Ramey's Supermarket

National Labor Relations Board - Board Decisions

Jul 23, 1973

204 N.L.R.B. 1173 (N.L.R.B. 1973)

RED'S SUPERMARKET 1173
Red's Supermarket , a division of Roswil, Inc. d/b/a
Ramey's Supermarket and Retail Store Employees
Union Local 322. Case 17-CA-5456
July 23, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on January 8, 1973, by Retail
Store Employees Union Local 322, herein called the
Union, and duly served on Red's Supermarket, a divi-
sion of Roswil, Inc. d/b/a Ramey's Supermarket,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 17, issued a complaint and notice
of hearing on February 1, 1973, 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 proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on August 10, 1972,
following a Board election in Case 17-RC-6805 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commencing
on or about October 2, 1972, and at all times thereaf-
ter, Respondent has refused, and continues 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
February 9, 1973, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint and setting forth affirma-
tive defenses.
On March 5, 1973, counsel for the General Counsel
filed a motion to transfer proceeding to the Board and
for summary judgment, with exhibits attached, sub-
mitting, in effect, that the Respondent in its answer to
the complaint raises no issues which were not or could
not have been litigated in the underlying representa-
tion proceeding, Case 17-RC-6805, or issues which
'Official notice is taken of the record in the representation proceeding,
Case I7-RC-6805 , as the term "record" is defined in Secs . 102.68 and 102
.69(f) of the Board 's Rules and Regulations, Series 8, as amended . See LTV
Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968),
Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969);
Intertype Co. v. Penello, 269 F.Supp. 573 (D C Va, 1967); Follett Corp., 164
NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA
the Respondent failed to seek Board review during the
prior representation proceeding. Subsequently, on
March 15, 1973, the Board issued an order transfer-
ring 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 and opposition to summary judgment, with at-
tachments, and an affidavit in support of opposition
to summary judgment.
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
The thrust of the Respondent's answer to the com-
plaint, and its Response to Notice To Show Cause and
opposition to summary judgment, with attachments,2
and affidavit, attacks the Regional Director's Supple-
mental Decision on Objections and Certification of
Representative, and attacks the Board's denial of the
Respondent's request for review thereof. With respect
to its answer to the complaint, Respondent asserts
that the allegations of paragraphs 5(a), (b), (c), and
the first sentence of paragraph 5(d) of the complaint
are false insofar as they allege or imply that the pres-
ent Respondent was a party to the proceedings re-
ferred to therein. By this assertion, the Respondent
thereby admits the remaining parts of those para-
graphs. The Respondent further admits paragraphs
5(e) through 5(h) of the complaint. Thus, the Respon-
dent admits paragraphs 5(a) through 5(h) of the com-
plaint, that the issues and contentions as set forth
therein were considered and passed upon by the Re-
gional Director and the Board in the prior representa-
tion proceeding. In addition, the Respondent admits
paragraph 6 of the complaint, that it refused to bar-
gain with the Union and that it declined to furnish the
bargaining information requested by the Union as set
forth therein.
With respect to paragraphs 5(a), (b), (c), and the
first sentence of paragraph 5(d) of the complaint, su-
pra, we agree with counsel for the General Counsel as
set forth in his Motion for Summary Judgment that
inasmuch as the Respondent did not seek review of
the Regional Director's Order denying Respondent's
motion to reopen the record whereby the Respondent
was substituted as a successor employer to Red's Su-
permarket, Inc., and the petition was dismissed as to
2 The attachments , dated July 3, 1972, are the same as those previously
considered in the representation proceeding.
204 NLRB No. 164
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the latter, the Respondent thereby became a party to,
and expressly consented to be bound by, the proceed-
ings herein involving its predecessor, Red's Supermar-
ket, Inc. Moreover, in paragraph W of its answer to the
complaint, the Respondent in attacking the Board's
denial of the Respondent's request for review asserts
that the resulting certification is void and unenforce-
able for all of the reasons previously raised in the
request for review by the predecessor Respondent,
Red's Supermarket, Inc., and by the present Respon-
dent since "its entry and substitution in this case
...." Thus, the Respondent's answer to the com-
plaint merely reiterates the issues previously raised
and considered in the representation case, or issues
which the Respondent failed to seek Board review of
during the prior representation proceeding.
In its response to Notice To Show Cause Respon-
dent contends, in substance, that the affidavit at-
tached thereto shows that there is newly discovered
evidence which warrants a hearing. More particularly,
the Respondent contends that the Union has aban-
doned the certified unit in this case, and is insisting
that the Respondent bargain in a unit consisting of all
of the Respondent's stores, including those stores
where the employees have voted in separate elections
not to designate the Union as a bargaining agent; that
by such conduct the Union has waived and aban-
doned any right to bargain in this case; and that a
bargaining order should not issue against the Respon-
dent without a hearing. We find no merit in this con-
tention. Assuming, arguendo, that the Union is now
seeking to bargain in a broader unit, that in itself does
not constitute evidence that the Union is abandoning
its request for bargaining in the certified unit since an
alternative unit may be voluntarily agreed to by the
parties in certain circumstances. Secondly, the ques-
tion of a violation is still clear in view of Respondent's
answers to the complaint admitting that there was a
proper demand for bargaining in the certified unit
and that it refused to bargain. Lastly, even assuming
that the Union is now asking for bargaining in a
broader unit, the order here runs to the certified unit
and the Employer will not be prejudiced by the limit-
ed order entered here. Consequently, Respondent's
affidavit does not raise any relevant factual issue that
would either warrant a hearing or rejection of the
Motion for Summary Judgment.'
3In its response , the Respondent further contends that the Regional
Director's and the Board 's refusal to set aside the election, on the ground that
the Union waived initiation fees and dues contingent on the outcome of the
election , should be reconsidered in light of the Sixth Circuit's recent decision
in N.L R. B. v Savair Mfg Co, 470 F.2d 305. With due deference to the view
expressed by the U.S Court of Appeals for the Sixth Circuit which acknowl-
edges that it is in conflict with the decisions of the Eighth and Ninth Circuits,
N.L.R.B. v. DIT-MCO, Inc, 428 F.2d 775, and N.LR B v G K Turner
Associates, 457 F.2d 484 , respectively , until the matter has been passed upon
