Frank's Super Valu

National Labor Relations Board - Board Decisions

Apr 26, 1978

235 N.L.R.B. 1148 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Chillemi d/b/a Frank's Super Valu and Retail
Clerks Union Local No. 31, Retail Clerks Interna-
tional Union, AFL-CIO. Case 8-CA-11410
April 26, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on October 5, 1977, by Retail
Clerks Union Local No. 31, Retail Clerks Interna-
tional Union, AFL-CIO, herein called the Union,
and duly served on Frank Chillemi d/b/a Frank's
Super Valu, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 8, issued a com-
plaint and notice of hearing on October 31, 1977, and
an amendment to complaint on December 1, 1977,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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, amendment to 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 April 22, 1977,
following a Board election in Case 8-RC-10767, the
Union was duly certified by the Regional Director
for Region 8 as the exclusive collective-bargaining
representative of Respondent's employees in the unit
found appropriate; 1 that on September 14, 1977, the
Board affirmed the Certification of Representative,
and that, commencing on or about September 28,
1977, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On November 8, 1977,
and December 20, 1977, respectively, Respondent
filed its answer to the complaint and the amended
complaint, admitting in part, and denying in part, the
allegations therein set forth.
On January 5, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 18,
1977, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
' Official notice is taken of the record in the representation proceeding,
Case 8-RC-10767, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTVElectrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
235 NLRB No. 157
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted.
On February 6, 1978, Respondent filed a memo-
randum in opposition to motion and a response to
Notice To Show Cause.
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 and memorandum to the Board in
response to the Notice To Show Cause, Respondent
admits its refusal to bargain and its refusal to furnish
the Union with information relating to the wages and
fringe benefits of the employees in the appropriate
unit, as alleged in the complaint, but attacks the
Union's certification by objecting to the appropria-
teness of the unit for which the Union is certified, by
alleging that the representation petition was not
supported by a valid, untainted showing of interest,
and by contending that its night manager, John
Hickenbotham, was a supervisor within the meaning
of the Act and was therefore improperly permitted to
vote in the election.
As to the supervisory issue, Respondent alleges
that Hickenbotham solicited signatures of employees
on a substantial number of union authorization cards
during the Union's organizing drive, and that he used
his apparent authority to coerce unit employees into
signing authorization cards. Respondent contends
that it was not previously allowed to develop a record
(1) as to whether Hickenbotham induced and influ-
enced employees to vote for the Petitioner in the
election; (2) as to the impact on other employees of
his voting in the election; (3) as to whether his
participation in the election and the unit deprived the
Employer of its statutory right to determine its
management; (4) as to the extent his alleged subordi-
nates were coerced by threats of reprisals if they did
not vote for the Petitioner; (5) as to the extent they
were coerced when the Petitioner's agents allegedly
invaded Respondent's property en masse prior to and
on the day of the election; (6) as to the impact on the
election laboratory conditions of the alleged appear-
ance of an "X" in the "Yes" box on the official
election notice posted in the breakroom; and (7) as
to whether the alleged misrepresentation of wages
and other benefits, at a time when the Employer
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Folletr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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FRANK'S SUPER VALU
could not effectively respond thereto, destroyed the
laboratory conditions.
Review of the record herein and in Case 8-RC-
10767 reveals that a petition in that case was filed by
the Union on January 17, 1977, seeking, in sub-
stance, to represent all full-time and regular part-
time employees of Respondent at its Lexington,
Ohio, facility, including the night manager, but
excluding the owner-manager, assistant manager,
office clerical and professional employees, guards,
and supervisors as defined in the Act. At the hearing
on the petition, Respondent contended that John
Hickenbotham, the night manager, was a supervisor.
Following the hearing, the Regional Director issued
his Decision and Direction of Election on February
18, 1977, in which, inter alia, he directed an election
in the unit, which included Hickenbotham who, on
the basis of the record in that case, he found was not
a supervisor.
On March 1, 1977, Respondent filed a request for
review of the Regional Director's decision, attacking
his finding that Hickenbotham was not a supervisor.
On March 15, the Board denied the request, but
amended the Regional Director's decision to permit
Hickenbotham to vote subject to challenge.
On March 16, 1977, Respondent filed a motion
requesting the Board to reconsider its March 15
decision declining to consider Hickenbotham's su-
pervisory status at that time, and requesting that it
stay the election, contending that no valid election
could be held because of the allegedly tainted
showing of interest due to Hickenbotham's participa-
tion in the election. On March 17, 1977, the Board,
by telegraphic order, denied the motion and the
request as lacking in merit.
On March 17, 1977, an election was conducted in
the bargaining unit found appropriate, which the
Union won. On March 21, 1977, Respondent filed
timely objections to the election, contending that
Hickenbotham was a supervisor within the meaning
of the Act. Respondent contends that as a supervisor
Hickenbotham was improperly permitted to vote in
the election, that the conduct of the election, leading
to possible certification, thus deprived the Employer
of its statutory right to designate its management,
that the employees were thus unduly coerced in their
choice of bargaining representative, that they were
further coerced by an alleged invasion of Respon-
dent's property by the Petitioner's agents en masse;
that they were promised financial and other rewards
for supporting the Petitioner in the election, and that
the laboratory conditions were further hampered by
the alleged appearance of an "X" in the "Yes" box
2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Seca. 102.67(f and 102.69(c).
on the official notice of election posted in the
