Hit'N Run Foods Stores

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1277 (N.L.R.B. 1979)

HIT'N RUN FOODS STORES
Hit'N Run, Inc., d/b/a Hit'N Run Foods Stores and
Retail Clerks Union Local No. 35, chartered by
United Food and Commercial Workers Interna-
tional Union, AFL-CIO.' Case 14-CA-12355
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND MURPHY
Upon a charge filed on March 8, 1979, and an
amended charge filed on April 2, 1979, by Retail
Clerks Union Local No. 35, chartered by United
Food and Commercial Workers International Union,
AFL-CIO, herein called the Union, and duly served
on Hit'N Run, Inc., d/b/a Hit'N Run Foods Stores,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 14, issued a complaint on April 4,
1979, 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 com-
plaint alleges in substance that on February 16, 1979,
following a Board election in Case 14-RC-8205 2, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;3 and that, commencing
on or about March 16, 1979, and at all times there-
after, Respondent has refused, and continues 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
April 9, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint.
On July 17, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
' Effective June 7 1979, the Local Union's parent body. Retail Clerks
International Union, merged with the Amalgamated Meatcutters and
Butcher Workmen of North Amenca, forming the above-cited parent union.
2 The Board's Decision on Review and Direction of Election therein is
reported at 227 NLRB 1186 (1977).
3 Official notice is taken of the record in the representation proceeding.
Case 14-RC-8205, 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
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969); Interiype 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.
Judgment. Subsequently, on July 30, 1979, 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. Respondent thereafter filed a response in
opposition to the Order transferring proceeding to the
Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 in op-
position to the order transferring proceeding to the
Board, Respondent admits certain factual allegations
of the complaint but asserts that there are disputes as
to material facts which "have not been litigated in a
proceeding affording Respondent a chance to cross-
examine."
Respondent further asserts, in its brief in opposi-
tion to the order transferring this proceeding to the
Board, that there is no evidence to indicate that Hit'N
Run, Inc., is a legal successor to Razco, Inc., for pur-
poses of certification of a representative, that there is
no evidence that Local 35 is a legal successor, for
purposes of representation, to Local 435, and that,
therefore, the Board should vacate its order transfer-
ring proceeding to the Board and remand this matter
to Region 14 for hearing. Counsel for the General
Counsel, on the other hand, argues that there are no
issues of fact in this proceeding which would necessi-
tate or justify a hearing, and that there are no litiga-
ble matters warranting a hearing because all issues
concerning the Union's certification were litigated
and determined in the underlying representation case.
We agree with the General Counsel.
A review of the record, including that in the repre-
sentation proceeding, Case 14-RC-8205, indicates
that the Union won the election conducted on Febru-
ary 8, 1979.4 The tally of ballots in the February 8
' The Board issued its Decision on Review and Direction of Election in
Case 14 RC-8205 on January 18, 1977 (227 NLRB 1186.) On July 20. 1976,
the Petitioner in Case 14 RC 8205 had filed unfair labor practice charges in
Case 14 CA 9494, alleging that the Employer therein had engaged in cer-
tain conduct violative of Sec. 8(aX I) and (3) of the Act. On January 25. 1977.
the Petitioner rescinded its previously filed request to proceed, and the repre-
sentation case was postponed pending investigation and disposition of the
charge in Case 14-CA-9494. On August 26, 1977. the Board issued its Deci-
sion and Order in the unfair labor practice proceeding (231 NLRB 660). On
December 21, 1978, the parties were advised that the Order of the Board had
been satisfactorily complied with and Case 14 CA-9494 was closed. There-
upon, the processing of Case 14-RC 8205 was resumed, and, on January 4,
1979, the Regional Director for Region 14 issued a Supplemental Decision
Amending Decision on Review and Direction of Election in Case 14-RC-
(Continued)
245 NLRB No. 164
1277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election showed that of 13 valid ballots cast, 12 were
for, and I against, the Union. No objections to the
election or to conduct affecting the results of the elec-
tion were filed within the time provided therefor. On
February 16, 1979, the Regional Director for Region
14 issued a Certification of Representative to Retail
Clerks Union Local 435, chartered by Retail Clerks
International Association, AFL-CIO, as the exclusive
representative of all the employees in the appropriate
unit.
On March 12, 1979, Retail Clerks Union Local 35
filed an unfair labor practice charge in the instant
proceeding, alleging that Respondent had engaged in
certain conduct in violation of Section 8(a)(5) of the
Act, with respect to the employees and the collective-
bargaining unit involved herein. On April 6, 1979, the
Regional Director issued an Order To Show Cause as
to what appropriate action should be taken concern-
ing the outstanding certification of representative. On
May 8, 1979, the Regional Director issued his Third
Supplemental Decision and Amendment of Certifica-
tion in Case 14-RC-8205. In that decision, the Re-
gional Director noted that the investigation of the un-
fair labor practice charges in Case 14-CA-12355
disclosed evidence that, subsequent to the filing of the
petition in Case 14-RC-8205, and on about January
1, 1978, Local 435 had merged with Local 35, that the
merged Local was granted a charter by the Interna-
tional, and that as a consequence the original peti-
tioner "no longer exists under its previous designa-
tion."
