Petty's Fine Foods, Inc.

National Labor Relations Board - Board DecisionsMar 3, 1981

254 N.L.R.B. 1033 (N.L.R.B. 1981)

Petty'ir Foods, L d 73R, and C)mmercial F'L-CIO-CJ.,C. Case 73R, 8(a)(5) i d hcrein compla!nt commeitce 8(a)(5) 2(6) Itelations imd complaint 16- RC-810;!, c:ollective-bargaining and i ~ d collectivcdy r~presentative, :.n December s ii: (!ase violat- Oflicial representation Caw 16-RC-8102. Secs. nnd 102.6%) 01' 8. an S& L W Elecm~sjvtemr Inc.. (1967). F.2d Soldrn Beverage F.2d (3. Intertype Penello, F.Supp. (D.C.Va. 1967): Follett Corp.. (1967), F.2d !kc. 9(d) single- 8(a)(5) ~ roceed ing .~ a See Pirlsbugh Glass Co. N.L.R.B., Secs. 102.67(0 102.69(c). 1033 PETTY'S FINE FOODS, INC. Fine Inc. and Retail Clerks Union affiliated with United Food Workers International Union, A 6-CA-9432 March 3, 1981 DECISION AND ORDER Upon a charge filed on October 10, 1980, by Retail Clerks Union Local a f f i l i a t with United Food and Commercial Workers Internation- al Union. AFL-CIO-CLC, herein called the Union, duly served on Petty's Fine Foods, Inc., called Respondent, the General Coun- sel of the National Labor Relations Board, by the Acting Regional Director for Region 16, issued a on October 30, 1980, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting within the meaning of Section and (1) and Section and (7) of the National Labor 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 proceeding. With respect to the unfair labor practices, the alleges in substance that on September 22, 1980, following a Board election in Case the Union was duly certified as the ex- clusive representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about October 9, 1980, at all times thereafter, Respondent has refused, continues to date to refuse, to bargain with the Union as the exclusive bar- gaining although the Union has re- quested and is requesting it to do so. On November 12, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations the complaint. On 1, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, submitting, in effect, that Re- spondent ; endeavoring to relitigate Case 16-RC- 8102 in this proceeding; that Respondent admitted its refusal to recognize and bargain with the Union; and that raises no defenses which were not liti- gated in 16-RC-8102. She therefore moved that the Motion for Summary Judgement be grant- ed and that the Board find that Respondent notice is taken of the record in the proceed- ing. as the term "record is defined in 102.68 the Board's Rules and Regulations, Series amended. 166 NLRB 938 enfd. 388 683 (4th Cir. 1968); Age C a . 167 NLRB 151 (1967). enfd. 415 26 (5th 1969); Co. v. 269 573 164 NLRB 378 enfd. 397 91 (7th Cir. 1968); of the NLRA, as amended. 254 NLRB No. 131 ed Section and (1) of the Act. Subsequently, on December 9, 1980, the Board issued an order transferring the proceeding to the Board and a Notice T o Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent in effect attacks the certification of the Union as the bargaining representative of the employees in the unit found appropriate by asserting that the store unit found appropriate by the Board is inap- propriate and that the only appropriate unit is one including the employees in three of its stores. Our review of the record, including that in Case 16-RC-8102, shows that, following a hearing in that representation proceeding, the Acting Region- al Director for Region 16 issued a Decision and Direction of Election in which he ordered an elec- tion among the employees in the unit he found ap- propriate. Thereafter, the Board granted Respon- dent's request for review of the Decision and Di- rection of Election. After considering the entire record, the Board affirmed the Decision and Direc- tion of Election. It thus appears that Respondent's contentions were considered by the Board and re- jected in that proceeding and, therefore, may not be reconsidered here. 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 is not entitled to relitigate issues which were or could have been litigated in a prior representation 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 allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: Plate v. 313 U.S. 146, 162 (1941); Rules and Regulations of the Board. and sell- in,3 T~dsa, th~: $500,000. During $50,000 ou:side 'We 2(6) tha: assert 11. 73R, Unii:ed L1nion, 2(5) 111. I. purposes 9(b) A11 de- it$; T~ l sa , ofice hfay conduc~.ed lJnion Septetmber 9(a) 8(a)(5) 111, 8(a)(5) a p Inc., Compcmy (1962), DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. THE BUSINESS OF RESPONDENT The Respondent, Petty's Fine Foods, Inc., an Oklahoma corporation, is engaged in the retail of grocery and related items with locations in Oklahoma. During the 12 months preceding issuance of the complaint, Respondent had a gross volume of business exceeding the same period, it received goods valued in excess of directly from suppliers located the State of Oklahoma. 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 and (7) of the Act, and it will effectuate the policies of the Act to jurisdiction herein. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local affiliated with Food and Commercial Workers Internation- al AFL-CIO-CLC, is a labor organization within the meaning of Section of the Act. