Midland Food Center

National Labor Relations Board - Board Decisions

Aug 14, 1978

237 N.L.R.B. 448 (N.L.R.B. 1978)

nFllCNF nI, F NJATIONJAI II A ROR RFI ATIONNS RF1lARP
448
Midland Food Center and Retail Clerks Union Local
No. 367, Retail Clerks International Union, AFL-
CIO. Case 19-CA-10234
August 14, 1978
DECISION AND ORDER
BY MEMBERS PENEI .I.O Mt RPHY. ANI) TRtI :S)AI
Upon a charge filed March 8, 1978. by Retail
Clerks Union Local No. 367, Retail Clerks Interna-
tional Union, AFL CIO, herein called the Union.
and duly served on Midland Food C(enter, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Acting Regional
Director for Region 19, issued a complaint and notice
of hearing on April 13, 1978, 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.
Respondent failed to file an answer to the complaint.
On June 5. 1978, counsel for the General Counsel
filed directly with the Board a "Motion To Transfer
Case to Board and for Summary Judgment." Subse-
quently, on June 13, 1978, the Board issued an order
transferring the proceeding to the Board and a No-
tice To Show Cause why the General Counsel's Mo-
tion for Summary Judgment should not be granted.
Respondent failed to file a response to the Notice To
Show Cause, and therefore the allegations in the Mo-
tion for Summary Judgment stand uncontroverted.
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
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless
the respondent shall state in the answer that he
is without knowledge, shall be deemed to be ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on Re-
spondent herein specifically states that, unless an an-
swer to the complaint is filed within 10 days of ser-
vice thereof, "all of the allegations in said complaint
shall be deemed to be true and may be so found by
the Board." As noted above, Respondent has failed
to file an answer to the complaint and has failed to
file a response to the Notice To Show Cause.
Accordingly, under the rule set forth above, no
good cause having been shown for the failure to file a
timely answer, the allegations of the complaint are
deemed admitted and are found to be true, and we
shall grant the General Counsel's Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDIN(iS OFr FA
F 1HE RISINESS OF RESPONDENI
Respondent is, and has been at all times material
herein, owned and operated by William J. Rum-
baugh. an individual, who is doing business under
the name of Midland Food Center, with its office
and place of business located in Tacoma, Washing-
ton. Respondent is engaged in the business of retail
food sales. During the past year, Respondent, in the
course and conduct of its business operations, re-
ceived gross revenues in excess of $500,000 and pur-
chased goods and materials valued in excess of
$50,000 from suppliers which, in turn, obtained those
goods and materials from points directly outside the
State of Washington.
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 juris-
diction herein.
11 111F- I.ABOR OR(GANIZAHIION INVOLVED
Retail Clerks Union Local No. 367, Retail Clerks
International Union, AFL-CIO, is, and has been at
all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
237 NLRB No. 70
"L. · V 'rx ~ L' *xuoro I YI /trL\
MIlI ANi- Ff)N" CFNTFR
III TIE UNFAIR ABOR PR,('[ t' -S
The following employees of Respondent constitute
a unit appropriate for collective-hargaining purposes
within the meaning of Section 9(b) of the Act:
All employees employed in Respondent's pres-
ent and future grocery stores, including conces-
sions under the direct control of Respondent.
located in Pierce County, State of Washington,
but excluding employees whose work is per-
formed within a meat, culinary. prescription, or
bakery department location of the retail estab-
lishment and supervisors within the meaning of
the Act.
At all times material herein, the Union has been
and is now the exclusive collective-bargaining repre-
sentative of employees in the unit within the meaning
of Section 9(a) of the Act. Sometime during the
month of July 1974, the Union and Respondent en-
tered into a collective-bargaining agreement which
covered employees in the unit and whose duration,
by its terms, was from April 1, 1974. to April I, 1977.
On or about January 24, March 15. and December
12 and 21, 1977, the Union requested Respondent to
meet and confer with it for the purpose of collective
bargaining with respect to wages, hours, and other
terms and conditions of employment of the unit em-
ployees, to be included in a collective-bargaining
agreement effective upon expiration of the previous
agreement on April 1. 1977. Commencing on or
about January 24, 1977, and continuing to date. Re-
