Super KMart

National Labor Relations Board - Board Decisions

Sep 11, 1997

324 N.L.R.B. 62 (N.L.R.B. 1997)

1
324 NLRB No. 62
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.
KMart Corporation d/b/a Super KMart Center
(Bradley, Illinois) and United Food and Com-
mercial Workers Union, Local 1540, Chartered
by the United Food and Commercial Workers
International Union, AFL–CIO. Case 33–CA–
12286
September 11, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on June 30, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on July
9, 1997, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act by refusing the Union’s request to bargain follow-
ing the Union’s certification in Case 33–RC–4121 (aka
Case 3–RC–19623). (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 Respondent filed an answer admitting in part and
denying in part the allegations in the complaint.
On August 1, 1997, the General Counsel filed a Mo-
tion for Summary Judgment. On August 5, 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 August 19, 1997, the Re-
spondent 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 certifi-
cation on the basis of the Board’s unit determination
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.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Michigan
corporation with an office and place of business in
Bradley, Illinois, has been engaged in the operation of
retail merchandise and grocery stores throughout the
United States. During the calendar year ending Decem-
ber 31, 1996, the Respondent, in conducting its busi-
ness operations, derived gross revenues in excess of
$500,000 and purchased and received at its Bradley, Il-
linois facility goods valued in excess of $50,000 di-
rectly from points outside the State of Illinois.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 14, 1997, the
Union was certified on May 22, 1997, as the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
All full time and regular part time meat cutters,
perishable service associates (PSAs) employed in
the meat/seafood department, meat wrappers and
seafood associates employed by the Employer at
its store located at 990 North Kenzie, Bradley, Il-
linois; but excluding all other employees, man-
agers, office clericals, 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
About June 11, 1997, the Union requested the Re-
spondent to bargain, and, since about June 17, 1997,
the Respondent has failed and refused. We find that
this failure and refusal constitutes an unlawful 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 June 17, 1997,
to bargain with the Union as the exclusive collective-
bargaining representative of employees in the appro-
priate 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.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.’’
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, KMart Corporation d/b/a Super KMart
Center, Bradley, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Food and Com-
mercial Workers Union, Local 1540, Chartered by the
United Food and Commercial Workers International
Union, AFL–CIO as the exclusive bargaining rep-
resentative 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 full time and regular part time meat cutters,
perishable service associates (PSAs) employed in
the meat/seafood department, meat wrappers and
seafood associates employed by the Employer at
its store located at 990 North Kenzie, Bradley, Il-
linois; but excluding all other employees, man-
agers, office clericals, guards and supervisors as
defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Bradley, Illinois, copies of the attached
notice marked ‘‘Appendix.’’1 Copies of the notice, on
forms provided by the Regional Director for Region
33, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since June 30, 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. September 11, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
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 Union, Local 1540, Char-
tered by the United Food and Commercial Workers
International Union, AFL–CIO as the exclusive rep-
resentative 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:
3SUPER KMART CENTER
All full time and regular part time meat cutters,
perishable service associates (PSAs) employed in
the meat/seafood department, meat wrappers and
seafood associates employed by us at our store lo-
cated at 990 North Kenzie, Bradley, Illinois; but
excluding all other employees, managers, office
clericals, guards and supervisors as defined in the
Act.
KMART CORPORATION D/B/A SUPER
KMART CENTER (BRADLEY, ILLINOIS)