Randalls Food and Drug, L.P.

National Labor Relations Board - Board Decisions

Jun 9, 2020

369 N.L.R.B. 100 (N.L.R.B. 2020)

369 NLRB No. 100
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.
Randalls Food and Drug, L.P. and International
Brotherhood of Teamsters, Local Union 745.
Case 16–CA–251484
June 9, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
This is a refusal-to-bargain case in which the Respond-
ent, Randalls Food and Drug, L.P., is contesting the Un-
ion’s certification as bargaining representative in the un-
derlying representation proceeding. Pursuant to a charge
filed on November 12, 2019, by International Brotherhood
of Teamsters, Local Union 745 (the Union), the General
Counsel issued the complaint on March 30, 2020, alleging
that the Respondent 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 16–RC–242776. (Official notice is taken of the rec-
ord 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 af-
firmative defenses.
On April 14, 2020, the General Counsel filed a Motion
for Summary Judgment. On April 16, 2020, the Board is-
sued 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.
Ruling on Motion for Summary Judgment
The Respondent denies its refusal to bargain and con-
tests the validity of the Union’s certification of representa-
tive based on its objections to the election in the underly-
ing representation proceeding.1
1 In its answer, the Respondent admits the allegations in complaint
par. 8, which alleges that the Union requested recognition and bargaining
on October 23, 2019, and that the Respondent has failed and refused to
recognize and bargain with the Union since about that date, except that
it denies any allegation that the Respondent had a duty to recognize and
bargain with the Union. The Respondent denies the allegations in pars.
9 and 10, which allege, respectively, that by this conduct the Respondent
has been failing and refusing to bargain collectively and in good faith
with the Union in violation of Sec. 8(a)(5) and (1) of the Act, and that
this unfair labor practice affects commerce within the meaning of Sec.
2(6) and (7) of the Act. However, in its response to the Notice to Show
Cause, the Respondent admits that it refused the Union’s request to bar-
gain by letter dated October 28, 2019. This admission is sufficient to
establish a violation of the Act. See Biewer Wisconsin Sawmill, Inc., 306
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 proceed-
ing. 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, a limited partner-
ship, has maintained an office and place of business in Ro-
anoke, Texas, where it has been engaged in business as a
distribution center for its supermarkets.
In conducting its operations as described above, Re-
spondent, during the 12-month period ending December
31, 2019, purchased and received goods, materials, and
supplies valued in excess of $50,000 directly from points
located outside the state of Texas.
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
The following employees of the Respondent (the unit)
constitute an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
Included: All full-time and regular part-time Drivers
and Spotters.
NLRB 732 (1992) (despite respondent’s answer denying that it refused
to bargain with union, its admission that it intended to test the union's
certification was sufficient to establish a violation). Accordingly, we
conclude that the Respondent’s denials of the allegations in complaint
pars. 8, 9, and 11 do not raise any issue warranting a hearing.
In its response to the Notice to Show Cause, the Respondent argues
that the Board should deny the General Counsel’s motion and renews its
objections to the underlying representation proceeding. It is well settled,
however, that in a certification-testing unfair labor practice case, issues
that had been presented to and decided by the Board in a prior, related
representation case cannot be relitigated and will not be reconsidered,
absent special circumstances not present here. See, e.g., Radnet Mgmt.
d/b/a La Mirada Imaging, 368 NLRB No. 89, slip op. at 1 (2019).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Excluded: Dispatchers, Mechanics, Managers, Ware-
housemen, Human Resource, Personnel, Watchmen and
Supervisors, as defined in the Act.
On September 23, 2019, the Union was certified as the
exclusive collective-bargaining representative of the unit.2
The Union continues to be the exclusive collective-bar-
gaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
The Union, by email dated October 23, 2019, requested
that the Respondent recognize and bargain with it as the
exclusive collective-bargaining representative of the unit.
Since about October 23, 2019, the Respondent has failed
and refused to recognize and bargain with the Union.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain with
the exclusive collective-bargaining representative of its
employees within the meaning of Section 8(d) of the Act
in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since October 23, 2019, to rec-
ognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the ap-
propriate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 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 un-
derstanding 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 on 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).
2 By unpublished order dated March 26, 2020, the Board denied the
Respondent’s request for review of the Regional Director’s Decision and
Certification of Representative.
3 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus pandemic, the notices must be
posted within 14 days after the facility reopens and a substantial comple-
ment of employees have returned to work, and the notices may not be
ORDER
The National Labor Relations Board orders that the Re-
spondent, Randalls Food and Drug, L.P., Roanoke, TX, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters, Local Union 745,
as the exclusive collective-bargaining representative of
the employees 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 exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
Included: All full-time and regular part-time Drivers
and Spotters.
Excluded: Dispatchers, Mechanics, Managers, Ware-
housemen, Human Resource, Personnel, Watchmen and
Supervisors, as defined in the Act.
(b) Post at its facility in Roanoke, Texas, copies of the
attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 16, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and
maintained 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 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
posted until a substantial complement of employees have returned to
work. Any delay in the physical posting of paper notices also applies to
the electronic distribution of the notice if the Respondent customarily
communicates with its employees by electronic means. 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.”
RANDALLS FOOD & DRUG, L.P. 3
employees employed by the Respondent at any time since
October 23, 2019.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 16 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. June 9, 2020
John F. Ring, Chairman
_
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 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 ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Teamsters, Local Union
745, 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 con-
ditions of employment for our employees in the following
appropriate bargaining unit:
Included: All full-time and regular part-time Drivers
and Spotters.
Excluded: Dispatchers, Mechanics, Managers, Ware-
housemen, Human Resource, Personnel, Watchmen and
Supervisors, as defined in the Act.
RANDALLS FOOD AND DRUG, L.P.
The Board’s decision can be found at www.nlrb.gov/case/16-
CA-251484 or by using the QR code below. Alternatively,
you can obtain a copy of the decision from the Executive Sec-
retary, National Labor Relations Board, 1015 Half Street,
S.E., Washington, D.C. 20570, or by calling (202) 273-1940.