spondent has refused to recognize or bargain Aith
the Union as the exclusive bargaining representative
of employees in the unit.
Accordingly, we find that by the aforesaid conduct
Respondent has refused to bargain with the Union as
the exclusive collective-bargaining representative of
the employees in the appropriate unit. By such ac-
tion, we conclude that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and ( I) of the Act.
Iv. TtiE EFFE(C OF 1HE t :NI IR I ABOR PRAt IIt IS I P()N
( 0MMI R ( -
The activities of Respondent. set forth in section
III, above, occurring in connection with the opera-
tions described in section 1, above, have a close, inti-
mate, 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 commerce.
449
1 Ht1I RE SIt!D
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. We also shall
order that Respondent. upon request. bargain collec-
tivel, ith the Ulnion as the exclusive representati e
of all employees in the appropriate unit, and, if an
understanding is reached. embody such under-
standing in a signed agreement.
The Board. upon the basis of the foregoing facts
and the entire record, makes the following:
CO (It SliONS )1 L.Xv~
1. Midland Food ('enter is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Clerks Union Local No. 367, Retail
Clerks International Union, AFL CIO, is a labor or-
ganization] within the meaning of Section 2(5) of the
Act.
3. All emploees emploNed in Respondent's pres-
ent and future grocerv stores, including concessions
under the direct control of Respondent, located in
Pierce Countr. State of Washington, but excluding
employees whose work is performed within a meat.
culinary, prescription, or bakery department location
of the retail establishment and supervisors within the
meaning of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(h) of the Act.
4. At all times material herein, the above-named
labor organization has been and is now the exclusive
representative of all employees in the aforesaid ap-
propriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about January 24, 1977, 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-
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)( I ) of the A-ct.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7).
,.. Loorwl .
DECISIONS OF NAl IONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National L.abor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent.
Midland Food Center, T'acoma, Washington, its offi-
cers, 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. 367. Retail Clerks International Union.
AFL CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All employees employed in Respondent's pres-
ent and future grocery stores, including concecs-
sions under the direct control of Respondent,
located in Pierce County. State of Washington,
but excluding employees whose work is per-
formed within a meat. culinary, prescription, or
baker), department location of the retail estab-
lishment and supervisors within the meaning of
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 offices copies of the attached notice
marked "Appendix." ' Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof. and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(c) Notify the Regional Director for Region 19, in
writing, within 20 da s from the date of this Order,
what steps Respondent has taken to comply here-
with.
Iln Ithe c'\cll that this Ordcl I elnfolced b) .ajudgmenl of a L nited State,
(ourt ol Appeark. the '*ordt in the notie reading "Posted bh Order of the
Na.ional I.lhaor Relatliou Board" .hall read "Posted Pursuant to a Judg-
menl of the tInited Sta;te, ( ourt ol' A\ppeal .I n forcing an Order of Ithe
Nallonal I ahor Relationt B oaid
APPENDIX
Nol l I T(o EMl olo' l s
Poslii) BI ()RB ) R )IR t 111
N I I)N \I LAB() RI I .IioNs BO\ARI)
An Agency of the United States Government
Wt: wniiil ol refuse to bargain concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Retail Clerks
Union Local No. 367. Retail Clerks Internation-
al Union, AFL CIO, as the exclusive represen-
tative of the employees in the bargaining unit
described below.
Wi, Wnii NOI in anrv like or related manner
interfere with. restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
Wi, wili. 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 employees emploved in Respondent's
present and future grocery stores. including
concessions under the direct control of Re-
spondent, located in Pierce County, State of
Washington. but excluding employees whose
work is performed within a meat, culinary,
prescription or bakery department location of
the retail establishment and supervisors within
the meaning of the Act.
Mini) _NI) Foo) (CI NIl R
450