Six Brothers King Drive Supermarket

National Labor Relations Board - Board Decisions

Sep 25, 1981

258 N.L.R.B. 273 (N.L.R.B. 1981)

SIX BROTHERS KING DRIVE SUPERMARKET
Six Brothers King Drive Supermarket, Inc. and Jet
Food Market, Inc. and United Food and Com-
mercial Workers International Union, AFL-
CIO-CLC, Local 546. Case 13-CA-20837
September 25, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on February 17, 1981, by
United Food and Commercial Workers Internation-
al Union, AFL-CIO-CLC, Local 546, herein
called the Union, and duly served on Six Brothers
King Drive Supermarket, Inc. and Jet Food
Market, Inc., herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 13, issued a
complaint and notice of hearing on March 18,
1981, against Respondent, 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 October 24,
1980, following a Board election in Case 13-RC-
15533, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about March 6,
1981, 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 May 4,
1981, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On June 15, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 19, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
I Official notice is taken of the record in the representation proceed-
ing, Case 13-RC-15533, as the term "record" is defined in Secs. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Elecrosystems. Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co, v. Penello. 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended
258 NLRB No. 23
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
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 response to
the Notice To Show Cause, Respondent admits its
refusal to bargain, but challenges the Union's certi-
fication on the basis that the Board erred in certify-
ing the Union as the exclusive bargaining repre-
sentative of Respondent's meat department employ-
ees. In doing so, Respondent contends, inter alia,
that the Acting Regional Director for Region 13
erred in finding that the two named corporations
constitute a single integrated employer within the
meaning of the Act. In the Motion for Summary
Judgment, counsel for the General Counsel alleges
that Respondent seeks to relitigate issues previously
considered in the underlying representation case,
and, also, that no factual issues in the case warrant
a hearing.
Our review of the record herein, including the
record in Case 13-RC-15533, discloses, inter alia,
that the Acting Regional Director issued a Deci-
sion and Direction of Election finding Respondent
to be a single employer of the employees in the
unit found appropriate. Respondent filed a request
for review with the Board on September 16, 1980,
which was denied on September 26, 1980. Thereaf-
ter, a mail-ballot election was conducted pursuant
to the Decision and Direction of Election; the tally
of ballots showed four votes cast for, and no votes
cast against, the Union. No ballots were chal-
lenged. A copy of the tally was furnished to the
Union at the time the ballots were counted. Re-
spondent, not present for the counting, received a
copy of the tally of ballots by certified mail on Oc-
tober 14, 1980. On October 24, 1980, a Certification
of Representative issued certifying that a majority
of ballots had been cast for the Union.
On October 31, 1980, Respondent filed objec-
tions to the election alleging, first, that the Union
had threatened, coerced, and intimidated employ-
ees, thus interfering with the employees' free
choice in the election. It alleged, secondly, that the
National Labor Relations Board had been unsym-
pathetic to Respondent's language problems and
had failed to provide Respondent with timely and
proper correspondence. Finally, Respondent
claimed that the timing of the election had been ar-
273
DECISIONS OF NATIONAL LABOR RELATIONS OARD
bitrarily decided with insufficient notice to the par-
ties.
On December 3, 1980, the Acting Regional Di-
rector issued his Supplemental Decision on Objec-
tions which overruled the objections as untimely
and reaffirmed the Certification of Representative.
On December 16, 1980, Respondent filed a re-
quest for review with the Board, which was denied
on February 3, 1981.
On February 4, 1981, the Union requested, by
letter, that Respondent bargain collectively with it.
The Union repeated this request by mailgram on
March 4, 1981. On March 6, 1981, Respondent, by
letter, refused to bargain with the Union. In its
answer to the complaint, Respondent admits that it
has refused to bargain with the Union in order to
test and obtain court review of the certification and
the appropriateness of the unit. In addition, Re-
spondent denies the allegations that the two corpo-
rations constitute a single employer. Respondent
also reiterates this denial in its response to the
Motion for Summary Judgment. This issue, howev-
er, was litigated in the underlying representation
case. Thus, Respondent is attempting to raise issues
herein which were raised in that proceeding.
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
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
Six Brothers King Drive Supermarket, Inc. and
Jet Food Market, Inc., both Illinois corporations,
operate retail food stores located at 360 East Gar-
field Boulevard, Chicago, Illinois, and 7122 South
Vincennes Avenue, Chicago, Illinois, respectively.
2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
Each store during the last calendar year, a repre-
sentative period, had a gross volume of business
valued in excess of $500,000 and purchased goods
valued in an amount in excess of $5,000 from enter-
prises located within the State of Illinois, which re-
ceived the goods directly from enterprises located
outside the State. The two corporations are affili-
ated business enterprises with common ownership,
offices, and management; have formulated and ad-
ministered common labor policies affecting em-
ployees at their respective operations; have inter-
changed personnel with each other; and have trans-
ferred supplies and merchandise with each other.
Six Brothers and Jet Food are a single integrated
business enterprise.
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 ORGANIZATION INVOLVED
United Food and Commercial Workers Interna-
tional Union, AFL-CIO-CLC, Local 546, 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 meat department employees of the Em-
ployer employed at its facilities located at 7122
South Vincennes Avenue and 360 East Gar-
field Boulevard, Chicago, Illinois, excluding all
other employees, and all guards and supervi-
sors as defined in the Act.
2. The certification
On or about October 9, 1980, a majority of the
employees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 13, 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 October 24, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
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SIX BROTHERS KING DRIVE SUPERMARKET
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about February 4, 1981, 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 March 6, 1981, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
March 6, 1981, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR
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,
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:
CONCI.USIONS 01 LAw
I. Six Brothers King Drive Supermarket, Inc.
and Jet Food Market, Inc., are a single integrated
business enterprise and an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Food and Commercial Workers Inter-
national Union, AFL-CIO-CLC, Local 546, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All meat department employees of Respondent
employed at its facilities located at 7122 South Vin-
cennes Avenue, and 360 East Garfield Boulevard,
Chicago, Illinois, excluding all other employees,
and all guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since October 24, 1980, 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 March 6, 1981, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent 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)(1) 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,
Six Brothers King Drive Supermarket, Inc. and Jet
Food Market, Inc., Chicago, Illionois, 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
275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment with United Food and
Commercial Workers International Union, AFL-
CIO-CLC, Local 546, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All meat department employees of the Em-
ployer employed at its facilities located at 7122
South Vincennes Avenue and 360 East Gar-
field Boulevard, Chicago, Illinois, excluding all
other employees, and all guards and supervi-
sors 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 7122 South Vincennes Avenue and
360 East Garfield Boulevard, Chicago, Illinois,
copies of the attached notice marked "Appendix. " 3
Copies of said notice, on forms provided by the
Regional Director for Region 13, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be 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 Re-
3 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
Notify the Regional Director for Region 13, 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 WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Food and Commercial Workers
International Union, AFL-CIO-CLC, Local
546, as the exclusive representative of the em-
ployees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All meat department employees of the Em-
ployer employed at its facilities located at
7122 South Vincennes Avenue and 360 East
Garfield Boulevard, Chicago, Illinois, ex-
cluding all other employees, and all guards
and supervisors as defined in the Act.
Six BROTHERS KING DRIVE SUPER-
MARKET, INC. AND JET FOOD
MARKET, INC.
276