Fred���s Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 138 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 22
138
Fred’s Inc. and Southern Regional Joint Board, UNITE,
AFL–CIO, CLC. Case 26–CA–21528
September 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
This is a refusal-to-bargain case in which the Respondent
is contesting the Union’s certification as bargaining repre-
sentative in the underlying representation proceeding. Pur-
suant to a charge and an amended charge filed by the Union
on January 16 and June 1, 2004, respectively, the General
Counsel issued the complaint on June 1, 2004, 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 26–RC–8316. (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 June 21, 2004, the General Counsel filed a Motion for
Summary Judgment. On June 23, 2004, the Board issued an
order transferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be granted. On
July 13, 2004, the Respondent filed a cross-motion for
summary judgment and opposition to the General Counsel’s
Motion for Summary Judgment. On July 30, 2004, the Un-
ion filed an answer to the Employer’s cross -motion for
summary judgment and reply to Employer’s opposition. On
August 3, 2004, the General Counsel filed a response to the
Respondent’s opposition and cross-motion for summary
judgment.
The National Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer, the Respondent denies that it has refused to
recognize and bargain with the Union, but avers, as affirma-
tive defenses, that the certification of the Union was im-
proper, that the election was not conducted properly, and
that the results of the election are invalid.
In its cross-motion for summary judgment and opposition
to the General Counsel’s motion, the Respondent argues
that it has engaged in bargaining with representatives of the
Union since March 2004, and has reached an agreement
which provides that the Respondent recognizes the Union as
the collective-bargaining representative for the unit employ-
ees. The Respondent contends that the complaint allega-
tions that it has failed to recognize and bargain with the
Union are untrue, and that it is entitled to summary judg-
ment and to have the complaint dismissed in its entirety.
We disagree.
The Board has consistently found that where an employer
continues to challenge the validity of a union’s certification,
it is effectively refusing to bargain with the union, even
where it has stated that it is willing to engage in negotia-
tions.1 Thus, an employer “may negotiate with, or chal-
lenge the certification of, the Union; it may not do both at
once.” Terrace Gardens Plaza. v. NLRB, 91 F.3d 222, 225
(D.C. Cir. 1996). In Terrace Gardens, the court further
noted that when an “employer reserves the right (i.e., im-
plicitly threatens) to challenge the union’s certification in
the court of appeals, it is trying to avoid the necessity to
choose between the alternatives it has under the statute. As
we explained above, the employer must either bargain un-
conditionally, or, if it wants to contest the union’s right to
represent the employees, refuse to bargain and defend itself
in an unfair labor practice proceeding.” Id. at 226.
As noted above, the Respondent’s answer to the com-
plaint denies that the Respondent has failed to recognize and
bargain with the Union, but “avers that the election was not
conducted properly and that the results of the election are
invalid . . . [and] avers that the certification was not proper.”
In addition, the Respondent has clearly indicated in its
communications with the General Counsel and the Union its
intention to test the Union’s certification.2 Further, although

1 See, e.g., Overland Transportation System, 323 NLRB 491 (1997),
enfd. 187 F.3d 637 (6th Cir. 1999) (Board found refusal-to-bargain
violation despite letter to union that employer’s attorney was available
to meet for negotiations on behalf of one respondent; statement that he
was not authorized to negotiate for another respondent found to be a
single employer was indication that the union’s certification was at
issue); Terrace Gardens Plaza, 315 NLRB 749 (1994), enfd. 91 F.3d
222 (D.C. Cir. 1996) (Board found refusal-to-bargain violation despite
employer’s contention that its letter to union offering to meet and bar-
gain merely reserved its right to seek judicial review of the union’s
certification); Biewer Wisconsin Sawmill, Inc., 306 NLRB 732 (1992)
(despite respondent’s answer denying that it refused to bargain with
union, its admission that it intended to test the union’s certification was
sufficient to establish a violation).
2 The General Counsel attached to its Motion for Summary Judg-
ment letters dated March 15, 2004, from the Respondent to the Re-
gional Director and the Union. The letter to the Region states that the
Respondent “has decided to test UNITE’s certification” in the represen-
tation case by “technically refusing to bargain with UNITE.” The letter
to the Union confirms its intention to test the Union’s certification,
stating: “Even though we have initiated the process of testing certifica-
tion, we still intend to meet with you . . . to see if we can resolve any
differences between the parties and reach an agreement satisfactory to
both sides. You have indicated that it is UNITE’s position that if we
continue to meet with you and the others, UNITE will take the position
that we will have waived our right to test certification, and even though
we disagree with your position, we understand it.” In addition, the
General Counsel has attached a letter dated March 26, 2004, in which
the Respondent informed the Union that “even though we have agreed
to meet with you and your committee on Tuesday, Fred’s still plans to
move forward with our plans to test UNITE’s certification by techni-
FRED’S INC. 139
it claims that it has not violated the Act because it has met
and bargained with the Union, the Respondent has never
disavowed its intention to test the Union’s certification.
Accordingly, we find that the Respondent has never uncon-
ditionally recognized the Union or engaged in good-faith
bargaining.
All representation issues raised by the Respondent were
or could have been litigated in the prior representation pro-
ceeding. The Respondent does not offer to adduce at a hear-
ing any newly discovered and previously unavailable evi-
dence, nor does it allege any special circumstances 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 unfair labor practice proceeding.
See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941). Accordingly, we grant the Motion for Summary
Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation with
an office and place of business in Memphis, Tennessee, has
been engaged in warehousing and the wholesale distribution
of consumer goods. During the 12-month period ending
May 31, 2004, the Respondent, in conducting its business
operations described above, sold and shipped from its
Memphis facility goods valued in excess of $50,000 directly
to points located outside the State of Tennessee, and pur-
chased and received at its Memphis facility goods valued in
excess of $50,000 directly from points located outside the
State of Tennessee. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and that Southern Regional
Joint Board, UNITE, AFL–CIO, CLC is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 29, 2002, the Union was
certified on November 20, 2003, as the exclusive collective-
bargaining representative of the employees in the following
appropriate unit:
INCLUDED: All warehouse and maintenance employees
including department heads, warehouse clerical em-
ployees, spotters who do not drive, transportation

