King's Markets, Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1977

233 N.L.R.B. 455 (N.L.R.B. 1977)

KING'S MARKETS, INCORPORATED
King's Markets, Incorporated and Retail Clerks
Union, Local 278 affiliated with Retail Clerks
International Association, AFL-CIO-CLC. Case
5-CA-8619
November 15, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on May 13, 1977, by Retail
Clerks Union, Local 278 affiliated with Retail Clerks
International Association, AFL-CIO-CLC, herein
called the Union, and duly served on King's
Markets, Incorporated, herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 5, issued a complaint and notice of hearing
on June 7, 1977, 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
complaint alleges in substance that on March 10,
1977, following a Board election in Case 5-RC-9935
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about April 29, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues 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 June 17, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On August 5, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 10,
1977, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause entitled "Answer to Notice To Show Cause."
lOfficial notice is taken of the record in the representation proceeding,
Case 5-RC-9935, 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 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
233 NLRB No. 60
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 to the complaint and response to the
Notice To Show Cause, Respondent denies the
validity of the Union's certification, contending that
the finding that the single-store unit was appropriate
contravened Section 9(c)(5) of the Act and that only
a single unit comprising all 21 of the Respondent's
chain stores constituted an appropriate bargaining
unit. The General Counsel contends that Respondent
is attempting here to relitigate an issue already heard
and determined in the prior representation proceed-
ing, which it may not do. We agree with the General
Counsel.
Our review of the entire record, including the
record in Case 5-RC-9935, discloses that after a
hearing the Regional Director, in his February 4,
1977, Decision and Direction of Election, found the
single-store unit sought by the Union to be appropri-
ate and directed an election therein. Respondent
filed a timely request for review contending that,
based on the record in the underlying representation
case which included that in Case 5-RC-9781, the
single-store unit was based essentially on the extent
of organization contrary to Section 9(c)(5) of the Act
and that only a multistore unit was appropriate. In a
telegraphic communication of March 1, 1977, the
Board (Member Walther dissenting) denied Respon-
dent's request for review as raising no substantial
issues warranting review. In an election conducted
on March 2, 1977, pursuant to the Regional
Director's Decision and Direction of Election, the
Union was successful by a vote of 16 to 14 with I
nondeterminative challenge. There were no objec-
tions to the election, and the Regional Director, on
March 10, 1977, certified the Union.
It is well settled that in the absence of newly
discovered or previously unavailable 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 proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does 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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. Accordingly,3 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 THE RESPONDENT
Respondent, a Virginia corporation with its princi-
pal office in Lynchburg, Virginia, operates a chain of
retail stores in the State of Virginia, where it is
engaged in the retail sale and distribution of food
and other products. During the preceding 12 months,
Respondent had gross sales in excess of $500,000.
During the same period Respondent purchased and
received, in interstate commerce, goods and supplies
valued in excess of $50,000 from points located
outside the State of Virginia.
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 278 affiliated with
Retail Clerks International Association, AFL-CIO-
CLC, is a labor organization 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time employees of
the Employer at its Florida Avenue store located
3 The Respondent's answer to the complaint denied allegations concern-
ing the request and refusal to bargain. Attached to the Motion for Summary
Judgment as Exhs. 8 and 9 are copies of two letters the contents of which
were not controverted by the Respondent. In the April 11, 1977. letter, the
Union requested that the Respondent meet with it for purposes of collective
bargaining. In the Apnl 29. 1977. letter replying to the Union's request, the
in Lynchburg, Virginia, but excluding the meat
department manager, all office clerical employees,
casual employees, guards and supervisors as
defined in the Act.
2. The certification
On March 2, 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 5, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 10, 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 April 18, 1977, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 29, 1977, and continuing
at all times thereafter to date, the 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.
Accordingly, we find that the Respondent has,
since April 29, 1977, 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, Respon-
dent has engaged 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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
Respondent declined to bargain with the Union until ordered to do so by
the appropriate United States court of appeals. Based on these uncontro-
verted exhibits, we find that the request and refusal-to-bargain allegations
have been admitted and therefore established. Sierra Paci~fc Hospitals, Inc.,
d/b/a Riverside Hospitalfor Extended Care, 226 NLRB 767 (1976).
456
KING'S MARKETS, INCORPORATED
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
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
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 (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:
CONCLUSIONS OF LAW
1. King's Markets, Incorporated, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks Union, Local 278 affiliated with
Retail Clerks International Association, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time employees
of the Employer at its Florida Avenue store located
in Lynchburg, Virginia, but excluding the meat
department manager, all office clerical employees,
casual 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 March 10, 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 April 29, 1977, 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
4 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
engaged 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to 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)(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
Relations Board hereby orders that Respondent,
King's Markets, Incorporated, Lynchburg, Virginia,
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 278 affiliated with Retail Clerks International
Association, AFL-CIO-CLC, as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time employees of
the Employer at its Florida Avenue store located
in Lynchburg, Virginia, but excluding the meat
department manager, all office clerical employees,
casual 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Florida Avenue store in Lynchburg,
Virginia, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 5, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 278 affiliated with Retail
Clerks International Association, AFL-CIO-
CLC, as the exclusive representative of the
employees in the bargaining unit described 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
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 agree-
ment. The bargaining unit is:
All full-time and regular part-time employ-
ees at our Florida Avenue store located in
Lynchburg, Virginia, but excluding the meat
department manager, all office clerical em-
ployees, casual employees, guards and su-
pervisors as defined in the Act.
KING'S MARKETS,
INCORPORATED
458