Glen���s Market

National Labor Relations Board - Board Decisions

Jun 10, 2005

344 N.L.R.B. 100 (N.L.R.B. 2005)

344 NLRB No. 100
Family Fare, Inc. d/b/a Glen’s Market and Local 876,
United Food and Commercial Workers Interna-
tional Union, AFL–CIO. Case 7–CA–48457
June 10, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
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 March 29, 2005, the
General Counsel issued the complaint on April 5, 2005,
alleging that the Respondent has violated Section 8(a)(1)
and (5) of the Act by refusing the Union’s request to bar-
gain and to provide information following the Union’s
certification in Case 7–RC–22118. (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 denying in part the allegations in the complaint.
On May 5, 2005, the General Counsel filed a Motion
for Partial Summary Judgment. On May 9, 2005, 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.
Ruling on Motion for Partial Summary Judgment
The Respondent admits its refusal to bargain and to
furnish information, but contends that the Union’s certi-
fication is invalid because the Board erred in overruling
its objections to the election in the representation pro-
ceeding. The Respondent also denies that the informa-
tion requested by the Union is relevant and necessary to
the Union’s role as bargaining representative.
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 General Counsel’s Motion for Partial
Summary Judgment and will order the Respondent to
bargain with the Union.
The General Counsel does not seek summary judgment
on the complaint allegations concerning the Union’s re-
quest for information, but instead the General Counsel
states that, as to those allegations, “the Respondent ap-
pears to raise issues of fact aside from its challenge to the
validity of the Charging Union’s certification.” Thus, we
find that a hearing is warranted on paragraphs 12, 13, and
14 of the complaint.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with its main office at 829 W. Main Street, Gaylord,
Michigan, has operated retail grocery stores in the State
of Michigan, including a store located at 5463 North
Huron Road, Oscoda, Michigan.
During the calendar year 2004, a representative period,
the Respondent had gross revenue in excess of $500,000
and purchased goods valued in excess of $50,000, which
were shipped to its Oscoda, Michigan facility directly
from points located outside the State of Michigan.
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 Local 876, United Food and
Commercial Workers International Union, AFL–CIO
(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 election held on January 18, 2002, the
Union was certified on February 22, 2005,1 as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time clerks, cashiers,
meat cutters, department specialists, and courtesy
clerks employed by the Respondent at its facility lo-
cated at 5463 North Huron Road, Oscoda, Michigan;
but excluding store director, assistant store directors,
customer services manager, meat manager, deli man-
ager, bakery manager, produce manager, managers in
training, seasonal employees, and guards and supervi-
sors as defined in the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
On about March 1 and 18, 2005, the Union, in writing,
requested that the Respondent recognize and bargain
collectively with it as the exclusive collective-bargaining
representative of the unit. Since about March 24, 2005,
the Respondent, by letter from its agent Mark Eriks, has

1 344 NLRB No. 25 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
failed and refused to recognize and bargain with the Un-
ion. We find that this failure and refusal constitutes an
unlawful refusal to bargain in violation of Section 8(a)(1)
and (5) of the Act.
CONCLUSION OF LAW
By failing and refusing since March 24, 2005, to bar-
gain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (5) 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 the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Family Fare, Inc. d/b/a Glen’s Market, Os-
coda, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Local 876, United Food
and Commercial Workers International Union, AFL–
CIO, as the exclusive 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
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time clerks, cashiers,
meat cutters, department specialists, and courtesy
clerks employed by the Respondent at its facility lo-
cated at 5463 North Huron Road, Oscoda, Michigan;
but excluding store director, assistant store directors,
customer services manager, meat manager, deli man-
ager, bakery manager, produce manager, managers in
training, seasonal employees, and guards and supervi-
sors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Oscoda, Michigan, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 7,
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 March 24, 2005.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
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
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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

2 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.”
GLEN’S MARKET 3
WE WILL NOT refuse to bargain with Local 876, United
Food and Commercial Workers International Union,
AFL–CIO, as the exclusive representative of the employ-
ees 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
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 bar-
gaining unit:
All full-time and regular part-time clerks, cashiers,
meat cutters, department specialists, and courtesy
clerks employed by us at our facility located at 5463
North Huron Road, Oscoda, Michigan; but excluding
store director, assistant store directors, customer ser-
vices manager, meat manager, deli manager, bakery
manager, produce manager, managers in training, sea-
sonal employees, and guards and supervisors as defined
in the Act.
FAMILY FARE, INC., D/B/A GLEN’S MARKET