United Super

National Labor Relations Board - Board Decisions

Jul 13, 1981

256 N.L.R.B. 1186 (N.L.R.B. 1981)

1186 I)ECISIONS OF NATIONAL LAB()R RELATIONS BOARD
40 and 7 United Super, Inc. d/b/a United Super and
United Food and Commercial Workers Local
No. 782. Cases 17-CA-9962 and 17-CA-10011
July 13, 1981
DECISION AND ORDER
Upon charges filed on October 8, 15, and 30 and
November 3 and 26, 1980,1 by United Food and
Commercial Workers Local No. 782, herein called
the Union, and duly served on 40 and 7 United
Super, Inc. d/b/a United Super, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 17, issued complaints on November 7
and December 4 against the Respondent, alleging
that the Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1), (3), (5), and
8(d) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charges
and complaints and notice of hearing before an ad-
ministrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaints allege in substance that the Respondent
violated Sections 8(a)(1), (3), (5), and 8(d) of the
Act by: (1) threatening to close its facility unless a
pending grievance was withdrawn; (2) threatening
employees with discharge because of pending
grievances; (3) directing an employee to contact
the Union and request the Union to withdraw a
pending grievance and renegotiate the current col-
lective-bargaining agreement; (4) bypassing the
Union and dealing directly with the employees in
the unit by soliciting them to enter into individual
employment contracts; (5) refusing to abide by the
collective-bargaining agreement; (6) discriminatori-
ly discharging employees because of their union ac-
tivity and failing to reinstate them to their former
positions or substantially equivalent positions of
employment.
On April 10, 1981, counsel for the General
Counsel filed directly with the Board a motion to
transfer the proceeding to the Board for summary
judgment based on the fact that the Respondent's
two letters fail to comport with Section 102.20 of
the Board's Rules and Regulations requiring that
Respondent "specifically admit, deny, or explain
each of the facts alleged in the complaint . . " In
its answer the General Counsel has attached to its
motion, as Exhibits B and D, two letters from the
Respondent stating that the charges are false and
that the only reason for the layoffs was a "matter
of economics." Subsequently, on April 15, 1981,
t All dates herein 1980, unless otherwise indicated.
256 NLRB No. 181
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. The Respondent did
not file 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
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The Respondent's letters merely stating that the
charges are false and that the layoffs were caused
by a "matter of economics" do not comport with
Section 102.20.2 Nor has the Respondent filed a re-
sponse to the Notice To Show Cause.
In view of the Respondent's failure to file an
answer which comports with the Board's Rules
and Regulations, and no other good cause having
been shown therefor, the allegations of the com-
plaints are deemed admitted and are found to be
true. Accordingly, we grant the Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
40 and 7 United Super, Inc. d/b/a United Super
is a Missouri corporation engaged in the retail sale
of groceries and related items at its facility located
at 812 West 40 Highway, Blue Springs, Missouri.
The Respondent's annual gross volume of business
at the facility exceeds $500,000 and it annually pur-
chases goods or services valued in excess of
$10,000 directly from suppliers located outside the
State of Missouri.
2 See Lloyd's Laundry & Dry Cleaning, 250 NLRB 1369 (1980).
UNITED SUPER 1 87
We find, on the basis of the foregoing, that the
Respondent 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 effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVEI)
United Food and Commercial Workers Local
No. 782 is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. The Unit
The Independent Food Stores (herein the Asso-
ciation) has been an organization composed of em-
ployees engaged in the retail sale of groceries and
related items, and which exists for the purpose,
inter alia, of representing its employer-members in
negotiating and administering collective-bargaining
agreements with the Union. The Respondent, at all
times material, has been and is an employer-
member of the Association.
The following employees constitute a unit appro-
priate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act:
All employees employed by the employer-
members of the Association, including the Re-
spondent, working in the present and future
retail establishments of the respective employ-
er-members of the Association situated within
Jackson, Clay, Platte and Cass Counties, Mis-
souri, and Johnson and Wyandotte Counties,
Kansas, engaged in handling or selling mer-
chandise or performing other services inciden-
tal or related thereto, excluding supervisory
employees within the meaning of the Act, and
employees whose work is exclusively and
wholly performed within the meat depart-
ments of the retail establishments.
B. The Representative Status of the Union
The Union is now, and has been, the exclusive
bargaining representative of the employees in the
above-described unit within the meaning of Section
9(a) of the Act and the Union has been recognized
as such representative by the Respondent. Such
recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of
which is effective by its terms for the period May
7, 1978, through May 9, 1981.
