Mr. B. IGA, Inc.

National Labor Relations Board - Board Decisions

May 5, 1981

255 N.L.R.B. 1311 (N.L.R.B. 1981)

MR. B. IGA, INC. 1311
Mr. B. IGA, Inc. and District Union 271 of the
United Food & Commercial Workers Interna-
tional Union, AFL-CIO, CLC. Case 17-CA-
9961
May 5, 1981
DECISION AND ORDER
Upon a charge filed on October 8, 1980, by Dis-
trict Union 271 of the United Food & Commercial
Workers International Union, AFL-CIO, CLC,
herein called the Union, and duly served on Mr. B.
IGA, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 17, issued a com-
plaint on November 21, 1980, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1), Section 8(d), and Section 2(6) and (7) of the
National Labor Relations Act, as amended. The
complaint was amended by the Regional Director
on November 28, 1980. 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, as amended, alleges in substance that on
February 1, 1980, following a Board election in
Case 17-RC-7989 the Union was duly certified as
the exclusive collective-bargaining representative
of Respondent's employees in the unit found appro-
priate; l and that, commencing on or about July 24,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so; and that com-
mencing on or about September 10, 1980, and at all
times thereafter, Respondent has refused to furnish
information requested by the Union regarding the
name of each employee in the bargaining unit and
his or her address, seniority date, classification, rate
of pay, insurance policy, and employee's contribu-
tion, if any, number of holidays, amount of vaca-
tion, rest periods, overtime pay policy, and other
benefits these employees presently have, which in-
formation is necessary for collective bargaining. On
November 25, 1980, Respondent filed its answer to
the complaint and on December 8, 1980, filed an
official notice is taken of the record in the representation proceed-
ing, Case 17-RC-7989, 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
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415
F.2d 26 (5th Cir. 1969): Intertype Co. v. Penello, 269 F. Supp 573
(D.C.Va. 1967): Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968): Sec 9(d) of the NLRA. as amended.
255 NLRB No. 111
amended answer, admitting in part, and denying in
part, the allegations in the complaint, as amended,
and asserting as an affirmative defense that it has
no current obligation to bargain with the Union be-
cause of the unusual circumstances surrounding the
issuance of certification and the changed conditions
within the unit, to wit, lengthy delays between the
election and certification, the sale of three of the
four stores in the unit and the resulting diminution
of the unit from 19 to 3 employees, and the com-
plete turnover of employees in the unit since the
election.
On December 23, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 7,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a Motion for Summary Judgment
and a response to the Notice To Show Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary Judgment
In its answer to the complaint, as amended, its
Motion for Summary Judgment, and response to
the Notice To Show Cause, Respondent basically
contends that certification was not appropriate
herein because of a lengthy delay in the processing
of its objections which, according to Respondent,
lead to "unusual circumstances" precluding certifi-
cation.
Our review of the record herein, including the
record in Case 17-RC-7989, reveals that pursuant
to a Decision and Direction of Election, an elec-
tion was conducted on June 17, 1976, and resulted
in a 10-to-6 vote in favor of the Union, with 3 chal-
lenged ballots. Respondent filed timely objection
and supplemental objections to conduct affecting
the results of the election. On August 24, 1976, the
Regional Director found that certain of the objec-
tions set forth raised substantial and material issues
of fact and law which could best be resolved after
a hearing and, accordingly, issued the appropriate
notice of hearing. A hearing was held October 5
and 18, 1976, and on November 4, 1976, the Hear-
ing Officer issued his report on objections with
findings and recommendations wherein he recom-
mended that the Employer's objections be over-
ruled and that a certification of representative be
issued to the Union. On November 4, 1976, Re-
spondent filed exceptions to the Hearing Officer's
report.
On February 1, 1980, the Regional Director
issued a Supplemental Decision on Objections and
MR. ~~.. B. ..,IC.11
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certification of Representative wherein he adopt-
ed the findings and recommendation of the Hearing
Officer and explained that the Employer's excep-
tions had been inadvertently misplaced, due, in
part, to the transfer of the Hearing Officer out of
the Regional Office the day after his report issued.
Respondent filed a timely request for review of the
Regional Director's Supplemental Decision and a
motion to dismiss and, on March 20, 1980, the
Board issued a Notice To Show Cause and order
granting review. In its motion to dismiss Re-
spondent argued that a substantial question of
Board policy was raised by the Supplemental Deci-
sion since affirmance of that Decision would have
resulted in the certification of an inappropriate unit.
