Drug Fair, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1980

248 N.L.R.B. 1358 (N.L.R.B. 1980)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drug Fair, Inc. and Hotel & Restaurant Employees
Local 25, AFL-CIO. Case 5-CA-11545
April 23, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on September 28, 1979, by
Hotel & Restaurant Employees Local 25, AFL-
CIO, herein called the Union, and duly served on
Drug Fair, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 5,
issued a complaint on October 30, 1979, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge and complaint and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 27,
1979, following a Board election in Case 5-RC-
10813, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about September 21,
1979, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On November
5, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in te complaint.
On February 11, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
15, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
' Official notice is taken of the icord in the represcnlaolln poceed-
ing, Case RC 10813, as tlhe term "lecord" is defined ill Sees 102.68
and 102 69(g) of the Board's Rules and Regulations Srics . as amrnnded.
Sec LV Elecrrovstems r Inc., 166 NI RB 938 (1Q67), cnfd 38 t- 2d 683
(4th Cir 1968); Golden Agt Beverage (o., !67 NLRB !51 (96o enid 415
F.2d 26 (5th Cir 1969); Intertype Co. v enello, 269 F.iupp 573
(D.C Va. 1967); Foilett Crp., 164 NI RB 378 (1967), cnfd 3',7 F.2d 91
(7th Cir 1968, Sec. 9(d) of the NLRA. a amended
248 NLRB No. 184
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its answer to the complaint and in its response
to the Notice To Show Cause, Respondent admits
the Union's request and its refusal to bargain, but in
substance attacks the validity of the Union's certifi-
cation on the basis of its position in the underlying
representation proceeding that the unit was inap-
propriate, and on the basis of its objections to the
election which raise the same issue. Respondent
further contends that it is entitled to a hearing on
these issues. The General Counsel argues that all
material issues have been previously decided and
that there are no litigable issues of fact requiring a
hearing. We agree with the General Counsel.
Review of the record herein, including the
record in Case 5-RC-10813, discloses that on April
26, 1979, the Union filed a petition seeking certifi-
cation as representative of certain employees of Re-
spondent. The Regional Director for Region 5 con-
ducted a hearing and thereafter issued a Decision
and Direction of Election. On July 19, 1979, Re-
spondent filed with the Board a request for review
contending that the unit was inappropriate. The
Board denied the request for review on August 2,
1979. Subsequently, on August 3, 1979, an election
was held. The tally of ballots showed 16 votes
were cast in favor of, and 8 against, the Union;
there were no challenged ballots. Respondent filed
timely objections to the election, alleging in sub-
stance that the unit in which the election was di-
rected was inappropriate for collective-bargaining
purposes, and, thus, created an atmosphere at the
polls inimical to the employees' fair choice. On
August 27, 1979, the Acting Regional Director
issued a Supplemental Decision and Certification of
Representative in which he overruled the objec-
tions on the ground that they raised no issue not
previously considered by the Regional Director
and by the Board. By telegram dated September
18, 1979, the Board denied Respondent's request
for review.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
I See Pttt.iour h Plate GCas Co. \ I R.B., 313 U S 146, 162 (1941)
Rules and Regulations of tile Board, Sees. 102.67(t) anld 10.69tc)
DRUG FAIR, INC. 1359
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Employer, a Maryland corporation, is en-
gaged in operating a chain of drug stores. Only its
Store 704 located at the Department of Transporta-
tion Building, 400 D Street, SW., Washington,
D.C., is involved herein. During the 12 months
preceding issuance of the complaint, a representa-
tive period, Respondent received gross revenues in
excess of $500,000. During this same period, Re-
spondent purchased and received, in interstate
commerce, products valued in excess of $50,000
from points located outside the District of Colum-
bia.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANZIATION INVOLVED
Hotel & Restaurant Employees Local 25, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees including cashiers, cooks, salad,
grill, counter, porters, cooks' helpers, dish-
washers, potwashers, line attendants, stock
room, bus person, bookkeeper and "mini"
store employees employed by Respondent at
Store 704 located in the Department of Trans-
portation Building at 400 D Street, S.W.,
Washington, D.C., but excluding management
personnel, guards and supervisors as defined in
the Act.
2. The certification
On August 3, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 5, designated the Union
as their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on August 27, 1979, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about September 6, 1979, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about September 21, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
September 21, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
DRUG FAIR, INC.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Drug Fair, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Hotel & Restaurant Employees Local 25,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees including cashiers, cooks, salad,
grill, counter, porters, cooks' helpers, dishwashers,
potwashers, line attendants, stock room, bus
person, bookkeeper and "mini" store employees
employed by Respondent at Store 704 located in
the Department of Transportation Building at 400
D Street, S.W., Washington, D.C., but excluding
management personnel, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since August 27, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about September 21, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of
the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Drug Fair, Inc., Washington, D.C., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Hotel & Restaurant
Employees Local 25, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All employees including cashiers, cooks, salad,
grill, counter, porters, cooks' helpers, dish-
washers, potwashers, line attendants, stock
room, bus person, bookkeeper and "mini"
store employees employed by Respondent at
Store 704 located in the Department of Trans-
portation Building at 400 D Street, S.W.,
Washington, D.C., but excluding management
personnel, guards and supervisors as defined in
the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at Store 704 located in the Department
of Transportation Building at 400 D Street, SW.,
Washington, D.C., copies of the attached notice
marked "Appendix."3 Copies of said notice, on
forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words il the notice reading "Posted by
Order of the National Labor Relations Board"shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Hoard"
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DRUG FAIR, INC. 1361
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILI. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Hotel & Restaurant Employees Local 25,
AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All employees including cashiers, cooks,
salad, grill, counter, porters, cooks' helpers,
dishwashers, potwashers, line attendants,
stock room, bus person, bookkeeper and
"mini" store employees employed by Em-
ployer at Store 704 located in the Depart-
ment of Transportation Building at 400 D
Street, S.W., Washington, D.C., but exclud-
ing management personnel, guards and su-
pervisors as defined in the Act.
DRUG FAIR, INC.
DRUG FAIR. INC.