The Regional Director, having caused a full and
complete investigation to be made concerning the
merger of Local 435 with Local 35, and its effect, if
8205. On January 10. 1979, the Acting Regional Director issued a Second
Amended Supplemental Decision and Order. noting that Razco. Inc., d/b/a
Hit'N Run Food Stores had been replaced by a separate corporation. Hit'N
Run, Inc., d/b/a Hit'N Run Food Stores on July 1, 1977. The Acting Re-
gional Director took notice that on June 13, 1978, the Regional Director had
approved a stipulation for settlement of backpay liability in Cases 14 CA-
9417 and 14-CA-9494, and that the stipulation joined Hit'N Run, Inc.,
d/b/a Hit'N Run Food Stores as a party-respondent, and designated it
"Hit'N Run, Inc., successor Employer." The Acting Regional Director fur-
ther took notice that in course of the compliance investigation in Cases 14-
CA-9417 and 14-CA 9494, evidence was adduced that Hit'N Run, Inc., a
newly formed corporation, on July 1, 1977, leased the premises of Razco,
Inc., purchased its inventories, and assumed uninterrupted operations of the
five retail facilities formerly operated by Razco, Inc., including the facility
involved herein, located in Wood River, Illinois. The Acting Regional Direc-
tor therefore ordered that the Supplemental Decision issued on January 4,
1979, be further amended by substituting the name "Hit'N Run, Inc., d/b/a
Hit'N Run Food Stores," in place of "Razco, Inc., d/b/a Hit'N Run Food
Stores," wherever the latter name appeared in the Supplemental Decision
Amending Decision on Review and Direction of Election. As correctly noted
by the General Counsel here, the Employer did not respond to the Order To
Show Cause, dated December 21, 1978, nor was there a request for review
filed of either the Supplemental Decision Amending Decision on Review and
Direction of Election, or the Second Amended Supplemental Decision and
Order, challenging either the appropriateness of the single-store facility pre-
viously found by the Board or the change in the designation of the Em-
ployer.
any, on the outcome of the election conducted on
February 8, 1979, found that Charles Tosh, president
of Local 35, was president of Local 435 prior to the
merger of the two Locals, and that, during 1977, the
respective executive boards of the two Locals, with
the approval of the International Association's pres-
ident, met in joint session and agreed to a merger
proposal to be presented to the respective member-
ships. Members of the respective Locals were advised
in meetings and by letters of the proposed merger,
and in their respective special meetings the dues-pay-
ing members of the two locals voted in favor of the
merger. It was approved by the International Associ-
ation, and a charter issued on January , 1978, to the
merged organization, which was given the designa-
tion of Local 35 because Local 35 was the older or-
ganization. The full executive boards from the respec-
tive Locals were combined to form the executive
board for the merged Local; the president of Local
435 became the president of the merged Local; the
president of Local 435 became the president of the
merged Local; the president of the merged Local; the
president of Local 35 became the secretary-treasurer
of the merged Local; and all funds from Local 435
and Local 35 were intermingled to form the treasury
of the merged Local. Office locations of former Local
435 were retained, whereas the former office location
of Local 35 was closed. Further, after processing of
the representation case was resumed and an election
scheduled for February 8, 1979, Tosh sent letters on
January 24 and February 2, 1979, respectively, to all
employees whose names and addresses appeared on
the list of eligible employees furnished by the Em-
ployer for the payroll period ending December 31,
1978. Both letters appeared on Local 35 letterhead,
and, in the January 24 letter, employees were advised
in relevant part, "You are probably aware by now
that the National Labor Relations Board will be con-
ducting an election in the store you are employed to
see if you want to be represented by Retail Clerks
Local Union No. 35." Local 35's president, Tosh,
stated that in response to the Union's letters, all but
one or two of the eligible employees attended one of
the two meetings held at the Union's Wood River
offices on January 29, and that all but two or three
eligible employees attended one of the two meetings
held at the Union's Wood River offices on February
7. The Wood River offices are plainly identified, with
a window sign approximately 30 inches in diameter
designating the Union as Local 35, and the new Local
35 charter, dated January 1, 1978, is framed and
mounted next to the front office door used by employ-
ees. Tosh stated, also, that he was not aware at the
times of the meetings that the notice of election and
the ballots in Case 14-RC-8205 contained the Local
435 designation rather than Local 35, and that there
1278
HIT'N RUN FOODS STORES
was no mention during the meetings with the employ-
ees of the merger between Local 435 and Local 35.
The Regional Director's investigation further dis-
closed that the entire employee complement, which
voted in the election on February 8, 1979, com-
menced employment with the Employer after Local
435 had merged with Local 35.