Respondent further argued that the Supplemental
Decision was based upon an outdated and errone-
ous factual record in that (1) more than 3-1/2 years
had passed since the election; (2) during that period
of time three of the original four stores in the unit
had been sold to unrelated entities; (3) during that
period of time the unit had been reduced in size
from 19 to 3 employees; (4) since the election had
been held in a larger unit, there had never been
any showing of majority in the single store remain-
ing in the unit; and (5) only 1 employee eligible to
participate in the election remained employed in
the unit. Respondent attached an affidavit in sup-
port of its assertion that the unit had been reduced
in size.
The Union filed a timely response to the Notice
To Show Cause in which it contended that the
delay of nearly 4 years had not been caused by the
Union, that Respondent had not fulfilled its bar-
gaining obligations, that the contraction of the unit
and turnover of employees had not relieved Re-
spondent of its duty to bargain, and that the Union
had been denied the right to represent and bargain
on behalf of the employees in the unit.
On June 16, 1980, the Board, then-Member
Truesdale dissenting, affirmed the Regional Direc-
tor's Supplemental Decision on Objections and
Certification of Representative, but amended the
certification to reflect the Union's current designa-
tion. The Board explained that, despite the alleged
contraction of the unit, the original unit had not
been shown to have been rendered inappropriate.
Furthermore, the Board stated, the language of
Section 9(c)(1) of the Act is mandatory and re-
quires that the Board "shall certify" the results of a
duly conducted secret-ballot representation elec-
tion.
In its Motion for Summary Judgment and its re-
sponse to the General Counsel's motion, Respond-
ent again raises the delay of more than 3 years, the
sale of three of the four stores, the reduction of the
number of employees in the unit from 19 to 3, and
the turnover of employees in the unit. Despite Re-
spondent's assertion that these issues were not con-
sidered by the Board or were not determined by
the Board during the representation proceedings,
the Board's affirmance of the Regional Director's
Supplemental Decision clearly indicates that these
issues have been considered but have been found
not to bar certification. In addition, Respondent
now argues that the Union acquiesced in the delay,
citing footnote 3 of the Regional Director's Supple-
mental Decision that "no party made any inquiry
until January 15, 1980." This issue was raised and
litigated by Respondent during the representation
proceedings. The Board has considered this issue
and has found that certification is not barred by
reason of any purported acquiescence by either
party.
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.2
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 adequately support its claim that special circum-
stances exist herein which would require the Board
to reexamine the decision made in the representa-
tion proceeding. s We therefore find that Respond-
ent has not raised any issue which is properly liti-
gable in this unfair labor practice proceeding. Ac-
cordingly, we grant the General Counsel's Motion
for Summary Judgment and deny Respondent's
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a State of Nebraska corporation, is
engaged in the operation of a retail grocery store
at 48th Street and VanDorn in Lincoln, Nebraska.
In the course and conduct of its business operations
within the State of Nebraska, Respondent annually
purchases goods and services valued in excess of
2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941)
Rules and Regulations of the Board, Secs. 102.67(f) and 102.6
9(c).
" Member Zimmerman, who did not participate in the underlying rep-
resentation case, considers himself bound to grant summary judgment in
this case without regard to the merits of the issues which Respondent
now attempts to relitigate for the reasons stated in his concurrence in
Bravos Oldsmobile. 254 NLRB No. 135 (1981).
MR. B. IGA. INC. 1313
$10,000 from sources located outside the State of
Nebraska and receives gross revenues in excess of
$50,000.
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 INVOLVED
District Union 271 of the United Food & Com-
mercial Workers International Union, 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 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 meat de-
partment employees, including meat depart-
ment managers, employed by Mr. B. IGA,
Inc., at its Lincoln, Nebraska grocery stores
but excluding office clerical employees, casual
employees, professional employees, guards and
supervisors as defined in the Act, and all other
employees.
2. The certification
On June 17, 1976, 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 17, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on February 1, 1980, 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 July 24, 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 July 24, 1980, and continuing
at all times thereafter to date, Respondent had 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.
