Revco D.S., Inc.

National Labor Relations Board - Board Decisions

May 12, 1997

323 N.L.R.B. 131 (N.L.R.B. 1997)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Revco D.S., Inc. and United Food and Commercial
Workers International Union, Local 1059,
AFL–CIO–CLC. Case 9–CA–34561
May 12, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on January 22, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on
February 7, 1997, alleging that the Respondent has
violated Section 8(a)(5) and (1) of the National Labor
Relations Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 9–RC–
16741. (Official notice is taken of the ‘‘record’’ in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond­
ent filed an answer admitting in part and denying in
part the allegations in the complaint, and asserting af­
firmative defenses.
On April 23, 1997, the General Counsel filed a Mo­
tion for Summary Judgment and Memorandum in sup-
port. On April 24, 1997, the Board issued an order
transferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be granted.
On May 5, 1997, the Respondent filed a response.
Ruling on Motion for Summary Judgment
In its answer and response the Respondent admits its
refusal to bargain, but attacks the validity of the cer­
tification on the basis of its objections to conduct al­
leged to have affected the results of the election in the
representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen­
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre­
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro­
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.1
1 Member Higgins did not participate in the underlying representa­
tion proceeding. However, he agrees with his colleagues that the Re-
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the operation of retail drug and
sundry stores in various locations throughout the Unit­
ed States, including Chillicothe, Ohio.
During the 12-month period preceding the issuance
of the complaint, the Respondent, in conducting its op­
erations, derived gross revenues in excess of $500,000
and purchased and received at its Ohio facilities goods
valued in excess of $50,000 directly from points out-
side the State of Ohio.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza­
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held July 3, 1996, the Union
was certified on September 30, 1996, as the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
All employees employed by the Respondent at its
store located at 1175 Western Avenue, Chil­
licothe, Ohio, but excluding the store manager, as­
sistant store manager, pharmacist and pharmacist
interns and all professional employees, guards and
supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since about October 1, 1996, the Respondent has
failed and refused to recognize the Union as the exclu­
sive collective-bargaining representative of the unit.
We find that this failure and refusal constitutes an un­
lawful refusal to bargain in violation of Section 8(a)(5)
and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after October 1,
1996, to recognize the Union as the exclusive collec­
tive-bargaining representative of employees in the ap­
propriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
spondent has raised no new issues in this ‘‘technical’’ 8(a)(5) pro­
ceeding warranting a hearing.
323 NLRB No. 131
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that the Respondent has violated Sec­
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un­
derstanding in a signed agreement.
To ensure that the employees are accorded the serv­
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe­
riod of the certification as beginning the date the Re­
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Revco D.S., Inc., Chillicothe, Ohio, its of­
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Food and Com­
mercial Workers International Union, Local 1059,
AFL–CIO–CLC, as the exclusive bargaining represent­
ative of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu­
sive representative of the employees in the following
appropriate unit on terms and conditions of employ­
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All employees employed by the Respondent at its
store located at 1175 Western Avenue, Chil­
licothe, Ohio, but excluding the store manager, as­
sistant store manager, pharmacist and pharmacist
interns and all professional employees, guards and
supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Chillicothe, Ohio, copies of the at­
tached notice marked ‘‘Appendix.’’2 Copies of the no­
tice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
2 If 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.’’
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no­
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since January 22, 1997.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. May 12, 1997
������������������
William B. Gould IV, Chairman
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Sarah M. Fox, Member
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John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or­
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United Food
and Commercial Workers International Union, Local
1059, AFL–CIO–CLC, as the exclusive representative
of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All employees employed by us at our store lo­
cated at 1175 Western Avenue, Chillicothe, Ohio,
but excluding the store manager, assistant store
manager, pharmacist and pharmacist interns and
all professional employees, guards and supervisors
as defined in the Act.
REVCO D.S., INC.