C. The Violations
On or about September 24 and 30 the Respond-
ent, acting through James L. Choplin, did: (I)
threaten its employees with closure of the facility
unless a pending grievance filed by an employee
with the Union was withdrawn; (2) on or about
September 30 and October 3 threaten its employees
with discharge because of pending grievances filed
with or by the Union; (3) on or about September
30 directed an employee to call the Union and so-
licit it to withdraw a pending grievance and re-
negotiate the current collective-bargaining agree-
ment.
On or about July 24, the Respondent, acting
through James L. Choplin, bypassed the Union and
dealt directly with its employees in the above-de-
scribed unit by soliciting employees to enter into
individual employment contracts.
Since on or about August 3, the Respondent has
refused to abide by the collective-bargaining agree-
ment.
On or about the following dates the Respondent
laid off or terminated the employees listed below
because they joined, supported, or assisted the
Union, and engaged in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, and in order to discourage em-
ployees from engaging in such activities or other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection. The
employees are:
Betty Powers August 20
Aileen DeHart September 13
Tom Arnold September 19
Michael Martin September 19
Ray DeHart October 3
Since on or about October 3, the Respondent has
failed and refused, and continues to fail and refuse,
to reinstate Ray DeHart to his former position of
employment.
Accordingly, we find that by the aforesaid con-
duct found above the Respondent has interfered
with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the
exercise of the rights guaranteed them under Sec-
tion 7 of the Act, and has discriminated in regard
to the hire and tenure and terms and conditions of
employment of the employees listed above, thereby
discouraging membership in a labor organization,
and thereby has engaged in unfair labor practices
affecting commerce within the meaning of Sections
8(a)(l) and (3) and 2(6) and (7) of the Act.
Additionally, we find that by the aforesaid con-
duct found above the Respondent has failed and re-
fused, and is failing and refusing, to bargain collec-
tively and in good faith with the Union as the ex-
clusive representative of the employees in the ap-
propriate unit, and that, by such conduct, the Re-
UNITED SUPER 11
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Sections
8(a)(5) and (1) and 8(d) and 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with its
operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, 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 the Respondent has engaged
in and is engaging in certain unfair labor practices,
we shall order that it cease and desist therefrom
and take certain affirmative actions which are nec-
essary to effectuate the policies of the Act.
Having found that the Respondent discriminator-
ily laid off or terminated Betty Powers, Aileen
DeHart, Tom Arnold, Michael Martin, and Ray
DeHart it will be ordered that the Respondent
offer those employees immediate and full reinstate-
ment to their former positions or, if such positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to seniority or other rights
and privileges, and make them whole for any loss
of earnings they may have suffered as a result of
the discrimination against them. Any backpay
found to be due shall be computed in accordance
with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), plus interest as set
forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962). Florida Steel Corporation, 231 NLRB
651 (1977),3 and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
As the unfair labor practices committed by the
Respondent strike at the very heart of employee
rights safeguarded by the Act, it shall be ordered
that the Respondent be placed under a broad order
to cease and desist from in any manner infringing
upon the rights of employees guaranteed in Section
7 of the Act. See Hickmott Foods, Inc., 242 NLRB
1357 (1979).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
a Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Olympic Medtal Corporation, 250
NLRB 146 (1980).
CONCLUSIONS OF LAW
1. 40 and 7 United Super, Inc. d/b/a United
Super is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Food and Commercial Workers Local
No. 782 is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees employed by the employer-
members of the Association, including the Re-
spondent, working in the present and future retail
establishments of the respective employer-members
of the Association situated within Jackson, Clay,
Platte and Cass Counties, Missouri, and Johnson
and Wyandotte Counties, Kansas, engaged in han-
dling or selling merchandise or performing other
services incidental or related thereto, excluding su-
pervisory employees within the meaning of the
Act, and employees whose work is exclusively and
wholly performed within the meat departments of
the retail establishments, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The above-named labor organization has been
and now is the exclusive bargaining representative
of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By the acts and conduct described in section
III, C, above, the Respondent has interfered with,
restrained, and coerced, and is interfering with, re-
straining, and coercing, employees in the exercise
of their rights guaranteed in Section 7 of the Act,
and the Respondent thereby has been engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(l) of the Act.
