King Soopers

National Labor Relations Board - Board Decisions

Jun 8, 2001

334 N.L.R.B. 38 (N.L.R.B. 2001)

334 NLRB No. 38
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Dillon Companies, Inc. d/b/a King Soopers and Paper,
Allied-Industrial, Chemical and Energy Work-
ers International Union, Local 5-920. Case 27–
CA–17309
June 8, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS TRUESDALE
AND WALSH
Pursuant to a charge filed on February 15, 2001, the
Acting General Counsel of the National Labor Relations
Board issued a complaint on March 15, 2001, alleging
that the Respondent has violated Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act) by refusing
to bargain following the Decision and Order Clarifying
Unit in Case 27–UC–200. (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.
On April 27, 2001, counsel for the Acting General
Counsel filed a Motion for Summary Judgment. On May
3, 2001, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain but attacks the validity of the Board’s unit determi-
nation in the underlying unit clarification proceeding.
Specifically, the Respondent argues that the Decision and
Order Clarifying Unit incorrectly included in the existing
unit pharmacists employed by the Respondent at 12 sepa-
rate locations.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances 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 un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with various facilities in the State of Colorado, has been
engaged in the retail sale of groceries and related items.
Annually, the Respondent, in conducting its business
operations described above, derives gross revenues in
excess of $500,000, and purchases and receives goods,
materials, and services valued in excess of $5000 from
points located directly outside the State of Colorado.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent (the
pharmacy unit) constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full-time, regular part-time, and intern pharmacists
hired with five (5) years of education required to be-
come pharmacists, employed by the Employer within
the State of Colorado, excluding all office and store
clericals, all confidential secretaries, and supervisors as
defined in the Act, and all other employees.
Since at least 1989, and at all material times, the Union
has been the designated exclusive collective-bargaining
representative of the pharmacy unit, and the Respondent
has recognized the Union as the representative. This
recognition has been embodied in successive collective-
bargaining agreements for the pharmacy unit, the most
recent of which is effective from March 29, 1999,
through January 25, 2003. Since at least 1989, and at all
material times, the Union, based on Section 9(a) of the
Act, has been, and is now, the exclusive representative of
the pharmacy unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment.
On July 12, 2000, the Union filed a petition in Case
27–UC–200 seeking clarification of the unit to include in
the existing unit, pharmacists employed by the Respon-
dent at 12 separate locations.
On August 23, 2000, the Regional Director issued a
Decision and Order granting the Union’s request to clar-
ify the unit to include the petitioned-for pharmacists in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
dispute. The Respondent filed a request for review
which the Board denied on January 18, 2001.
Refusal to Bargain
Since on about February 15, 2001, the Respondent has
failed and refused to recognize the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the pharmacy unit who were the subject of the
Regional Director’s unit clarification decision, and since
that date the Respondent has refused to apply the collec-
tive-bargaining agreement to those employees. We find
that this refusal constitutes an unlawful refusal to bargain
in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after February 15, 2001, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the
pharmacy unit who were the subject of the Decision and
Order Clarifying Unit in Case 27–UC–200, the Respon-
dent has engaged in unfair labor practices affecting
commerce 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 recognize the Union as the collective-
bargaining representative of the employees who were the
subject of the Decision and Order Clarifying Unit in
Case 27–UC–200, and to apply the existing contract to
them.
ORDER
The National Labor Relations Board orders that the
Respondent, Dillon Companies, Inc., d/b/a King Soopers,
Denver, Colorado, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Paper, Allied-Industrial,
Chemical and Energy Workers International Union, Lo-
cal 5-920 as the exclusive bargaining representative of
the employees in the bargaining unit set forth below who
were the subject of the Decision and Order Clarifying
Unit in Case 27–UC–200.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate bargaining unit who were the sub-
ject of the Decision and Order Clarifying Unit in Case
27–UC–200:
All full-time, regular part-time, and intern pharmacis ts
hired with five (5) years of education required to be-
come pharmacists, employed by the Employer within
the State of Colorado, excluding all office and store
clericals, all confidential secretaries, and supervisors as
defined in the Act, and all other employees.
(b) Apply the existing collective-bargaining agreement
to the employees who were included in the bargaining
unit by the Decision and Order Clarifying Unit in Case
27–UC–200.
(c) Within 14 days after service by the Region, post at
its facilities in Colorado covered by the collective
bargaining agreement, copies of the attached notice
marked “Appendix.”1 Copies of the notice, on forms
provided by the Regional Director for Region 27, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all
current employees and former employees employed by
the Respondent at any time since February 15, 2001.
(d) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. June 8, 2001

Peter J. Hurtgen, Chairman

John C. Truesdale, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

1 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.”
KING SOOPERS 3
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Paper, Allied-
Industrial, Chemical, and Energy Workers International
Union, Local 5-920, as the exclusive representative of
the employees in the bargaining unit set forth below who
were the subject of the Decision and Order Clarifying
Unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union as the exclusive representative of the employees in
the following appropriate bargaining unit who were the
subject of the Decision and Order Clarifying Unit:

All full-time, regular part-time, and intern pharmacists
hired with five (5) years of education required to be-
come pharmacists, employed by us within the State of
Colorado, excluding all office and store clericals, all
confidential secretaries, and supervisors as defined in
the Act, and all other employees.

WE WILL apply the collective-bargaining agreement to
the employees who were included in the bargaining unit
by the Decision and Order Clarifying Unit.
DILLON COMPANIES, INC D/B/A KING SOOPERS