Fred Meyer Stores, Inc.

National Labor Relations Board - Board Decisions

May 7, 2010

355 N.L.R.B. 179 (N.L.R.B. 2010)

FRED MEYER STORES, INC.
355 NLRB No. 30
179
Fred Meyer Stores, Inc. and United Food and Com-
mercial Workers Local 367, affiliated with
United Food and Commercial Workers Interna-
tional Union. Case 19–CA–32311
May 7, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on January 14, 2010, the
General Counsel issued the complaint on February 1,
2010, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
19–RC–15194. (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(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On February 18, 2010, the General Counsel filed a
Motion for Summary Judgment and Memorandum in
Support. On February 22, 2010, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. The Respondent filed a response. The General
Counsel filed a reply to the Respondent’s response.
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 has effectively admitted its refusal to
bargain,1 but contests the validity of the certification

1 The Respondent asserts that even though it is not obligated to do
so, it has been bargaining in good faith with the Union, as evidenced by
its willingness to meet and confer and its exchange of proposals. The
Respondent’s asserted “bargaining,” however, has consisted of reject-
ing a proposal made by the Union, proposing to hold the Union’s in-
formation request in abeyance, and proposing to delay bargaining until
the current contract expires or the question of the Board’s statutory
authority to issue decisions is resolved by the Supreme Court. Further,
the Respondent has consistently stated that it does not have any legal
obligation to bargain with the Union. In these circumstances, it is clear
that the Respondent’s purported bargaining, which is largely premised
on a future event, is conditional. Contrary to the Respondent, such
conduct does not constitute bargaining in good faith. See, e.g., Special-
ized Living Center, 286 NLRB 511 (1987), enfd. 879 F.2d 1442 (7th
Cir. 1989) (employer’s offer to “meet and confer” was conditional and
did not constitute offer to bargain in good faith where employer also
stated it had no legal obligation to recognize or bargain with the union);
Henry M. Hald High School Assn., 213 NLRB 463 (1974), enfd. mem.
based on its argument that the two-member Board lacked
the statutory authority to issue its Order denying the Re-
spondent’s request for review of the Regional Director’s
decision and direction of election in the underlying rep-
resentation proceeding.2
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
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). Accord-
ingly, we grant the Motion for Summary Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a State of Ohio corporation with an
office and place of business in Tacoma, Washington (the
University Place Store), is engaged in the retail grocery
business.
During the 12-month period preceding the issuance of
the complaint, a representative period, the Respondent, in
conducting its business operations described above, de-
rived gross revenues in excess of $500,000, and pur-

559 F.2d 1204 (2d Cir. 1977) (finding a failure to bargain in good faith
based in part on the respondent’s request to postpone bargaining until
the issuance of a pending state court decision).
2 The Respondent asserts in its response that it could not have previ-
ously raised its objection to the Board’s authority to issue a decision in
the representation proceeding, and that therefore the issue is properly
raised at this time and can be litigated in this unfair labor practice pro-
ceeding. Further, in its answer, the Respondent states that it intends to
preserve the arguments it raised in the representation proceeding until
the status of the two-member Board is conclusively determined. We
find no merit in the procedural aspect of the Respondent’s argument
because nothing precluded the Respondent from raising this issue in the
representation proceedings. We also find without merit the substantive
aspect of its argument. See, e.g., ADF, Inc., 355 NLRB No. 14, slip op.
at 1 fn. 1
In addition, the Respondent’s answer specifically denies, in part,
pars. 6(b) and (c) of the complaint, which allege that the Union was
certified to bargain on behalf of the voting group of Playland Depart-
ment employees at the Respondent’s University Place retail store in
Pierce County, Tacoma, Washington. The unit issue, however, was
litigated and resolved in the underlying representation proceeding.
Accordingly, to the extent that the Respondent’s denials of these allega-
tions can be construed as an attack on the unit, they do not raise any
litigable issues. See Alta Vista Regional Hospital, 352 NLRB 809, 809
fn. 3 (2008).
3 The Respondent’s motion to dismiss the complaint, its request for a
hearing before an administrative law judge, and its request for oral
argument are therefore denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
chased and received at its facility goods valued in excess
of $50,000 directly from points outside the State of
Washington.
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, United Food and
Commercial Workers Local 367, affiliated with United
Food and Commercial Workers International Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act:

All employees employed in [the Respondent’s] Com-
bination Food/Non-Food Checkstand Departments in
Pierce County and all future Combination Food/Non-
Food Checkstand Departments in Pierce County . . .
excluding the Department Manager and two Assistant
Department Managers.

