Dolgencorp, LLC

National Labor Relations Board - Board Decisions

Dec 11, 2018

367 NLRB No. 48 (N.L.R.B. 2018)

367 NLRB No. 48
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.
Dolgencorp, LLC. and United Food and Commercial
Workers, Local 655. Case 14–CA–223328
December 11, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on July 6, 2018,
by United Food and Commercial Workers, Local 655
(the Union), the General Counsel issued the complaint on
July 20, 2018, alleging that Dolgencorp, LLC (the Re-
spondent) has violated Section 8(a)(5) and (1) of the Act
by refusing the Union’s request to recognize and bargain
with it following the Union’s certification in Case 14–
RC–209845. (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(d).
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer, admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On August 7, 2018, the General Counsel filed a Mo-
tion for Summary Judgment. On August 9, 2018, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification of repre-
sentative on the basis of its contentions, raised and re-
jected in the underlying representation proceeding, that
the certification was improper because the Union’s un-
lawful conduct tainted and invalidated the election re-
sults.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We

1 Chairman Ring is recused and took no part in the consideration of
this case.
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair 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 has been a Ken-
tucky limited liability company with a facility located in
Auxvasse, Missouri, and has been engaged in the retail
sale of food, snacks, health and beauty aids, cleaning
supplies, family apparel, housewares, and seasonal
items.2
In conducting its operations during the 12-month peri-
od ending June 30, 2018, the Respondent purchased and
received at its Auxvasse, Missouri facility goods valued
in excess of $50,000 directly from points outside the
state of Missouri and derived gross revenues in excess of
$500,000.
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
Following the representation election held on Decem-
ber 8, 2017, the Union was certified3 on March 23, 2018,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full-time and regular part-time Lead Sales Associ-
ates and Sales Associates employed by the Employer at
its 525 East Harrison Street, Auxvasse, MO 65231 fa-
cility, EXCLUDING office clerical employees, man-
agers, supervisors, temporary employees, confidential
employees and professional employees as defined in
the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.

2 In its answer, the Respondent denies the allegation that at all mate-
rial times it has been a Kentucky corporation, asserting instead that it is
a Kentucky limited liability company. Because the General Counsel’s
motion for summary judgment states that the Respondent is a limited
liability company, we find that the Respondent’s denials do not raise
any issues of fact warranting a hearing.
3 By unpublished order dated June 21, 2018, the Board denied the
Respondent’s request for review.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
B. Refusal to Bargain
By email dated June 27, 2018, the Union requested
that the Respondent bargain collectively with it as the
exclusive collective-bargaining representative of the unit
employees. By email dated July 5, 2018, the Respondent
refused to do so. Since June 27, 2018, the Respondent
has failed and refused to bargain with the Union.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since June 27, 2018, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit, the Respondent has engaged in unfair la-
bor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 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 bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Dolgencorp, LLC, Auxvasse, Missouri, 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 655, as the
exclusive collective-bargaining representative of the em-
ployees in the bargaining 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 exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time Lead Sales Associ-
ates and Sales Associates employed by the Employer at
its 525 East Harrison Street, Auxvasse, MO 65231 fa-
cility, EXCLUDING office clerical employees, man-
agers, supervisors, temporary employees, confidential
employees and professional employees as defined in
the Act.
(b) Within 14 days after service by the Region, post at
its facility in Auxvasse, Missouri, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 14,
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,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Re-
spondent at any time since June 27, 2018.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 14 a sworn certifi-
cation 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. December 11, 2018
______________________________________
Lauren McFerran, Member

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DOLGENCORP, LLC 3
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, 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 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
activities.
WE WILL NOT fail and refuse to recognize and bargain
with the United Food and Commercial Workers, Local
655 (the Union) as the exclusive collective-bargaining
representative of our 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
listed above.
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 fol-
lowing appropriate bargaining unit:
All full-time and regular part-time Lead Sales Associ-
ates and Sales Associates employed by us at our 525
East Harrison Street, Auxvasse, MO 65231 facility,
EXCLUDING office clerical employees, managers,
supervisors, temporary employees, confidential em-
ployees and professional employees as defined in the
Act.
DOLGENCORP, LLC
The Board’s decision can be found at
www.nlrb.gov/case/14-CA-223328 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.