Midwest Zayre, Inc.

National Labor Relations Board - Board Decisions

Jan 1, 1980

247 N.L.R.B. 249 (N.L.R.B. 1980)

MIDWEST ZAYRE, INC.
Midwest Zayre, Inc. and Retail Store Employees
Union Local 880, United Food and Commercial
Workers International Union, AFL-CIO.' Case 8-
CA- 11606
January 11, 1980
SUPPLEMENTAL DECISION AND ORDER
On June 9, 1978, the National Labor Relations
Board issued a Decision and Order2 in the above-
entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended, and ordering Respondent to cease
and desist therefrom and take certain affirmative
action to remedy such unfair labor practices.
In the underlying Decision and Certification of
Representative' the Board overruled Respondent's
objections to an election held on July 21, 1977,
Members Penello and Murphy thereby affirming the
Regional Director's application of Shopping Kart Food
Market, Inc., 228 NLRB 1311 (1977), to Respondent's
Objection 1, which was based on alleged misrepresen-
tations, and Chairman Fanning at footnote 2 concur-
ring in the result under the standards of Hollywood
Ceramics, Inc., 140 NLRB 221 (1962). On December
6, 1978, the Board issued General Knit of Califbrnia,
Inc., 239 NLRB 619, which reversed Shopping Kart
and reaffirmed the criteria set forth in Hollywood
Ceramics, Inc., supra, for determining the validity of
objections based on alleged misrepresentation. There-
after, the Board decided sua sponte to reconsider the
Decision and Order herein, in light of General Knit of
California, and directed the General Counsel to seek a
remand of the instant case from the Sixth Circuit
Court of Appeals. The General Counsel filed a
' The name of the Charging Party, formerly Retail Clerks International
Association, is amended to reflect the change resulting from the merging of
Retail Clerks International Union and Amalgamated Meatcutters and
Butcher Workmen of North America on June 7. 1979.
236 NLRB 799.
'Case 8-RC-10991, issued November 29., 1977. not published in Board
volumes.
"Motion for Leave to Withdraw Certified List Filed in
Lieu of Record" with the Court of Appeals and said
motion was granted on February 13, 1979.
The Board has reconsidered the entire record in this
proceeding and adheres to the position taken in the
underlying representation case that Respondent's ob-
jections were without merit.
We find, as did Chairman Fanning in his separate
position in the underlying representation case, that the
alleged misrepresentations in Objection 1, even if
established, would be insufficient to warrant setting
aside the election under Hollywood Ceramics. In view
of the foregoing, we conclude that under the standard
of Shopping Kart, or the standard of Hollywood
Ceramics, Respondent's Objection 1 is without merit.
Thus we find that the Union was properly certified as
the representative of the unit employees; that Respon-
dent's failure and refusal to recognize and bargain
with the Union violated the Act as alleged; and that
the General Counsel's Motion for Summary Judgment
was properly granted. Accordingly, the Board reaf-
firms the initial Decision and Order in this case and
shall order that Respondent comply with the provi-
sions of that Order.
ORDER
It is hereby ordered that the Respondent, Midwest
Zayre, Inc., take that action ordered in, and otherwise
comply with the provisions of, the Order in this
proceeding issued on June 9, 1978, reported at 236
NLRB 799.
MEMBER PENELLO, concurring:
For the reasons set forth in my dissents in General
Knit ' and Blackman-Uhler ' I would reaffirm our
original decision. I continue to adhere to the sound
principles of Shopping Kart.
General Knit of California. Itc.. 239 NLRB 619(1978).
·Blackman-Uhcr Chemical Division-Svrallov Corporation. 239 NL RB
637 (1978).
'Shopping Kartl ood Market. Inc.. 228 NLRB 1311 (1977).
247 NLRB No. 39
249