Since at least 1990, and at all material times, based on
Section 9(a) of the Act, the Union has been the desig-
nated exclusive collective-bargaining representative of
the unit and, since then, has been recognized as such by
the Respondent. This recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which is effective from May 6, 2007, to May 1,
2010.
On June 17, 2009, in Case 19–RC–15194, a majority
of all regular full-time and regular part-time employees
employed in the Playland Department of the Respon-
dent’s University Place store, in a self-determination
election, designated and selected the Union as their rep-
resentative for the purposes of collective bargaining with
the Respondent, to be included in the unit.
On December 8, 2009, in Case 19–RC–15194, the Re-
gional Director issued a corrected certification of repre-
sentative certifying that the Union may bargain for the
voting group of Playland Department employees de-
scribed above as part of the unit of employees that it cur-
rently represents.
The following employees of the Respondent (the ex-
panded unit) constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All employees employed in [the Respondent’s] Com-
bination Food/Non-Food Checkstand Departments in
Pierce County and all future Combination Food/Non-
Food Checkstand Departments in Pierce County and all
regular full-time and regular part-time employees em-
ployed in the Playland Department of [the Respon-
dent’s] University Place store, located in Tacoma,
Washington; excluding the Department Manager and
two Assistant Department Managers in Pierce County
and all guards and supervisors in the University Place
store as defined by the Act.

The Union continues to be the exclusive collective-
bargaining representative of the unit employees in the ex-
panded unit under Section 9(a) of the Act.
B. Refusal to Bargain
On October 26, and on December 3 and 8, 2009, the
Union requested, in writing, that the Respondent meet
and bargain collectively with it as the exclusive collec-
tive-bargaining representative of the Playland Depart-
ment employees at its University Place Store. On No-
vember 5, 2009, and January 7, 2010, the Respondent, in
writing, informed the Union that it would not bargain
unconditionally with it as the exclusive collective-
bargaining representative of the Playland Department
employees at its University Place store. We find that this
failure and refusal constitutes an unlawful failure and
refusal to bargain in violation of Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By refusing since November 5, 2009, to bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the Playland Department at its
University Place Store, the Respondent has engaged in
unfair labor 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.
ORDER
The National Labor Relations Board orders that the
Respondent, Fred Meyer Stores, Inc., Tacoma, Washing-
ton, 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 367, affili-
ated with United Food and Commercial Workers Interna-
tional Union, as the exclusive bargaining representative
FRED MEYER STORES 181
of the employees employed by the Respondent in the
Playland Department at its University Place Store.
(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 representative of the employees employed in the
Playland Department of its University Place, Tacoma,
Washington store as part of the following appropriate
unit on terms and conditions of employment, and if an
understanding is reached, embody the understanding in a
signed agreement:

All employees employed in [the Respondent’s] Com-
bination Food/Non-Food Checkstand Departments in
Pierce County and all future Combination Food/Non-
Food Checkstand Departments in Pierce County and all
regular full-time and regular part-time employees em-
ployed in the Playland Department of [the Respon-
dent’s] University Place store, located in Tacoma,
Washington; excluding the Department Manager and
two Assistant Department Managers in Pierce County
and all guards and supervisors in the University Place
store as defined by the Act.

(b) Within 14 days after service by the Region, post at
its facility in Tacoma, Washington, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 19,
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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 5, 2009.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

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.”
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated 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 United Food and Commercial Workers Local 367,
affiliated with United Food and Commercial Workers
International Union, as the exclusive collective-
bargaining representative of our employees in the Play-
land Department of our University Place retail store lo-
cated in Tacoma, Washington.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
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 Play-
land Department of our University Place, Tacoma,
Washington store as part of following bargaining unit:

All employees employed in our Combination
Food/Non-Food Checkstand Departments in Pierce
County and all future Combination Food/Non-Food
Checkstand Departments in Pierce County and all regu-
lar full-time and regular part-time employees employed
in the Playland Department of our University Place
store, located in Tacoma, Washington; excluding the
Department Manager and two Assistant Department
Managers in Pierce County and all guards and supervi-
sors in the University Place store as defined by the Act.
FRED MEYERS STORES, INC.