The Stop & Shop Companies, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 6 (N.L.R.B. 1976)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Stop & Shop Companies, Inc., Medi-Mart Divi-
sion and United Pharmacists Guild Local 100, char-
tered by Retail Clerks International Association,
AFL-CIO. Case 1-CA-11533
June 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on March 16, 1976, by United
Pharmacists Guild Local 100, chartered by Retail
Clerks International Association, AFL-CIO, herein
called the Union, and duly served on The Stop &
Shop Companies, Inc., Medi-Mart Division, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 1, issued a complaint and notice
of hearing on March 29, 1976, 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)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an Administra-
tive Law Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the re-
cord shows, in substance, that on December 30, 1975,
following a Board election in Case 1-RC-14049, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; ' and that, commenc-
ing on or about March 5, 1976, and at all times there-
after, 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
April 8, 1976, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. The Respondent admits
all of the factual allegations of the complaint, except
those paragraphs which relate to the appropriateness
of the unit and the resulting certification in the un-
derlying representation proceeding, Case 1-RC-
14049.
'Official notice is taken of the record in the representation proceeding,
Case I-RC-14049, 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 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151 (1967), 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 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec
9(d) of the NLRA, as amended
On April 21, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment, with exhibits attached, submitting,
in effect, that Respondent's answer to the complaint
raises no issues which were not previously considered
and decided, and requesting the Board to grant the
Motion for Summary Judgment. Subsequently, on
April 28, 1976, 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 memorandum in opposition to the
Motion for Summary Judgment and brief.
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
As reflected above, the Respondent's answer to the
complaint admits all of the factual allegations there-
in, including its refusal to recognize and bargain with
the Union which had been certified as the bargaining
representative of the employees described in the
complaint. The Respondent further admits that its
refusal-to-bargain position is taken to obtain judicial
review.2 In its answer to the complaint, as well as in
its opposition to the Motion for Summary Judgment
and brief,3 the Respondent attacks the appropriate-
ness and scope of the unit as found by the Regional
Director in his Decision and Direction of Election, in
which he concluded that pharmacy managers were
not supervisors and included them in the appropriate
unit.4 Respondent now asserts that such employees
are supervisors and should be excluded from the
unit. By this assertion, and more specifically by its
denials, in whole or in part, of the allegations of the
complaint and the arguments propounded in the
Respondent's opposition to the Motion for Summary
Judgment, the Respondent is attempting to relitigate
the same issues which it raised in the representation
proceeding, Case 1-RC-14049.
2 By letter dated March 5, 1976, the attorney for Respondent notified the
attorney for the Union that it was the Respondent 's intention to seek judi-
cial review by the court of appeals of the Board's determination concerning
the appropriateness of the unit and that it would not bargain until the court
affirmed the Board 's determination
3 The brief is the same as Respondent previously submitted in the prior
representation proceeding
By telegraphic order dated December 15, 1975, the Board denied the
Respondent 's request for review of the Regional Director's Decision and
Direction of Election as it raised no substantial issues warranting review
Although Chairman Murphy agreed to deny review, the Order noted that
she would vote pharmacy managers subject to challenge
225 NLRB No. 2
STOP & SHOP COMPANIES, INC 7
In its opposition to the Motion for Summary Judg-
ment the Respondent asserts that the Board, when
considering Respondent's request for review, should
have had before it the transcript of hearing held on
October 16, 1975, and that the Board's denial was
based solely on an examination of the Regional
Director's decision. The Board's Rules and Regula-
tions do not require that the Board have before it a
transcript of hearing in ruling on a request for re-
view.5 However, when review has been granted the
Board will review the transcript.' Thus, after review-
ing the Regional Director's decision and Respon-
dent's request for review and brief, including the
transcript citations and the arguments propounded
therein, the Board, on such basis, denied Respon-
dent's request as it raised no substantial issues war-
ranting review.'
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor are
there any special circumstances 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 pro-
ceeding. We shall, accordingly, grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
of Suffolk, and Commonwealth of Massachusetts,
and is now and continuously has been engaged in the
operation of retail establishments in Connecticut and
other States where it sells a wide variety of retail mer-
chandise, including patent medicine and other health
care products. The Respondent operates a registered
pharmacy department within each store.