6. By the acts and conduct described in section
III, C, above, the Respondent has discriminated,
and is discriminating, in regard to the hire or
tenure or terms or conditions of employment of its
employees, thereby discouraging membership in a
labor organization, and the Respondent thereby has
been engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
7. By the acts and conduct described in section
III, C, above, the Respondent has failed and re-
fused, and is failing and refusing, to bargain collec-
tively and in good faith with the above-named
labor organization as the exclusive bargaining rep-
resentative of all the employees of the Respondent
in the appropriate unit, and the Respondent has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(1)
and (5) and 8(d) of the Act.
UNITED SUPER 1189
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 the Respondent,
40 and 7 United Super, Inc. d/b/a United Super,
Blue Springs, Missouri, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with closure of its fa-
cility unless pending grievances are withdrawn.
(b) Threatening employees with discharge be-
cause of pending grievances.
(c) Directing employees to contact the Union
and solicit the Union to withdraw pending griev-
ances and renegotiate the current collective-bar-
gaining agreement.
(d) Bypassing the Union and dealing directly
with employees in the appropriate unit by soliciting
them to enter into individual employment con-
tracts.
(e) Refusing to abide by the collective-bargaining
agreement.
(f) Discouraging membership in United Food
and Commercial Workers Local No. 782 by dis-
charging, terminating, or otherwise discriminating
against employees because of their union member-
ship or activities.
(g) In any other manner interfering with, re-
straining, 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) Offer Betty Powers, Aileen DeHart, Tom
Arnold, Michael Martin, and Ray DeHart immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed,
and make them whole for any loss of earnings they
may have suffered by reason of the discrimination
against them in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the following appropriate unit
over any question arising under the collective-bar-
gaining agreement or, if that agreement has ex-
pired, bargain in good faith with the above-named
labor organization 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:
All employees employed by the employer-
members of the Association, including the Re-
spondent, working in the present and future
retail establishments of the respective employ-
er-members of the Association situated within
Jackson, Clay, Platte and Cass Counties, Mis-
souri, and Johnson and Wyandotte Counties,
Kansas, engaged in handling or selling mer-
chandise or performing other services inciden-
tal or related thereto, excluding supervisory
employees within the meaning of the Act, and
employees whose work is exclusively and
wholly performed within the meat depart-
ments of the retail establishments.
(d) Post at its Blue Springs, Missouri, facility
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 17, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
4 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 bN
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOPYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with clo-
sure of our facility unless pending grievances
are withdrawn.
UNITED SUPER jgq
1190 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
WE WILL NOT threaten employees with dis-
charge because of pending grievances.
WE WILL NOT direct employees to contact
the United Food and Commercial Workers
Local No. 782 and solicit the Union to with-
draw pending grievances and renegotiate the
current collective-bargaining agreement.
WE WILL NOT bypass the above-named
labor organization by dealing directly with
employees in the unit described below by so-
liciting them to enter into individual employ-
ment contracts.
WE WILL. NOT refuse to abide by the collec-
tive-bargaining agreement.
WE WILL NOT discourage membership in the
above-named labor organization by discharg-
ing, terminating, or otherwise discriminating
against employees because of their union mem-
bership or activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in exercise
of rights guaranteed under Section 7 of the
Act.
WE WILL offer Betty Powers, Aileen
DeHart, Tom Arnold, Michael Martin, and
Ray DeHart immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges previously enjoyed, and
WE WILL make them whole for any loss of
earnings they may have suffered by reason of
our discrimination against them.
WE WILL, upon request, bargain with the
above-named labor organization, as the exclu-
sive representative of all employees in the bar-
gaining unit described below, over any ques-
tion arising under the collective-bargaining
agreement or, if that agreement has expired,
WE WILL bargain in good faith with the
above-named labor organization with respect
to rates of pay, wages, hours and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a signed agreement. The bargaining
unit is:
All employees emp!oyed by the employer-
members of the Independent Food Stores
Association, including 40 and 7 United
Super, Inc. d/b/a United Super, working in
the present and future retail establishments
of the respective employer-members of the
Association situated within Jackson, Clay,
Platte, and Cass Counties, Missouri, and
Johnson and Wyandotte Counties, Kansas,
engaged in handling or selling merchandise
or performing other services incidental or
related thereto, excluding supervisory em-
ployees within the meaning of the Act, and
employees whose work is exclusively and
wholly performed within the meat depart-
ments of the retail establishments.
40 AND 7 UNITED SUPER, INC. D/B/A
UNITED SUPER