Red Bird IGA

National Labor Relations Board - Board Decisions

Jan 16, 1967

162 N.L.R.B. 945 (N.L.R.B. 1967)

RED BIRD IGA 945
WE WILL NOT coercively interrogate any employee about his, or any other
employees', desires toward any union, or whether he or any other employee
has signed a union authorization or membership card, or whether he or any
other employee has become a member of any union.
WE WILL NOT discourage membership in, or activities on behalf of, Inter-
national Union, United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, or in, or on behalf of, any other
union by discharging or laying off any employee, by failing or refusing to grant
merit pay increases to any employee, by refusing to transfer any employee from
one shift to another, or by disciplining any employee in any other manner in
regard to his hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of their rights guaranteed them by the National Labor
Relations Act.
WE WILL cancel our rule against solicitation established and posted by us on
about April 23, 1965.
WE WILL cancel our rule against solicitation appearing as Rule 26 of our
Code of Conduct which we distributed to employees on about March 1, 1966.
WE WILL on or before October 3, 1966, offer to transfer Betty Goff to a
position on the day shift substantially equivalent to the position she held on the
night shift on March 30, 1966, without prejudice to her seniority or other rights
or privileges and make her whole for loss of earnings she suffered by our fail-
ure and refusal to grant her periodic merit pay increases by paying to her the
sum of $35 with interest from October 1, 1965.
WE WILL offer to Glenn Bronson immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges , and make him whole for any loss of earnings he
may have suffered by reason of the discrimination practiced against him.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL-CIO, or any other
union, except to the extent that this right may be affected by the provisions of the
National Labor Relations Act.
MEMCOR, INC. COURTER DIVISION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-Notify Betty Goff and Glenn Bronson if presently serving in the Armed
Forces of the United States of America of their rights as set forth in this notice
upon application in accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3244.
Red Bird Foods, Inc., d/b/a Red Bird EGA and Retail Clerks
Union, Local 536, Retail Clerks International Association , AFIL-
CIO. Case 38-CA-V9. January 16, 1967
DECISION AND ORDER
On November 3, 1966, Trial Examiner Charles W. Schneider
issued his Decision in the above proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
162 NLRB No. 89.
264-047-67-vol. 162-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Brown, Jenkins, and Zagoria].
The Board has considered the Trial Examiner's Decision, the
exceptions and supporting brief, and entire record in this case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The representation proceeding 1
Upon a petition for certification as collective-bargaining representative filed by
Retail Clerks Union, Local 536, Retail Clerks International Association, AFL-CIO,
herein called the Union, the Regional Director for Region 13 of the Board on
April 27, 1965, after hearing issued a Decision and Direction of Election in a bar-
gaining unit which he found to be appropriate, consisting of grocery and meat
department employees of Red Bird Foods, Inc., d/b/a Red Bird IGA, Normal,
Illinois, herein called the Respondent. On May 13, 1965, the Union filed with the
Board a Request for Review of the Decision and Direction of Election and on
January 20, 1966, the Board issued its Decision on Review in which it modified the
Regional Director's Decision as to the composition of the appropriate unit, excluded
the meat department employees therefrom, and directed an election in the unit
which it found to be appropriate, which is hereinafter described.
On February 14, 1966, the election was held and a majority of the employees in
the election unit voted for the Union. On February 23, 1966, the Respondent filed
timely objections to the election, which the Regional Director, after investigation,
overruled in a Supplemental Decision issued on April 6, 1966, in which he also
certified the Union as the bargaining representative in the election unit. On April 25,
1966, the Respondent filed with the Board timely exceptions to the Regional Direc-
tor's Supplemental Decision and Certification of Representatives, and on May 13,
1966, the Board denied review.
THE COMPLAINT CASE
On August 11, 1966, the Union filed an unfair labor practice charge alleging that
since the certification the Respondent had refused to bargain with the Union.
On September 8, 1966, the General Counsel of the Board , by the Officer-in-
Charge for Subregion 38, issued a complaint alleging the commission of unfair
labor practices by the Respondent within the meaning of Section 8(a)(5) and (1)
of the Act. Copies of the charge , complaint, and notice of hearing were duly served
on the Respondent and the Union . The complaint alleged that since on or about
April 15 or June 1, 1966 , and at times thereafter , the Respondent has refused
to recognize and bargain with the Union as the exclusive representative of employ-
ees in the appropriate unit , although the Union had requested it to do so.