employee breakroom.
On April 22, 1977, following an investigation, the
Regional Director issued a Supplemental Decision
and Certification of Representative, finding all of the
objections without evidence to support them or
without merit and issued a Certification of Represen-
tative in behalf of the Union.
On May 4, 1977, Respondent filed a request for
review of the Supplemental Decision and Certifica-
tion and a motion to stay the certification. Thereaf-
ter, by telegraphic order of July 14, 1977, and
September 14, 1977, respectively, the Board denied
the request as lacking in merit and affirmed the
Regional Director's Supplemental Decision and Cer-
tification of Representative.
It thus appears that Respondent is attempting to
relitigate herein issues which were raised and decided
in the underlying representation case. It is well
settled that in the absence of newly discovered
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 proceed-
ing.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent did 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 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 RESPONDENT
Frank Chillemi, an individual, is an individual
proprietor doing business as Frank's Super Valu at
its principal place of business located at 280 East
Main Street, Lexington, Ohio, where it is engaged in
the retail sale of grocery and related items. Respon-
dent annually receives gross revenues valued in
excess of $500,000 and purchases and receives goods,
valued in excess of $50,000, at its Lexington facility
directly from points located outside the State of
Ohio.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Union Local No. 31, Retail Clerks
International Union, AFL-CIO, is a labor organiza-
tion 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 constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees of
Frank Chillemi d/b/a Frank's Super Valu, at its
Lexington, Ohio, grocery facility, including the
night manager, but excluding the owner-manager,
assistant manager, office clerical employees and
professional employees, guards, and supervisors
as defined in the Act.
2. The certification
On March 17, 1977, 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 8, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on April 22, 1977, 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 September 15, 1977, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit and to
furnish it, upon request, with information with
respect to the wages and fringe benefits of Respon-
dent's employees in the appropriate unit. Commenc-
ing on or about September 28, 1977, and continuing
at all times thereafter to date, 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 and to furnish it, upon request, with information
with respect to the wages and fringe benefits of
Respondent's employees in the appropriate unit.
Accordingly, we find that Respondent has, since on
or about September 28, 1977, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit, or to furnish the Union,
upon request, with information with respect to the
wages and fringe benefits of the employees in the
appropriate unit, and that, by such refusals, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) 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, traf-
fic, 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 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.
Further, we shall order that Respondent upon
request furnish the Union with information with
regard to the wages and fringe benefits of the
employees in the appropriate unit.
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 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
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FRANK'S SUPER VALU
CONCLUSIONS OF LAW
1. Frank Chillemi d/b/a Frank's Super Valu is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Clerks Union Local No. 31, Retail
Clerks International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time employees
of Frank Chillemi, d/b/a Frank's Super Valu, at its
Lexington, Ohio, grocery facility, including the night
manager, but excluding the owner-manager, assistant
manager, office clerical employees and professional
employees, guards, and supervisors as defined in the
act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since September 14, 1977, 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 September 28, 1977,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, and by
refusing to furnish the Union, upon request, informa-
tion with respect to wages and fringe benefits of
those employees, 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 refusals 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 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)( ) 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 the Respondent,
Frank Chillemi d/b/a Frank's Super Valu, Lexing-
ton, Ohio, his 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 Union
Local No. 31, Retail Clerks International Union,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time employees of
Frank Chillemi d/b/a Frank's Super Valu, at its
Lexington, Ohio, grocery facility, including the
night manager, but excluding the owner-manager,
assistant manager, office clerical employees and
professional employees, guards, and supervisors
as defined in the Act.
(b) Refusing to furnish the said Union, upon
request, information relating to the wages and fringe
benefits of all employees of Respondent in said unit.
(c) 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) Upon request, furnish the Union information
relating to the wages and fringe benefits of all
employees of Respondent in said unit.
(c) Post at its Lexington, Ohio, facility copies of the
attached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Retail
Clerks Union Local No. 31, Retail Clerks Interna-
tional Union, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining unit
described below.
I WILL NOT refuse to furnish the Union, upon
request, information relative to the wages and
fringe benefits of all employees in the unit
described below.
I WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
I WILL, upon request, bargain with the above-
named Union, as the exclusive representative 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 agreement. The bar-
gaining unit is:
All full-time and regular part-time employ-
ees of Frank Chillemi d/b/a Frank's Super
Valu, at its Lexington, Ohio, grocery facility,
including the night manager, but excluding
the owner-manager, assistant manager, of-
fice clerical employees and professional em-
ployees, guards, and supervisors as defined
in the Act.
I WILL, upon request, furnish the Union infor-
mation pertaining to the wages and fringe benefits
of all employees in the unit described above.
FRANK CHILLEMI D/B/A
FRANK'S SUPER VALU
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