The Regional Director concluded, in view of the
foregoing, including the substantial continuity be-
tween the leadership and representation of Local 435
and that of the merged Local 35, that (I) upon re-
sumption of the representative case, Local 35 had
campaigned among the employees involved; (2) Local
35's campaign literature advised employees that they
would be voting for or against representation by Lo-
cal 35, which is a subordinate Local of the same In-
ternational as former Local 435, with offices in the
same location; (3) only one labor organization ap-
peared on the ballot: (4) the employer's observer
signed the certification on conduct of election; (5) the
Employer did not file objections to the election or to
conduct of the election; and (6) notwithstanding that
eligible employees did not vote on the merger, that
Local 435, the petitioning Union, was properly suc-
ceeded by Local 35 at a time when the voting eligibil-
ity of employees was not known. Goodfriend Western
Corp., d/bla Wrangler Ranch, 232 NLRB 527 (1977).
The Regional Director further found that despite the
designation of Local 435 on the ballot at a time when
Local 435 no longer existed with such designation,
the eligible voters were not confused by the designa-
tion of Local 435 rather than Local 35 as the Union
on the ballot.
The Regional Director therefore issued an Order
Amending the Certification of Representative by sub-
stituting for the name "Retail Clerks Union Local
435, chartered by Retail Clerks International Associ-
ation, AFL-CIO," the name "Retail Clerks Union,
Local 35, chartered by Retail Clerks International
Association, AFL-CIO," as the certified bargaining
representative. On July 3, 1979, the Board issued a
telegraphic Order denying the Employer's request for
review of the Regional Director's Third Supplemental
Decision and Amendment of Certification as raising
no issues warranting review.5
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging a
violation of Section 8(aX5) is not entitled to relitigate
While the Board acknowledges the inadvertent designation of Local 435
on the election notice and ballots as inopportune, we agree fully with the
Regional Director's conclusions that the petitioning Union was properly suc-
ceeded by Local 35: that the eligible voters were not confused by the desig-
nation of Local 435 on the election notice or ballot; and that the Amend-
ment of Certification was in all respects proper.
issues which were or could have been litigated in a
prior representation proceeding.6
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, 7 and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly 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
I. THE BUSINESS OF RESPONDENT
Hit'N Run, Inc., d/b/a Hit'N Run Food Stores, is
a corporation authorized to do business under the
laws of the State of Illinois. It maintains its principal
office and place of business at 1600 Bozza Street, Al-
ton, Illinois, and maintains stores at Alton, East Al-
ton, Granite City, and Wood River, Illinois, where it
is engaged in the retail sale and distribution of food
and related products. During the year ending March
30, 1979, which period is representative of its opera-
tions during all times material herein, Respondent, in
the course and conduct of its business operations at
its several Illinois locations, received from the sale of
food and related products gross revenues in excess of
$500,000, and purchased and caused to be trans-
ported to its stores goods and materials valued in ex-
cess of $50,000, of which goods and materials in ex-
cess of $50,000 were transported to its stores in
Illinois directly from points located outside the State
of Illinois.
We find, on the basis of the foregoing, that Respon-
dent 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 INVOI.VEI)
Retail Clerks Union Local No. 35, chartered by
United Food and Commercial Workers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
6 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board. Secs. 102 67(f) and 102.69(c).
7 See fns. 4 and 5, supra.
1279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II1. THE UNFAIR LABOR PRACTICES labor disputes burdening and obstructing commerce
and the free flow of commerce.
A. The Representation Proceeding
V. THE REMEDY
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 employees employed at Respondent's 900
East Edwardsville Rd., Wood River, Illinois, fa-
cility, excluding restaurant employees, guards
and supervisors as defined in the Act.
2. The certification
On February 8, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 14, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on February 16, 1979, and the Union con-
tinues 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 March 1, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
March 16, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that Respondent has, since
March 16, 1979, 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, Respondent has en-
gaged 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 operations
described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 Con-
struction 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:
CONCI.USIONS OF LAW
1. Hit'N Run, Inc., d/b/a Hit'N Run Food Stores,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks Union Local No. 35, chartered by
United Food and Commercial Workers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed at Respondent's 900
East Edwardsville Road, Wood River, Illinois, facil-
ity, excluding restaurant employees, guards, and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since February 16, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 16, 1979, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
1280
HIT'N RUN FOODS STORES
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 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 Rela-
tions Board hereby orders that the Respondent,
Hit'N Run, Inc., d/b/a Hit'N Run Food Stores,
Wood River, Illinois, 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 con-
ditions of employment with Retail Clerks Union Lo-
cal No. 35, chartered by United Food and Commer-
cial Workers International Union, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All employees employed at Respondent's 900
East Edwardsville Road, Wood River, Illinois,
facility, excluding restaurant employees, 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its 900 East Edwardsville Road, Wood
River, Illinois, facility copies of the attached notice
marked "Appendix."8 Copies of said notice, on forms
8 In the event that this Order is enforced by a Judgment of a Unted States
Court of Appeals, the words in the notice reading "Posted by Order of the
provided by the Regional Director for Region 14, af-
ter being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be 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 Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Union Local No. 35, chartered by United
Food and Commercial Workers International
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 de-
scribed 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 bargaining unit is:
All employees employed at our 900 East
Edwardsville Road, Wood River, Illinois, fa-
cility, excluding restaurant employees, guards
and supervisors as defined in the Act.
HIT'N RUN, INC. D/B/A HIT'N RUN FOODS
STORES
1281