J. F. Hink & Son

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1187 (N.L.R.B. 1980)

J F. HINK & S()N
J. F. Hink & Son and Retail Clerks Union Local
No. 870, United Food and Commercial Workers
Union, AFL-CIO. Case 32-CA-2723
September 30, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on May 7, 1980, by Retail
Clerks Union Local No. 870, United Food and
Commercial Workers Union, AFL-CIO, herein
called the Union, and duly served on J. F. Hink &
Son, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 32, issued a com-
plaint on May 29, 1980, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 23,
1980, following a Board election in Case 32-RC-
677, the Union was duly certified as the exclusive
collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;
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 June 9, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint, and on June 23, 1980, filed an
amended answer.
On June 23, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment 2 attaching various exhibits which
reveal that after the election in Case 32-RC-677
and the issuance therein of the Regional Director's
Report on Objections, the Board, sua sponte,
Official notice is taken of the record in the representation proceed-
ing, Case 32 RC-677, 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
LT 7 Electrosvtems. Inc., 166 NLRB 938 (19h7), enfd 388 F,2d 683 (4th
Cir. 1968); Golden .4ge Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969),; nlrtype C Penello. 269 F Supp 573
(DC.Va. 1967); fIollerr Corp, 164 NL.RB 378 (1967), enfd. 397 F2d 91
(7th Cir 1968) Sec 9(d) of the NLRA, as amended
2 Counsel for the General Counsel also filed a rhemorandum in support
of its Motion for Summary Judgment and on July 24. 1980, the Charging
Party also filed with the Board a memorandum of points and authorities
in support of summary judgment
252 NLRB No. 166
changed the name of Petitioner, Retail Clerks
Union Local 870, Retail Clerks International
Union, AFL-CIO, to the name of the Union to re-
flect the merger on or about June 7, 1979, of Retail
Clerks International Union, herein also called the
Retail Clerks, and Amalgamated Meatcutters and
Butcher Workmen of North America, herein called
the Meatcutters, to create the United Food and
Commercial Workers Union, herein called Food
Workers. Subsequently, on July 1, 1980, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter on
July 21, 1980, filed a response to the Notice To
Show Cause3 and counsel for the General Counsel
filed a response thereto. 4
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 amended answer to the complaint, Respon-
dent denies, inter alia, that the Union is a labor or-
ganization and that it was validly certified, and af-
firmatively pleads, inter alia, that there was no
hearing to accord it due process and thus no evi-
dence that there was a merger between the Retail
Clerks and the Meatcutters or as to whether the
Union is the same as the Petitioner. Respondent
further contends that the election in Case 32-RC-
677 should be set aside for the reasons stated in Re-
spondent's exceptions to the Hearing Officer's
Report on Objections.
Counsel for the General Counsel contends that
Respondent's answer and amended answers to the
complaint are improper attempts to relitigate issues
previously disposed of by the Board. We agree.
A review of the entire record, including that in
Case 32-RC-677, reveals that a petition was filed
by Petitioner on April 17, 1979, seeking an election
among employees at Respondent's retail store at
Shattuck Avenue and Kittredge in Berkeley, Cali-
fornia. Pursuant to a Stipulation for Certification
Upon Consent Election approved by the Regional
Director on May 14, 1979, a secret-ballot election
was conducted on June 21, 1979, which resulted in
:' In its response Respondent noted, inter liau, that the General Coun-
sel's Motion for Summary Judgment did not refer to Respondent's
amended answer
' In his response the General Counsel concedes hat Respondent filed
an amended answer but states that it was received after he had filed his
Motion for Summary Judgment
I)lSIO)NS ()1 NA I I()NAI. IABI)R RA I IO()NS II)ARI)
a tally of 36 votes for, and 30 against, Petitioner,
with 2 challenged ballots. Respondent timely filed
objections; the Regional Director on July 31, 1979,
issued his report recommending that Objections 1
and 5 be remanded for hearing and that all other
objections be overruled. On November 6, 1979, the
Board, finding no merit to Respondent's excep-
tions, issued a Decision and Order5 adopting the
Regional Director's recommendations, directing a
hearing on Objections I and 5, and sua sponte
amending the name of the Petitioner to reflect the
change resulting from the merging of Retail Clerks
and the Meatcutters and to read "Retail Clerks
Union Local 870, United Food and Commercial
Workers International Union, AFL-CIO." On No-
vember 13, 1979, Respondent moved the Board to
reconsider its sua sponte amendment6 on the
grounds that (I) no motion was ever made by Peti-
tioner to amend its name; (2) no evidence has ever
been presented that it merged with Food Workers;
(3) no evidence has ever been presented that its
membership, let alone Respondent's employees,
voted to merge with the Food Workers, that the
officers are the same or that the same business
office, treasury, and contracts have been retained;
and (4) that if a motion to change Petitioner's name
were made, Respondent would be entitled to an
evidentiary hearing and would request the Board
to require a new showing of interest or dismiss the
petition; and (5) the Board's action denied Respon-
dent due process of law. On February 1, 1980, the
Board issued an Order denying the motion on the
grounds that it was lacking in merit and presented
nothing not previously considered.