Commencing on or about September 10, 1980,
and at all times thereafter, the Union, by letter, has
requested Respondent to furnish the Union with
the name of each employee in the bargaining unit
with his or her address, seniority date, classifica-
tion, rate of pay, insurance policy and employee's
contribution, if any, pension plan, if any, number of
holidays, amount of vacation, rest periods, and
overtime pay policy, and any other benefits these
employees presently have. This information is nec-
essary for and relevant to the Union's performance
of its function as the exclusive collective-bargaining
representative of the unit employees. Since on or
about September 10, 1980, Respondent has failed
and refused to furnish the Union the information
described above.
Accordingly, we find that Respondent has, since
July 24, 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, Respondent has, since Septem-
ber 10, 1980, and at all times thereafter, refused to
supply information requested by the Union, which
information is necessary for collective bargaining,
and that, by such refusals, Respondent 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 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-
struction 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. We shall also order Respondent to
supply the information, necessary for collective
bargaining, requested by the Union.
MR. . GA. INC.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
(1964); 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
1. Mr. B. IGA, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. District Union 271 of the United Food &
Commercial Workers International Union, 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 meat de-
partment employees, including meat department
managers, employed by Mr. B. IGA, Inc., at its
Lincoln, Nebraska, grocery stores but excluding
office clerical employees, casual employees, profes-
sional employees, guards and supervisors as defined
in the Act, and all other employees, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since February 1, 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 July 24, 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 refusing on or about September 10, 1980,
to supply information requested by the Union in-
cluding the name of each employee in the bargain-
ing unit with his or her address, seniority date,
classification, rate of pay, insurance policy and em-
ployee's contribution, if any, pension plan, if any,
number of holidays, amount of vacation, rest peri-
ods, and overtime policy, and any other benefits
these employees currently have, which information
is necessary for collective bargaining, Respondent
has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) of
the Act.
7. By the aforesaid refusals to bargain, Respond-
ent 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)(1) of the Act.
8. 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,
Mr. B. IGA, Inc., Lincoln, Nebraska, 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 District Union 271
of the United Food & Commercial Workers Inter-
national Union, AFL-CIO, CLC, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time meat de-
partment employees, including meat depart-
ment managers, employed by Mr. B. IGA, Inc.
at its Lincoln, Nebraska grocery stores but ex-
cluding office clerical employees, casual em-
ployees, professional employees, guards and
supervisors as defined in the Act, and all other
employees.
(b) Refusing to supply the above-named Union
with information necessary for collective bargain-
ing, including the name of each employee in the
bargaining unit with his or her address, seniority
date, classification, rate of pay, insurance policy
and employee's contribution, if any, pension plan, if
any, number of holidays, amount of vacation, rest
periods, and overtime policy, and any other bene-
fits these employees presently have.
(c) 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:
MR. B. IGA, INC. 1315
(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) Upon request, supply the above-named Union
with information necessary for collective bargain-
ing, including the name of each employee in the
bargaining unit with his or her address, seniority
date, classification, rate of pay, insurance policy
and employee's contribution, if any, pension plan, if
any, number of holidays, amount of vacation, rest
periods, and overtime policy, and any other bene-
fits these employees presently have.
(c) Post at Respondent's retail store in Lincoln,
Nebraska, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17,
after being duly signed by Respondent's representa-
tive, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
I 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 Pursu-
ant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board"
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 District Union 271 of the United Food &
Commercial Workers International Union,
AFL-CIO, CLC, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT refuse to supply the above-
named Union with information necessary for
collective bargaining, including the name of
each employee in the bargaining unit with his
or her address, seniority date, classification,
rate of pay, insurance policy and employee
contribution, if any, pension plan, if any,
number of holidays, amount of vacation, rest
periods, and overtime policy, and any other
benefits these employees presently have.
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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions 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 meat de-
partment employees, including meat depart-
ment managers, employed by us, at our Lin-
coln, Nebraska grocery stores but excluding
office clerical employees, casual employees,
professional employees, guards and supervi-
sors as defined in the Act, and all other em-
ployees.
WE WILL, upon request, supply the above-
named Union with information necessary for
collective bargaining, including the name of
each employee in the bargaining unit with his
or her address, seniority date, classification,
rate of pay, insurance policy and employee
contribution, if any, pension plan, if any,
number of holidays, amount of vacation, rest
periods, and overtime policy, and any other
benefits these employees presently have.
MR. B. IGA, INC.
MR. B. IGA. INC. 5