Dillon Companies, Inc. d/b/a King Soopers

National Labor Relations Board - Board Decisions

May 23, 2019

367 NLRB No. 141 (N.L.R.B. 2019)

367 NLRB No. 141
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Dillon Companies, Inc. d/b/a King Soopers and United
Food and Commercial Workers Local 7. Case
27–CA–237098
May 23, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
This is a refusal-to-bargain case in which the Respond-
ent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on March 4, 2019, by
United Food and Commercial Workers Local 7 (the Un-
ion), the General Counsel issued the complaint on March
18, 2019, alleging that Dillon Companies, Inc. d/b/a King
Soopers (the Respondent) has violated Section 8(a)(5) and
(1) of the National Labor Relations Act by refusing the
Union’s request to bargain with it following the Union’s
certification in Case 27–RC–215705. (Official notice is
taken of the record in the representation proceeding as de-
fined in the Board’s Rules and Regulations, Secs. 102.68
and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).)
The Respondent filed an answer, admitting in part and
denying in part the allegations of the complaint, and as-
serting affirmative defenses.
On April 8, 2019, the General Counsel filed a motion
for summary judgment, and on April 11, 2019, the Board
issued a Notice to Show Cause why the motion should not
be granted. The Respondent filed an opposition to the
General Counsel’s motion for summary judgment and a
response to the Notice to Show Cause. The General Coun-
sel filed a reply to the Respondent’s opposition to the mo-
tion for summary judgment and a reply to the Respond-
ent’s opposition to the Notice to Show Cause.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent denies its refusal to bargain and con-
tests the validity of the certification on the basis of its con-
tention, raised and rejected in the underlying representa-
tion proceeding, that the certification is inappropriate be-
cause it would require the Respondent to bargain concern-
ing the delicatessen employees at Store No. 89 in a unit of

1 The Respondent argues that the parties had a decades-old agreement
that when a store opened in particular metropolitan areas, including
Broomfield, the meat department employees would be placed in the mul-
tistore unit of meat employees and the delicatessen and retail employees
meat department employees at Store Nos. 86, 89, and 118,
located in Broomfield, Colorado.1
All representation issues raised by the Respondent were
or could have been litigated in the prior representation pro-
ceeding. The Respondent does not offer to adduce at a
hearing any newly discovered and previously unavailable
evidence, nor does it allege any special circumstances that
would require the Board to reexamine the decision made
in the representation proceeding. We therefore find that
the Respondent has not raised any representation issue that
is properly litigable in this unfair labor practice hearing.
See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941).
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a Kansas
corporation with facilities and places of business in
Broomfield, Colorado (the Respondent’s Broomfield fa-
cilities), and has been engaged in the business of operating
retail grocery stores.
During the 12 months preceding the complaint, a repre-
sentative time period, the Respondent, in conducting its
operations, derived gross revenues in excess of $500,000
and purchased and received at its Broomfield facilities
goods valued in excess of $50,0002 directly from points
outside the State of Colorado.
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 organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
At all material times, Fred Woodward held the position
of the Respondent’s Total Rewards/Associate Relations
Manager and has been an agent of the Respondent within
the meaning of Section 2(13) of the Act.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act,
as part of an existing bargaining unit of all meat cutters,
apprentices, wrappers, butcher block sales persons, and
clean-up personnel in the meat market or markets owned
or operated by the Respondent in the metropolitan area of
Broomfield, Colorado (Store Nos. 86, 89, and 118):
would comprise a separate unit. This issue was litigated in the underly-
ing representation proceeding.
2 Although the complaint stated this amount as $5000, the parties
stipulated to the $50,000 figure in the representation proceeding.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time delicatessen depart-
ment employees employed by the Employer at Store No.
89, located in Broomfield, Colorado; excluding all other
employees, store manager, assistant store managers, of-
fice clerical employees, professional employees, guards,
and supervisors as defined in the Act.
Following a self-determination election held on May
11, 2018, the Regional Director on August 2, 2018, certi-
fied the Union as the exclusive collective-bargaining rep-
resentative of the unit as part of the above-referenced ex-
isting unit of meat cutters, apprentices, wrappers, butcher
block sales persons, and clean-up personnel in the meat
market or markets owned or operated by the Respondent
at Store Nos. 86, 89, and 118.3
At all times since August 2, 2018, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the unit as part of the existing
unit set forth above.
B. Refusal to Bargain
About November 27, 2018, the Union, by letter, re-
quested that the Respondent recognize it and bargain with
it as the exclusive collective-bargaining representative of
the unit as part of the existing bargaining unit set forth
above.
About December 6, 2018, by letter from Total Re-
wards/Associate Relations Manager Fred Woodward, the
Respondent refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(5)
and (1) of the Act. The above unfair labor practices of the
Respondent affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to recognize and bargain on request with the Union,

3 By unpublished Orders dated August 21 and November 20, 2018,
respectively, the Board denied the Respondent’s requests for review of
the Regional Director’s Decision and Direction of Election and her De-
cision and Certification of Results.
4 The General Counsel requests that the Board extend the certification
year pursuant to the Board’s decision in Mar-Jac Poultry Co., 136 NLRB
785 (1962). Such a remedy, however, is inappropriate where, as here,
the underlying representation proceeding involved a self-determination
and if an understanding is reached, to embody the under-
standing in a signed agreement.4
ORDER
The National Labor Relations Board orders that the Re-
spondent, Dillon Companies, Inc. d/b/a King Soopers,
Broomfield, Colorado, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
United Food and Commercial Workers Local 7 (the Un-
ion) as the exclusive collective-bargaining representative
of the delicatessen employees at Store No. 89 as part of
the existing unit.
(b) In any like or related manner interfering with, re-
straining, 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 exclusive
collective-bargaining representative of employees in the
following appropriate unit, as part of the existing unit of
all meat cutters, apprentices, wrappers, butcher block sales
persons, and clean-up personnel in the meat market or
markets owned or operated by the Respondent in the met-
ropolitan area of Broomfield, Colorado (Store Nos. 86, 89,
and 118):
All full-time and regular part-time delicatessen depart-
ment employees employed by the Respondent at Store
No. 89, located in Broomfield, Colorado; excluding all
other employees, store manager, assistant store manag-
ers, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Broomfield, Colorado, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
election. See Winkie Mfg. Co., 338 NLRB 787, 788 fn. 3 (2003), affd.
348 F.3d 254 (7th Cir. 2003); White Cap, Inc., 323 NLRB 477, 478 fn. 3
(1997) (citing cases).
5 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.”
DILLON COMPANIES, INC. D/B/A KING SOOPERS 3
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
December 6, 2019.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 27 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. May 23, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, 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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with United Food and Commercial Workers Local 7 (the
Union) as the exclusive collective-bargaining representa-
tive of our delicatessen employees at Store No. 89.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and con-
ditions of employment for our employees in the following
appropriate unit, as part of the existing unit of all meat cut-
ters, apprentices, wrappers, butcher block sales persons,
and clean-up personnel in the meat market or markets
owned or operated by the Respondent in the metropolitan
area of Broomfield, Colorado (Store Nos. 86, 89, and
118):
All full-time and regular part-time delicatessen depart-
ment employees employed by us at Store No. 89, located
in Broomfield, Colorado; excluding all other employees,
store manager, assistant store managers, office clerical
employees, professional employees, guards, and super-
visors as defined in the Act.
DILLON COMPANIES, INC. D/B/A KING SOOPERS
The Board’s decision can be found at
www.nlrb.gov/case/27-CA-237098 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.