Meanwhile, the Hearing Officer, in his report
issued January 9, 1980, recommended that Objec-
tion I (alleging that the Union engaged in material
misrepresentations) and Objection 5 (alleging that
the Union offered to waive initiation fees and dues
for employees if they would vote for it) be over-
ruled. Respondent filed exceptions only to the
Hearing Officer's recommendations regarding Ob-
jection 1. On April 23, 1980, the Board adopted the
Hearing Officer's findings and recommendations
and certified the Union as the exclusive bargaining
representative of the employees in the stipulated
appropriate unit. 7
Respondent admits the allegations of the com-
plaint that the Union requested it to bargain in the
r Not reported in volumes of Board decisions.
On" () November 10, 1979, Ihe. Union filed an ppositlon to Respon-
den s motiln for reconsideration, i which it. inter alta. argued that the
motion should be denied, relying on Butler Chemical Clpany, I 16
NlRH 1041 (195).
? Member l'enello agrees with the ultillte dispositionl Of the mlisrepre-
sentation allegations for the reasons set forth in Shtopping Kurt I;,,d
Market, Inc , 228 NLRH 1311 (1'177l See his dissenting opinion in Getler-
al Knt off C'alifirn,u In,. 239 NLRII 619 (19781
certified unit and that it has refused and is continu-
ing to refuse to do so. In its response to the
Board's Notice To Show Cause, Respondent makes
the same arguments which it made in its motion for
reconsideration in Case 32-RC-677. Moreover, Re-
spondent expands upon its assertion in its original
answer that summary judgment should be denied
by pleading affirmative defenses that Objection I
should be sustained, the certification revoked, and
the election set aside, and that the Board's sua
sponrte amendment of Petitioner's name denies Re-
spondent due process for reasons stated in its
motion for reconsideration in the representation
proceeding.
We find no merit in Respondent's contention that
we may not find that the Union was properly certi-
fied and issue a bargaining order, without conduct-
ing an evidentiary hearing. As the Board stated in
Butler Chemical Company, supra at 1046-47:
. . . the Board does not deem it necessary to
redetermine a union's representative status,
once established, wherever it merges or con-
solidates with another union, changes its name
or affiliation, or makes administrative or struc-
tural changes.
In the instant case, Respondent has not specifi-
cally indicated that one of its reasons for refusing
to bargain with the Union was that the merger ef-
fectuated a change in the representative. Indeed,
we note that the Union's April 29, 1980, request to
bargain was made on behalf of "Retail Clerks
Union-Local 870," and that Respondent's May 5,
1980, letter refusing to bargain s was addressed to
the same entity. In these circumstances, we find, as
we did in the underlying representation proceed-
ing, that Respondent's assertions with respect to
the merger do not raise any issues warranting
denial of the Motion for Summary Judgment. 9
Respondent, as noted, also asserts that the Union
is not a labor organization. Respondent did not
raise this matter in the representation proceeding,
although it could have done so. Respondent, as
noted above, also argues that the Certification of
Representative is invalid because, inter alia, Objec-
tion I should have been sustained. This issue was
raised by Respondent in the previous representa-
tion proceedings and was disposed of adversely by
the Board. Accordingly, we find that these asser-
Ioth the Union's letter of April 29, 1980. and Respondent's letter of
May 5. 198). are attached to the Motion for Summary Judgment and are
not contro',erted by any party.
t As tled above. Respondent further contends that it is entitled to a
hearing on the name change issue However, Respondent does not indi-
cate hal evidence it would adduce at such a hearing to establish that
the merger constituted a substantial change in the identity of the hargain-
ilg representatie, and we therefiore find that a hearing is not required
II S
J. F. HINK & SON
tions do not raise litigable issues which require a
hearing.
