Albertsons, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 132 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Albertson's, Inc. and Barbara J. Miller, Petitioner
and Kathy M. Wright, Petitioner and United
Food and Commercial Workers Union, District
Local No. 1614, Chartered by United Food and
Commercial Workers International Union,
AFL-CIO, CLC. Cases 19-RD-1907 and 19-
RD-1908
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon petitions duly filed under Section 9(c) of
the National Labor Relations Act, a consolidated
hearing was held 13 January 1983. On 26 January
1983 the Regional Director for Region 19 issued a
Decision and Order dismissing the instant petitions,
finding that, notwithstanding the Employer's
timely withdrawal from a multiemployer bargain-
ing association, there has been a historical merger
of the Employer's stores covered under the past
agreements with the Union and therefore the de-
certification petitions for two separate stores in
Boise, Idaho, are inappropriate as not being coex-
tensive with the scope of the contract. Thereafter,
in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, the
Petitioners filed a timely request for review of the
Regional Director's decision contending, inter alia,
that no multistore unit exists and that petitioned-for
single-store units are appropriate. The Union filed
an opposition to the Petitioners' request for review.
By telegraphic order dated 27 April 1983, the
Board, with then Member Jenkins dissenting, grant-
ed the Petitioners' request for review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in
this proceeding and finds, in agreement with the
Petitioners, that the petitioned-for single-store units
are appropriate.
The Employer, a Delaware corporation, operates
approximately 400 supermarkets in several States,
including Idaho. The Employer's Idaho Division
comprises approximately 32 stores in Idaho,
Nevada, and Oregon. Of the 21 stores in the State
of Idaho, 9 are in Boise and 3 are within 25 miles
of Boise. Although the Idaho Division office staff
provides supervisory and support services to the
stores, each store within the division has a store di-
rector and department heads who hire, fire, train,
and direct the employees working at each store
and who are held responsible for the profitability
of the store.
270 NLRB No. 22
For more than 15 years, the Employer and the
Union have been parties to successive collective-
bargaining agreements covering the Employer's
Boise area stores at which the Union had demon-
strated majority status. Collective-bargaining was
conducted on a multiemployer basis between the
Union, the Employer, and five other employers.
Each employer executed a separate document, and
addendums, supplements, and letters of understand-
ing addressing unique circumstances of different
employers and separate stores also were executed.
Ratification of the collective-bargaining agreements
was accomplished by elections in which all cov-
ered employees of all the employers participated
jointly.
Of the Employer's 12 Boise area stores, 6 stores
in Boise and I store in Nampa, Idaho, were cov-
ered by the multiemployer contracts. Most of these
stores were covered by the successive multiem-
ployer contracts for over 15 years. The Union and
the Employer added some of the newer stores to
the stores involved in the multiemployer bargaining
upon the Union's demonstration of majority
status.1 In this manner the then-existing contract
coverage was extended to two stores, including the
one involved in Case 19-RD-1908, in the late
1970's. About the same time, the Union lost a
Board-conducted election at one new store and
failed to achieve majority status at another; both of
these Boise area stores remain unrepresented.
The Employer's Boise and Nampa stores cov-
ered by the prior agreements with the Union2 are
not coextensive with any geographic or administra-
tive subdivision of the Employer. Transfers be-
tween stores in the Boise area are infrequent and
must be approved by the local management of each
store involved. As noted above, management per-
sonnel at each store possess and exercise substantial
autonomy with respect to day-to-day labor rela-
tions matters.
By letters dated 1 December 1982, the Employer
timely withdrew from the multiemployer associa-
tion and informed the Union that it intended to ne-
gotiate individual contracts for each store. The
Union responded, in a letter dated 7 December
1982, that it considered the appropriate unit to be
composed of all of the Employer's stores located in
the geographical area covered by the multiemploy-
er contract.
As indicated, the Regional Director found that a
multistore unit was established during the 15 years
The multiemployer contract does not contain an "add-on" clause. Cf.
S B. Rest of Framingharnm. Inc., 221 NLRB 506 (1975); Houston Division of
the Kroger Co., 219 NLRB 388 (1975); General Electric Co., 180 NLRB
1049 (1970).
