Store Employees Union, Local 441, affili-
ated with United Food and Commercial Workers
International Union, AFL-CIO, is a labor organi-
zation 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employ-
ees, including baggers, employed by Respond-
ent at its facilities located at 4714 Soutel
Avenue, 4045 Post Street, 3000 Moncrief
Road, and 1315 Kings Road, Jacksonville,
Florida; excluding all store managers, assistant
store managers, meat department employees,
produce department managers, stock manag-
ers. guards and supervisors as defined in the
Act.
2. The certification
On June 6, 1980, 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 12, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
DAYLIGHT GROCERY COMPANY, INC. 883
on October 21, 1980, 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 Ocotber 30, 1980, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about November 11, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
November 11, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Daylight Grocery Company, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 441, af-
filiated with United Food & Commercial Workers
International Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time employees,
including baggers, employed by Respondent at its
facilities located at 4714 Soutel Avenue, 4045 Post
Street, 3000 Moncrief Road, and 1315 Kings Road,
Jacksonville, Florida; excluding all store managers,
assistant store managers, meat department employ-
ees, produce department managers, stock managers,
guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since October 21, 1980, 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 November 11, 1980,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daylight Grocery Company, Inc., Jacksonville,
Florida, 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 Store Em-
ployees Union, Local 441, affiliated with United
Food & Commercial Workers International Union,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time employ-
ees, including baggers, employed by Respond-
ent at its facilities located at 4714 Soutel
Avenue, 4045 Post Street, 3000 Moncrief
Road, and 1315 Kings Road, Jacksonville,
Florida; excluding all store managers, assistant
store managers, meat department employees,
produce department managers, stock manag-
ers, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
Post at its Jacksonville, Florida, facilities at 4714
Soutel Avenue, 4045 Post Street, 3000 Moncrief
Road, and 1315 Kings Road copies of the attached
notice marked "Appendix."3 Copies of said notice,
on forms provided by the Regional Director for
Region 12 , after being duly signed by Respond-
ent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
3 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 ursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Store Employees Union, Local
441, affiliated with United Food & Commer-
cial Workers International Union, AFL-CIO,
as the exclusive representative of the employ-
ees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time employ-
ees, including baggers employed at by the
Respondent at its facilities located 4714
Soutel Avenue, 4045 Post Street, 3000 Mon-
crief Road, and 1315 Kings Road, Jackson-
ville, Flordia; excluding all store managers,
assistant store managers, meat department
employees, produce department managers,
stock managers, guards and supervisors as
defined in the Act.
DAYLIGHT GROCERY COMPANY