On September 19, 1966, the Respondent filed its answer to the complaint in which
it admitted most allegations of the complaint , but denied that the alleged bargain-
1 Official notice Is taken of the representation proceeding, Case 38-RC-31. See Section
9(d) of the National Labor Relations Act.
RED BIRD IGA 947
ing unit was appropriate and that the Union was the duly designated representative
therein.
On or about September 23, 1966, the General Counsel filed a Motion for Sum-
mary Judgment requesting, in view of the admissions contained in the Respond-
ent's answer, that the allegations of the complaint be found to be true, that the
Trial Examiner take official notice of the Board proceedings in Case 38-CA-31, and
that without necessity of hearing summary judgment be granted and a Trial Exam-
iner's Decision issued, for the reason that the Respondent seeks to litigate issues
previously decided by the Board.
On September 26, 1966, Trial Examiner Charles W. Schneider issued an Order
to Show Cause on Motion for Summary Judgment and Order Postponing Hearing,
in which all parties were directed to show cause on or before October 14, 1966, as
to whether the motion for summary judgment should be granted. On October 14,
1966, the Respondent filed a Response to Order to Show Cause and Motion to
Dismiss or to Allow Discovery. No response has been received from the General
Counsel or the Union.
Ruling on the motion for summary judgment
The Respondent objects to entry of summary judgment. The Respondent's con-
tentions, none of which are found to be substantiated, are as follows:
(1) That the full record in the respresentation case is not before the Trial Exam-
iner, and there is therefore no basis for the Board or a reviewing court to determine
the correctness of any disposition. However, as has been seen, official notice is
taken of the representation proceeding. The entire representation record is there-
fore available for review.
(2) The Respondent also asserts that it has a constitutional right to discovery,
"as a means of informing itself of the basis of the charges against it," and further,
that no hearing should be held or decision on motion for summary judgment made
until the Respondent has had the opportunity to complete a program of discovery,
"to discover all the information in the General Counsel's possession as to this case."
However, there is no provision in the National Labor Relations Act authorizing the
use of discovery procedure in the Board complaint proceedings. Globe Wireless,
Ltd., 193 F.2d 784, 751 (C.A. 9).
(3) The Respondent also contends that it has a constitutional right to a hearing
upon the complaint, and to introduce any relevant evidence "it sees fit," despite the
prior representation hearing and proceeding, and, further, that its answer properly
raises an issue as to the appropriateness of the bargaining unit. While the Respond-
ent's answer properly raises that issue for the consideration of the Board and the
courts, this does not necessarily create an issue litigable before the Trial Examiner
or one requiring a hearing before him. For the Respondent is clearly seeking to
relitigate matters which the Board has already decided.
The record establishes the following: the Board, after hearing, considered the
Respondent's contentions as to the composition of the appropriate unit and issued
its decision finding the unit alleged in the complaint to be appropriate; the election
was thereafter held, the Union receiving a majority of the votes cast; the Respond-
ent's objections to the election were considered and investigated by the Regional
Director; the Union was certified; and the Board denied review of those determina-
tions. The Respondent's contentions as to the appropriate unit and the Union's
representative status have thus been considered and determined by the Board, are
the law of the case, and are binding on the Trial Examiner.
The answer admits that after the certification the Respondent refused to bargain
with the Union. No contention is made that there is newly discovered or previously
unavailable evidence bearing on the representation issues. There are therefore no
issues litigable before the Trial Examiner.
In the absence of newly discovered or previously unavailable evidence, issues
which were or could have been litigated in a representation proceeding may not be
relitigated in a subsequent related unfair labor practice proceeding.2 No special
2 Pittsburgh Plate Glass Company, 313 U.S. 146 ; Krieger-Ragsdale & Company, Inc., 159
NLRB 490; Collins & Aikman Corp., 160 NLRB 1750. And see Rules and Regulations,
National Labor Relations Board , Series 8, as amended, Section 102.67(f).