Respondent in the course and conduct of its busi-
ness causes , and continuously has caused at all times
material herein, large quantities of drug and health
care products and other merchandise to be pur-
chased and transported in interstate commerce from
and through various States of the United States other
than the State of Connecticut. Annually, Respon-
dent, in the course and conduct of its business opera-
tions, purchased, transferred, and delivered to its
Connecticut stores drug and health products and
other merchandise of which merchandise valued in
excess of $50,000 was shipped to its Connecticut
stores directly from States of the United States other
than the State of Connecticut. Annually Respondent
has gross retail sales in excess of $500,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 assertjuris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
United Pharmacists Guild Local 100, chartered by
Retail Clerks International Association, AFL-CIO,
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
Respondent is and has been at all times material
herein a corporation duly organized under and ex-
isting by virtue of the laws of the Commonwealth of
Massachusetts. At all times material herein, Respon-
dent has maintained its principal office and place of
business at 393 D Street in the city of Boston, county
5 Sec 102 67(d) states in part "Any request for review must be a self-
contained document enabling the Board to rule on the basis of its contents
without the necessity of recourse to the record "
6 See Sec 102 67(g), Rules and Regulations, Series 8, as amended
7 See In 4, supra
8 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c)
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All registered pharmacists, including pharmacy
managers, employed in the Respondent's Medi-
Mart Division stores located at Wethersfield,
Hartford, Simsbury, Orange, Darian, Williman-
tic, Branford, Westport, Stratford, and Water-
ford, Connecticut, but excluding all other em-
ployees, pharmacy interns, clerical employees,
guards and supervisors as defined in the Act.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On December 19, 1975, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 1, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on December 30, 1975, 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 March 2, 1976, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about March 5, 1976, 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.
Accordingly, we find that the Respondent has,
since March 5, 1976, and at all times thereafter, re-
fused 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 prac-
tices 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 opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce 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 ap-
propriate 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 se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. The Stop & Shop Companies, Inc., Medi-Mart
Division, is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. United Pharmacists Guild Local 100, chartered
by Retail Clerks International Association, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All registered pharmacists, including pharmacy
managers, employed in the Respondent's Medi-Mart
Division stores located at Wethersfield, Hartford,
Simsbury, Orange, Darian, Willimantic, Branford,
Westport, Stratford, and Waterford, Connecticut,
but excluding all other employees, pharmacy interns,
clerical employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since December 30, 1975, the above- named la-
bor 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 March 5, 1976, 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 Re-
spondent in the appropriate unit, Respondent has en-
gaged 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.
STOP & SHOP COMPANIES, INC 9
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 Re-
lations Board hereby orders that Respondent, The
Stop & Shop Companies, Inc., Medi-Mart Division,
Boston, Massachusetts, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with United Pharmacists
Guild Local 100, chartered by Retail Clerks Interna-
tional Association, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All registered pharmacists, including pharmacy
managers, employed in the Respondent's Medi-
Mart Division stores located at Wethersfield,
Hartford, Simsbury, Orange, Darian, Williman-
tic, Branford, Westport, Stratford, and Water-
ford, Connecticut, but excluding all other em-
ployees, pharmacy interns, clerical employees,
guards and 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) 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Medi-Mart Division stores located
at Wethersfield, Hartford, Simsbury, Orange, Dari-
an, Willimantic, Branford, Westport, Stratford, and
Waterford, Connecticut, copies of the attached no-
tice marked "Appendix." 9 Copies of said notice, on
forms provided by the Regional Director for Region
1, after being duly signed by Respondent's represen-
tative, 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.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
9In 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Unit-
ed Pharmacists Guild Local 100, chartered by
Retail Clerks International Association, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
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 represen-
tative of all employees in the bargaining unit de-
scribed 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 registered pharmacists, including pharma-
cy managers, employed in the Respondent's
Medi-Mart Division stores located at Weth-
ersfield, Hartford, Simsbury, Orange, Darian,
Willimantic, Branford, Westport, Stratford,
and Waterford, Connecticut, but excluding all
other employees, pharmacy interns, clerical
employees, guards and supervisors as defined
in the Act.
THE STOP & SHOP COMPANIES, INC.,
MEDI-MART DIVISION