With respect to Respondent's other allegations, it is
well settled that in the absence of newly discovered or
previously unavailable evidence or special circum-
stances a respondent in a proceeding alleging a viola-
tion of Section 8(a)(5) is not entitled to relitigate issues
which were or could have been litigated in a prior
representation proceeding.4
Except for the single issue noted above, which has
been found to lack merit, all issues raised by the Re-
spondent in this proceeding were or could have been
litigated in the prior representation proceeding, and
the Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable evi-
dence, nor does it allege any such special circumstanc-
es 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. We shall, accordingly,
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
At all times material herein, the Respondent has
maintained its principal place of business at Cassville,
Missouri, where it has been, and currently is, engaged
in the retail sale of groceries, meats, dairy products,
and other related products. In the course and conduct
of its business operations the Respondent annually
sells and distributes merchandise the gross value of
which exceeds $500,000. In the course and conduct of
its business operations, the Respondent annually pur-
chases merchandise valued in excess of $1,000 directly
from enterprises located in States other than the State
of Missouri.
We find, on the basis of the foregoing, that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union Local 322 is a labor
organization within the meaning of Section 2(5) of the
Act.
by the U.S Supreme Court, we adhere to our position that it was reasonable
for the Board to determine that an offer to waive initiation fees prior to an
election, whether or not conditioned upon the outcome of the election, is
permissable.
4 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 102.69(c)
RED'S SUPERMARKET
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time and regular part-time grocery and
produce department employees of Red's Super-
market, Inc., at its Cassville, Missouri grocery
store, including checkers, stockers, and carryout
boys, but excluding meat counter employees, of-
fice clerical employees , owner , store manager, as-
sistant store manager , guards and other
supervisors as defined in the Act.
2. The certification
On June 15, 1972, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 17, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 10, 1972, and the Union contin-
ues 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 September 26, 1972, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit and further has
requested that Respondent supply it with information
necessary to prepare for or conduct collective-bar-
gaining negotiations. Commencing on or about Octo-
ber 2, 1972, 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 representative for collective bargaining of
all employees in said unit, or to provide it with any of
the information requested.
Accordingly, we find that the Respondent has,
since October 2, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor practic-
es within the meaning of Section 8(a)(5) and ( 1) of the
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
Act.
1175
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd . 328 F.2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB 1419,
1421, enfd . 350 F .2d 57 (C.A. 10).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Red's Supermarket, a division of Roswil, Inc.
d/b/a Ramey's Supermarket, is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Store Employees Union Local 322 is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time grocery and
produce department employees of Red's Supermar-
ket, Inc. at its Cassville, Missouri grocery store, in-
cluding checkers, stockers, and carryout boys, but
excluding meat counter employees, office clerical em-
ployees , owner, store manager , assistant store manag-
er, guards and other supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since August 10, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9 (a) of the
Act.
5. By refusing on or about October 2 , 1972, 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 Respon-
dent in the appropriate unit , and by refusing to
provide the Union with information necessary to pre-
pare for or conduct collective -bargaining negotia-
tions , Respondent has 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, Respondent
has interfered with , restrained , and coerced, and is
interfering with , restraining , and coercing, employees
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 mean-
ing 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 Rela-
tions Board hereby orders that Respondent, Red's
Supermarket, a division of Roswil, Inc. d/b/a
Ramey's Supermarket, 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 condi-
tions of employment with Retail Store Employees
Union Local 322 as the exclusive bargaining represen-
tative of its employees in the unit described below,
and refusing to provide said Union with information
necessary to prepare for or conduct collective-bar-
gaining negotiations. The unit is:
All full-time and regular part-time grocery and
produce department employees of Red's Super-
market, Inc. at its Cassville, Missouri grocery
store, including checkers, stockers, and carryout
boys, but excluding meat counter employees, of-
fice clerical employees, owner, store manager, as-
sistant store manager, guards and other
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) Provide the above-named Union with informa-
tion necessary to prepare for or conduct collective-
bargaining negotiations and, upon request, bargain
with the above-named labor organization as the ex-
clusive representative of all employees in the afore-
said appropriate unit with respect to rates of pay,
wages, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its Cassville, Missouri, store copies of
the attached notice marked "Appendix." S Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 17, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consectuve 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 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Retail
Store Employees Union Local 322, as the exclu-
sive representative of the employees in the bar-
gaining unit described below, nor will we refuse
to provide said Union with information neces-
sary to prepare for or conduct collective-bargain-
ing negotiations.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
RED'S SUPERMARKET
Section 7 of the Act.
WE WILL provide the above-named Union with
information necessary to prepare for or conduct
collective-bargaining negotiations.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative 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 full-time and regular part-time grocery
and produce department employees of Red's
Supermarket, Inc. at its Cassville, Missouri
grocery store, including checkers, stockers,
and carryout boys, but excluding meat counter
employees, office clerical employees, owner,
store manager, assistant store manager, guards
and other supervisors as defined in the Act.
1177
RED'S SUPERMARKET , A DIVI-
SION OF RoswIL , INC. D/B/A
RAMEY'S SUPERMARKET
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , 616 Two Gateway Center , Fourth at
State , Kansas City , Missouri 64101, Telephone 816-
374-4518.
* U.S. GOVERNMENT PRINTING OFFICE 1975 0-550-242