cally refusing bargain.” The Respondent does not dispute the authen-
ticity of these letters.
3 The Respondent’s cross-motion for summary judgment is therefore
denied.
clerks, and employees employed in the following
named departments: POS maintenance, warehouse
maintenance, facility maintenance, picking, receiving
and stocking, loading, shipping, and inventory control
employed by Respondent.
EXCLUDED: All other employees (including spotters
who drive, drivers, and employees in the following de-
partments: accounting, advertising, engineering, fi-
nance, human resources, information systems, insur-
ance, legal, merchandising, payroll, pharmacy, printing,
purchasing and real estate), guards, and supervisors as
defined in the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
Since November 24, 2003, the Union has requested the
Respondent to bargain, and, since November 25, 2003, the
Respondent has refused to do so. We find that the Respon-
dent has thereby unlawfully failed and refused to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after November 25, 2003, to bargain
with the Union as the exclusive collective-bargaining repre-
sentative of employees in the appropriate unit, the Respon-
dent has engaged 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 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 un-
derstanding is reached, to embody the understanding in a
signed agreement.
To ensure that the employees are accorded the services of
their selected bargaining agent for the period provided by
the law, we shall construe the initial period of the certifica-
tion as beginning the date the Respondent begins to bargain
in good faith with the Union. Mar-Jac Poultry Co., 136
NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379
U.S. 817 (1964); Burnett Construction Co., 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the Re-
spondent, Fred’s, Inc., Memphis, Tennessee, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD140
(a) Refusing to bargain with Southern Regional Joint
Board, UNITE, AFL–CIO, CLC, as the exclusive bargain-
ing representative of the employees in the bargaining unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit on terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement:
INCLUDED: All warehouse and maintenance employ-
ees including department heads, warehouse clerical
employees, spotters who do not drive, transportation
clerks, and employees employed in the following
named departments: POS maintenance, warehouse
maintenance, facility maintenance, picking, receiving
and stocking, loading, shipping, and inventory control
employed by Respondent.
EXCLUDED: All other employees (including spotters
who drive, drivers, and employees in the following de-
partments: accounting, advertising, engineering, fi-
nance, human resources, information systems, insur-
ance, legal, merchandising, payroll, pharmacy, printing,
purchasing and real estate), guards, and supervisors as
defined in the Act.
(b) Within 14 days after service by the Region, post at its
facility in Memphis, Tennessee, copies of the attached no-
tice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 26 after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 Respondent has gone out of business
or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since No-
vember 25, 2003.

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.”
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting 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
violated 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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain with Southern Regional
Joint Board, UNITE, AFL–CIO, CLC, as the exclusive rep-
resentative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed 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 condi-
tions of employment for our employees in the following
bargaining unit:
INCLUDED: All warehouse and maintenance employ-
ees including department heads, warehouse clerical
employees, spotters who do not drive, transportation
clerks, and employees employed in the following
named departments: POS maintenance, warehouse
maintenance, facility maintenance, picking, receiving
and stocking, loading, shipping, and inventory control
employed by us.
EXCLUDED: All other employees (including spotters
who drive, drivers, and employees in the following de-
partments: accounting, advertising, engineering, fi-
nance, human resources, information systems, insur-
ance, legal, merchandising, payroll, pharmacy, printing,
purchasing and real estate), guards, and supervisors as
defined in the Act.
FRED’S, INC.