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.'°
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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. Accordingly, we grant the
Motion for Summary Judgment. I
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation with an
office and place of business at Berkeley, California,
has been engaged in the operation of a retail de-
partment store. During the 12 months preceding is-
suance of the complaint herein, Respondent, in the
course and conduct of its business operations, de-
rived gross revenues in excess of $500,000 and pur-
chased and received goods or services valued in
excess of $50,000, which originated outside the
State of California.
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 INVOI.VEI)
Retail Clerks Union Local No. 870, United Food
and Commercial Workers Union, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
A' See Pimburgh Plate Glass Co. .'NL.R.B., 313l S 14, I62 (141l)
Rules and Regulation of he Board. See, 102 67(f) and 102 h9(c)
I ' In it. anwcr and amended anwers i the comnplaint, Respondent. ill
addi ion tIo densing the commission of any unfaiL r lahor pratices, delie
that the Liniton has heen cerlified a' the ecluiLJSi hbargainillg r,:preenlta-
live for the unit Impe lo ttes elioe r, as, the 3Board i ill its presious rprc-
sentatlion proceedinlgs disposld of these issuecs. thei ciannlle he reliligal ed
here
III. THE UNFAIR I.ABOR 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 selling and
non-selling employees employed by Respon-
dent at its retail store at Shattuck Avenue and
Kittredge in Berkeley, California; excluding
the president, general manager, assistant man-
ager, office manager, credit manager, assistant
office manager, head cashier, advertising man-
ager, assistant personnel manager, maintenance
manager, security manager, and security em-
ployees, buyers and assistant buyers, managers
of supplies, manager of receiving, and all other
guards and supervisors as defined in the Act.
2. The certification
On June 21, 1979, 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 32, designated the Union as
their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on April 23, 1980, and
the Union continues to be such exclusive represen-
tative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about April 29, 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 May 5, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, 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 Respondent has, since
May 5, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (I)
of the Act.
I 189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
I. J. F. Hink & Son is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Clerks Union Local No. 870, United
Food and Commercial Workers Union, AFL-CIO,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All full-time and regular part-time selling and
non-selling employees employed by Respondent at
its retail store at Shattuck Avenue and Kittredge in
Berkeley, California; excluding the president, gen-
eral manager, assistant manager, office manager.
credit manager, assistant office manager, head cash-
ier, advertising manager, assistant personnel man-
ager, maintenance manager, security manager, and
security employees, buyers and assistant buyers,
managers of supplies, manager of receiving, and all
other 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 April 23, 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 May 5, 1980, 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 prac-
tices 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,
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, J.
F. Hink & Son, Berkeley, California, 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
Union Local No. 870, United Food and Commer-
cial Workers Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time selling and
non-selling employees employed by Respon-
dent at its retail store at Shattuck Avenue and
Kittredge in Berkeley, California; excluding
the president, general manager, assistant man-
ager, office manager, credit manager, assistant
office manager, head cashier, advertising
manger, assistant personnel manager, mainte-
nance manager, security manager, and security
employees, buyers and assistant buyers, manag-
ers of supplies, manager of receiving, and all
other guards and supervisors as defined in the
Act.
1190
J F. HINK & SON
(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.
(b) Post at its Berkeley, California, store copies
of the attached notice marked "Appendix." 12
Copies of said notice, on forms provided by the
Regional Director for Region 32, 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
al In the event that this Order is enfolrced by a Judgment of a United
States Court of Appeals, the words in the notice reading "P',sted by
Order of the National I.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Cur! of Appeals Enforcing al]
Order of the National labor Relations oard "
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 Union No. 870,
United Food and Commercial Workers Inter-
national Union, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing 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 represen-
tative 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 bargaining unit is:
All full-time and regular part-time selling
and non-selling employees employed by the
Employerat its retail store at Shattuck
Avenue and Kittredge in Berkeley, Califor-
nia; excluding the president, general man-
ager, assistant manager, office manager,
credit manager, assistant office manager,
head cashier, advertising manager, assistant
personnel manager, maintenance manager,
security manager, and security employees,
buyers and assistant buyers, managers of
supplies, manager of receiving, and all other
guards and supervisors as defined in the Act.
J. F. HINK & SON
1191