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances are asserted requiring reexamination of the representation determi-
nations. The Trial Examiner is therefore without authority to reexamine them. All
material issues having thus been decided by the Board,, there are no matters requir-
ing a hearing before a Trial Examiner. Accordingly the General Counsel's motion
for summary judgment is granted, and the Respondent's motion to dismiss or to
allow discovery is dented. I make the following further findings:
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material herein, a Delaware cor-
poration, with its principal office and place of business located at Normal, Illinois,
where it is engaged in the retail grocery business.
Respondent, during the past calendar year, which period is representative of all
times material herein, sold products valued in excess of $500,000 and purchased in
excess of $50,000 worth of merchandise which originated outside the State of
Illinois.
The Respondent admits, and it is found, that the Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
,Retail Clerks Union, Local 536, Retail Clerks International Association, AFL-
CIO, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
All regular full-time and regular part-time grocery department employees of the
Respondent at its Normal, Illinois, store; but excluding meat department employees,
the manager, guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
On February 14, 1966, a majority of the employees in the appropriate unit by a
secret ballot election designated and selected the Union as their representative for
the purposes of collective bargaining, and on April 6, 1966, the Regional Director,
on behalf of the Board, certified the Union as such representative.
At all times since February 14, 1966, the Union has been and is now the exclusive
representative, within the meaning of Section 9(a) of the Act, of all the employees
of Respondent in said unit for the purposes of collective bargaining with respect to
rates of pay, wages; hours of employment, and other terms and conditions of
employment.
On or about April 15 and June 1, 1966, and at all times thereafter, the Union
requested Respondent to bargain collectively with respect to rates of pay, wages,
hours of ,employment, and other terms and conditions of employment with the
Union as the exclusive representative of the employees of Respondent in the appro-
priate unit.
Since on or about April 15 and June 6, 1966, and all times thereafter, Respond-
ent has refused to recognize and bargain collectively with the Union as the exclusive
representative of all the employees of Respondent in the appropriate unit.
By its refusal to bargain the Respondent has engaged in unfair labor practices
within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act.
Upon the basis of the foregoing findings and conclusions, I recommend that the
Board issue the following:
ORDER
Red Bird Foods, Inc., d/b/a Red Bird IGA, Normal, Illinois, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Clerks Union, Local 536, Retail
Clerks International Association, AFL-CIO, as the exclusive bargaining representa-
tive of all the employees in the appropriate bargaining unit.
(b) In any like or related manner interfering with, restraining, or coercing
,employees in the exercise of rights guaranteed in Section 7 of the Act.
RED BIRD IGA 949
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Bargain collectively with Retail Clerks Union, Local 536, Retail Clerks
International Association, AFL-CIO, as the exclusive representative of all the
employees in the appropriate unit, and, if an understanding is reached, embody such
an understanding in a signed agreement.
(b) Post at its place of business and store copies of the attached notice marked
"Appendix." 3 Copies of said notice, on the forms furnished by the Officer-in-
Charge for Subregion 38, after being duly signed by the Respondent's duly author-
ized representative, shall be posted by the Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(c) Notify the Officer-in-Charge for Subregion 38, in writing, within 20 days
from the date of receipt of this Decision, what steps the Respondent has taken to
comply herewith.4
3In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
4In the event that this Recommended Order is adopted by the Board, this provision shall
be modified to read : "Notify the Officer-In-Charge for Subregion 38, In writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Retail Clerks Union, Local
536, Retail Clerks International Association, AFL-CIO, as the exclusive col-
lective-bargaining representative of all our employees in the appropriate unit
described below:
All regular full-time and regular part-time grocery department employees
at our Normal, Illinois, store; but excluding meat department employees,
the manager, guards, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce any of our employees in the exercise of their rights guaranteed in Sec-
tion 7 of the National Labor Relations Act.
WE WILL bargain collectively with the Retail Clerks Union as the exclusive
collective-bargaining representative of all employees in the appropriate unit,
and, if an understanding is reached, WE WILL embody such understanding in a
signed agreement.
All our employees are free to join or assist the Retail Clerks Union or any other
Labor organization if they desire to do so.
RED BIRD FOODS, INC. D/B/A RED BIRD IGA,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
if employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Fourth
Floor, Citizens Building, 225 Main Street, Peoria, Illinois 61602, Telephone 673-9061.