' The most recent agreement expired 3 February 1983.
132
ALBERTSON'S, INC.
of multiemployer bargaining and that it survived
the Employer's withdrawal from the multiemploy-
er association. While noting that the multistore unit
urged by the Union might not be appropriate
absent this bargaining history, he concluded that
such history must be given controlling weight. 3
At issue is whether the Employer's stores under
a multiemployer agreement constitute a multistore
unit after the withdrawal from multiemployer bar-
gaining. In the circumstances here, we think not.
The seven Boise area stores formerly covered by
the multiemployer contract would not be found to
constitute an appropriate unit for the purposes of
collective bargaining in an initial unit determina-
tion. They form less than one-fourth of the Em-
ployer's Idaho Division and only one-third of the
stores in the State of Idaho. More important, other
stores in the Boise area are not represented and
were not covered by the multiemployer contract.
Additionally, as noted, each store's management
personnel hire, fire, train, and direct employees,
and they control the few interstore transfers that
occur. Thus, a unit consisting only of the Employ-
er's stores previously covered by the contract
would not be found appropriate under our tradi-
tional unit determination criteria.
However, as the Regional Director properly
noted, relevant bargaining history may override
those traditional criteria. We have long recognized
and enforced agreements between employers and
unions to bargain regarding groups of facilities that
may not have been considered appropriate units
had we been called on to make a unit determina-
tion. For example, agreements to add facilities to
multifacility units on a union's showing of majority
status at each facility are honored even though the
resulting unit excludes facilities in the same geo-
graphical area at which the union has not achieved
majority support. In those situations, our approval
of such units is premised on the voluntary nature of
their establishment. We require that such an agree-
ment of the parties be demonstrated by clear and
unmistakable evidence of mutual intent. Although
such intent existed in this case under the prior mul-
tiemployer relationship, there is no evidence of any
sort, let alone clear and unmistakable evidence, that
the Employer and the Union agreed to continue to
bargain on a multistore basis after the expiration of
'See, e.g., Anheuser-Busch, 246 NLRB 29 (1979).
the recent agreement. To the contrary, the Em-
ployer informed the Union it intended to negotiate
individual agreements for each store. In these cir-
cumstances, we do not find that the multiemployer
history continues to be binding on the stores previ-
ously covered by those agreements.4
The factors considered by employers, unions,
and employees in deciding whether to agree to bar-
gaining on a multiemployer basis may differ from
those considered by those same parties when decid-
ing whether to bargain in a unit composed of sev-
eral facilities of just one employer.5 Once the Em-
ployer timely withdrew from the multiemployer
group, a new determination of the appropriate unit
for bargaining became necessary, particularly
where, as here, there is no geographic or adminis-
trative congruence between the prior contract and
the Employer's operations and no showing of a
separate community of interest among those em-
ployees, apart from the prior bargaining history.
Accordingly, as the Employer's employees who
are represented by the Union do not constitute a
separate contractual unit or one in which the Em-
ployer currently recognizes the Union such as
might serve to bar the instant decertification peti-
tions, the petitioned-for single-store units are pre-
sumptively appropriate and the dismissal of the pe-
titions was improper.
Accordingly, we will reinstate the petitions and
remand this consolidated case to the Regional Di-
rector for further processing.
ORDER
The petitions are reinstated and the case is re-
manded to the Regional Director for further appro-
priate action.
' Contrary to the Regional Director, we do not find that Anheuer-
Busch, supra, and White-Wrstnghose Corp., 229 NLRB 667 (1977), sup-
port his conclusion. Neither case involved prior multiplant bargaining on
a multiemployer level. In both of those cases, among other distinguishing
factors, the employers continued to bargain on a multiplan basis with the
respective unions. Here, once the Employer withdrew from the multiem-
ployer association it made known to the Union its intention to bargain for
single-store contracts.
' For example an employer may join in multiemployer baretganing for
various reasons including greter bargaining strength or expertise, com-
petitive factors, or other considerations. The manner in which newly
opened facilities came under the coverage of the former agreements may
not be the same as would exist if there were separate agreements with the
Union. Thus, the manner of grouping of the employer's facilities under
the multiemployer agreement should not be controlling in the single-em-
ployer context.
133