Ainsworth Sentry

National Labor Relations Board - Board Decisions

Jun 18, 1979

242 N.L.R.B. 1221 (N.L.R.B. 1979)

AINSWORTH SENTRY
John Rodney McGee d/b/a Ainsworth Sentry' Em-
ployer-Petitioner and Retail Employees Union Lo-
cal 1092, United Food and Commercial Workers In-
ternational Union, AFL-CIO. 2 Case 36-RM-948
June 18, 1979
DECISION AND DIRECTION OF ELECTION
BY MEMBERS PENELLO, MURPHY, ANi) TRUESDALE
On November 21, 1978, the Acting Regional Direc-
tor for Region 19 administratively dismissed the peti-
tion herein, finding that the petitioned-for single-em-
ployer unit was inappropriate because the Employer
did not give the Union timely notice of its withdrawal
from the multiemployer unit, and that withdrawal,
therefore, had not been accomplished. In accord with
Section 102.67 of the National Labor Relations
Board Rules and Regulations. Series 8. as amended.
the Employer-Petitioner filed a timely request for re-
view.
On January 17, 1979, the Board issued a ruling on
administrative action in which it found that the re-
quest for review raised issues of fact best resolved by
hearing, reinstated the petition, and remanded to the
Regional Director to conduct a hearing, with instruc-
tions that it thereafter be transferred to the Board for
decision. Pursuant to said ruling, a hearing was held
on February 20. 1979. before Hearing Officer Sharon
A. Larson, and a hearing officer's report was sub-
mitted to the Board. Thereafter, the Employer-Peti-
tioner and the Union filed briefs with the Board.
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.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudical error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. John Rodney McGee d/b/a Ainsworth Sentry is
an employer engaged in commerce within the mean-
ing of the Act, and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. Retail Employees Union Local 1092, United
Food and Commercial Workers International Union,
' The name of the Employer and Petitioner appears as amended at the
hearing.
2 On June 7, 1979, the Retail Clerks International Union and the Amalga-
mated Meatcutters and Butcher Workmen of North America merged, form-
ing the United Fod and Commercial Workers International Union. AFL
CIO. The name of the Union herein, formerl) Retail Employers Union Lo-
cal 1092, Retail Clerks International Union, AFL CIO, has been amended
to reflect this change.
AFL-CIO. is a labor organization within the mean-
ing of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.'
4. On October 19, 1978, the Employer petitioned
for an election in a unit of its employees who had
previously been represented by the Union as part of
the multiemployer bargaining unit. The Employer
contends that it timely withdrew from the multiem-
ployer association. The Union contends that the at-
tempted withdrawal was ineffective because it did not
receive timely notice.4 The issue was fully developed
at the hearing, and the facts are not in dispute.
The Employer was a member of a multiemplover
bargaining association and subject to the multiem-
ployer collective-bargaining agreement. which ex-
pired as of June 3, 1978. The agreement had a 60-day
reopener clause which required that withdrawal from
the association be made as of April 4, 1978. On Feb-
ruary 24. 1978, the Employer wrote to the association
that it was withdrawing therefrom. The association
did not notify the Union. On March 15. 1978. the
Employer mailed a handwritten letter to the Union
stating: "This is to inform you that as of Feb. 24.
1978, 1 have terminated my membership in the Ore-
gon Independent Retail Grocers Association. They
will no longer represent me in collective-bargaining."
The letter was postmarked March 16, 1978, but, due
to a mixup at the post office, was not received by the
Union until June 15, 1978. The letter had stamped on
the envelope "Found in supposedly empty equip-
ment" and was accompanied by the following expla-
nation from the postmaster:
The piece of mail with this letter was found in
supposedly empty equipment.
Our training continually stresses the impor-
tance of double checking pouches, after being
emptied of mail, to ensure that none remains in
the pouches.
Unfortunately, sometimes mail may still be
overlooked. The "empty" pouches are placed in
storage for lengthy periods and discovery of the
mail depends upon reuse of the pouch.
We regret any inconvenience caused you.
Although the Union contends that the Employer's employees are part of
a multiemployer bargaining unit, the Union has not disclaimed an interest in
representing the employees in the petitioned-for unit. In addition, the Union.
at a time when it knew the Employer had attempted to withdraw from the
association. requested the Employer to sign the association's contract. hus.
there is a question concerning representation in the single-cmployer unit
'The Union also argues that the issue herein is rs judicarta because a
decertification petition filed in March 1978 was withdrawn without prejudice
and because a decertification petition filed on June 1978 was dismissed on
the ground :hat it was filed for an inappropriate unit. The agrument is Asth-
out merit, because the Emploer did not file the petitions,
242 NLRB No. 166
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record demonstrates that the Employer mailed
the notice to the Union at a time and in a manner in
which it would have been received in the normal op-
eration of the United States mails more than 2 weeks
before the deadline. That the Union did not timely
receive the notice is not attributable to the Employer,
but is clearly the fault of the Postal Service. In these
circumstances it would be inequitable to penalize the
Employer for the delay and lock it into a bargaining
relationship from which it had every right to believe it
had timely withdrawn. Central Supply Company of
Virginia, Inc., 217 NLRB 642 (1975). Accordingly, we
find that the Employer has effectively withdrawn
from the multiemployer unit and that the petitioned-
for unit is appropriate. We find the following unit to
be appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All employees of the Employer working at
Ainsworth Sentry, 5949 N.E. 30th, Portland,
Oregon 97211, excluding meatcutters, clerical
employees, guards, and all others excluded by
the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
1222