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining within the meaning of Section of the Act: regular full-time and part-time employees including stockers, checkers, package boys, liverymen, bakery sales employees, delicates- sen clerks, produce employees and assistant store manager employed by the Employer at retail store located at 5800 South Lewis, Oklahoma, but excluding store manag- ers, meat department employees, bakery pro- duction employees, clerical employees, guards and supervisors as defined in the Act. 2. The certification On 14, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot election under the supervision of the Regional Director for Region 16, designated the Union as their representative for the purpose of collective bargaining with Respondent. The was certified as the collective-bar- gaining representative of the employees in said unit on 22, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 22, 1980, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 9, 1980, and continu- ing at all times thereafter to date, Respondent has refused, 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. Accordingly, we find that Respondent has, since October 9, 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, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 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- structing 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 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 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 Compny, 136 NLRB 785 (1962); Commerce d /b /a Lamar Hotel, 140 NLRB 226, 229 enfd. 328 F.2d 6(X) 1964), Burnet1 Comtruction (1964), F.2d i:.~ 2(6) Re.ail 73R. United 1 7 4 workers Union, tile 2(5) includinl; deliverylnen, p-oduce errployed 5800 mc8at supei~visors nlthin 9(b) Sincc: exclur'ive 9(a) time:., engage~j withill 8(a)(5) th~: intelfering Sec:tion meaning 8(a)(l) 2(6) 73R, AFL- de- 5800 & 5800 "Appendi~."~ A ~ w l s , redinn -, pursuant t,:, section lqc) of the ~ ~ t i ~ ~ ~ l ~~b~~ of ~ a t i o k l ~ i b o r t3oa;d" shall "Fasted P ~ U - Act, as Labor order of the National Labor Board." 1421 PETTY'S FINE FOODS. INC. 1035 (5th Cir. cert. denied 379 U.S. 817; Company, 149 NLRB 1419, enfd. 350 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: 1. Petty's Fine Foods, Inc., is an employer en- gaged commerce within the meaning of Section and (7) of the Act. 2. Clerks Union Local affiliated with and Commercial Internation- al AFL-CIO-CLC, is a labor organization within meaning of Section of the Act. 3. All regular full-time and part-time employees, stockers, checkers, package boys, bakery sales employees, delicatessen clerks, employees, and assistant store man- agers by Respondent employed by Re- spondent at its retail store located at South Lewis, Tulsa, Oklahoma, but excluding store man- agers, department employees, bakery produc- tion employees, office clerical employees, guards and as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining the meaning of Section of the Act. 4. September 22, 1980, the above-named labor organization has been and now is the certified and representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section of the Act 5. By refusing on or about October 9, 1980, and at all thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has in and is engaging in unfair labor prac- tices the meaning of Section of the Act. 6. By aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is with, restraining, and coercing, employees in the exercise of the rights guaranteed them in 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the of Section of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section and (7) of the Act. ORDER Relations amended, the National Re- lations Boarcl hereby orders that the Respondent, Petty's Fine Foods, Inc., Tulsa, Oklahoma, its offi- cers, 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 Retail Clerks Union Local affiliated with United Food and Commercial Workers International Union, CIO-CLC, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All regular full-time and part-time employees, including stockers, checkers, package boys, liverymen, bakery sales employees, delicates- sen clerks, produce employees and assistant store manager employed by the Employer at its retail store located at South Lewis, Tulsa, Oklahoma, but excluding store manag- ers, meat department employees, bakery pro- duction employees, office 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 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: (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) Post at its store at South Lewis, Tulsa, Oklahoma, copies of the attached notice marked Copies of said notice, on forms pro- vided by the Regional Director for Region 16, 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. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this In the event that this Order is enforced by a Judgment of a United States Court of the words in the notice "Posted hv Order the Relations read ant to a Judgment of the United States Court of Appeals Enforcing an Relations An 73R, affiliated deliverymen, 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order, what steps have been taken to comply here- with. APPENDIX NOTICE T o EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD 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 Retail Clerks Union Local with United Food and Commercial Workers International Union, AFL-CIO-CLC, as the exclusive representative of the employees in the bargaining unit described below. 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 represen- tative 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 regular full-time and part-time employ- ees, including stockers, checkers, package boys, bakery sales employees, delicatessen clerks, produce employees and assistant store manager employed by the Employer at its retail store located at 5800 South Lewis, Tulsa, Oklahoma, but exclud- ing store managers, meat department em- ployees, bakery production employees, office clerical employees, guards and super- visors as defined in the Act.