Dillion's Cos., Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1978

237 N.L.R.B. 759 (N.L.R.B. 1978)

DILLON'S COMPANIES. INC(
Dillon's Companies, Inc. and Retail Store Employees
Union Local 322 of Southwest Missouri, AFL-(IO.
affiliated with Retail Clerks International Union,
AFL-CIO and Amalgamated Meatcutters and
Butcher Workmen of North America, District Local
No. 340, AFL-CIO, Party in Interest. Case 17
CA-7985
August 22, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING; .'NI) M IMBI RS JNKIlNS
ANI) Mt RPIY
On May 31, 1978, Administrative Law Judge Mar-
vin Roth issued the attached Decision in this pro-
ceeding. Thereafter, the Charging Party filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(h) 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-menhber panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings. findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National L abor
Relations Act. as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and herche
orders that the complaint be. and it herebN is. dis-
missed in its entirety.
In agreeing with Ihe Adminlstralise l.aw Judge' finding thai Respon-
dent did not unlaofulls recognize the Amaliamirnted leat.utiers lid
Butcher \'orkmen of North America. t)iilrim I..al No 3401. SFLI ( 1O ie
disa.ow his comments to the effect that the present ca:e a.ppeari t, hbe the
result of a continuing rivalr hebetween Itso labor ioraLni.,ioions shohe inter
ests might he hbetter ~erved if thes mereed
DECISION
SfArEMiENi O 1iH1 CSEF
MARvIN ROTH. Administrative Law Judge: This case was
heard at Springfield. Missouri, on March 13 and 14, 1978.
The charge and amended charge were filed on November
14 and December 28, 1977. respectivel. bhy Retail Store
Employees Union Local 322 of Southwest Missouri. Al-I.
CIO, affiliated with Retail Clerks International Union,
AFL CIO (herein Retail Clerks). The complaint. which is-
sued on December 29. 1977. and was amended at the hear-
ing. alleges that Dillon's Companies. Inc. (herein the Com-
pani, or Respondent). violated Section 8(a)( ) and (2) of
the National Labor Relations Act. as amended. The grava-
men of the complaint is that the Company allegedly grant-
ed exclusive recognition to Amalgamated Meatcutters and
Butcher Workmen of North America, District Local No.
340. AFL-CIO (herein Meatcutters).l as the exclusive col-
lective-hargaining representative of its employees at its re-
tail grocers store No. 102 in Springfield, Missouri, and
agreed to a contract covering its employees at the store,
notwithstanding prior notification by Retail Clerks that it
was engaged in organizational activity among employees at
the store. The answer denies the commission of the alleged
unfair labor practice. All parties were afforded full oppor-
tunit' to participate, to present relevant evidence, to argue
orally, and to file briefs. OnlI General Counsel and Retail
( lerks filed briefs.
Upon the entire record in this case and from m) obser-
vation of the demeanor of the witnesses, and having con-
sidered the briefs submitted b) General Counsel and Retail
Clerks. I make the following:
FI,)Is(,os )l IF ( I
I 1HF Bi S1NFSS O
:
0 R-SPONDFNI
The Company. a Kansas corporation, is engaged in the
operation of a chain of retail food markets in various
States, including a store at 2850 South Campbell, Spring-
field. Missouri. known as Store No. 102, which is the facil-
its involved in this case. The Company meets the Board's
retail and direct inflow commerce standards, and is an em-
ployer engaged in commerce within the meaning of the
Act.
11 IHi L.ABOR O)R(iGNIZA llON INVOI.ED)
Retail Clerks and Meatcutters are each labor organiza-
tions within the meaning of Section 2(5) of the Act.
III I Hl Al I IF(I t FAIR I SBOR PRACTICES
A. The Recognition of Meatrcurlers
The Company has collective-bargaining relationships
with Meatcutters unions at stores located elsewhere than
Springfield. Missouri. In the spring of 1977 2 Meatcutters
learned from some of its members that the Company was
coming to Springfield.3 Some of the members applied for
jobs in Springfield. Store No. 102 opened for business No-
vember I 1. and the Company opened a second store on the
north side of Springfield on January 12. 1978. In the mean-
time. beginning in late August. the Company transferred a
"considerable number of employees" into store No. 102.
The names of Respondent aind the Part, in Interest appeir amniended
at the hearing.
\11 d.ll. her il ar e in In 17 unle- oilher'l-e indirated
np( m , ', i)lrelor tf I iipl] c e Betlnefils H rtold Ruin te ulbfied that i
the spri .f i19'. CI..IItc i.rcs cnil.t ic n hiln about Sprinn field i }hle. er.
counlcli for ith (icnet.l] ( uncl lld nTot qu. e,lion himn about the suhslance
o[ ht. Itdtuctl
237 NLRB No. 114
759
DE( ISIONS OF NATIONAL LABOR RELATIONS BOARD
and the new employees began reporting for work at the
store on October 31.4 In mid-October Meatcutters com-
menced an organizational campaign among the employees.
Six business agents made house calls, soliciting the employ-
ees to sign cards designating Meatcutters as their bargain-
ing representative. On November 2. the Company received
a telegram from Meatcutters, dated the same day., claiming
to represent a "majority of your employees at the Dillon
Stores in Springfield, Missouri, including all full-time and
regular part-time employees in the grocery, meats, bakery,
and delicatessen departments." Meatcutters further re-
quested a meeting to prove its representation and requested
recognition as the exclusive bargaining representative. The
Company and Meatcutters agreed to a card check, and the
next day the Company submitted to Kansas State Court
Judge Robert Stephan a list of employees at store No. 102.
as of October 31. in a unit consisting of:
All Grocery employees, Produce employees. Meat De-
partment employees, including Assistant Store Man-
ager, Head Grocery Clerk, Head Produce Clerk and
Head Meat Cutter: excluding Courtesy Clerks. Phar-
macists, Office Clerical, Guards and Supervisors as
defined in the Labor Management Relations Act.
The list contained the names of 82 employees. The "courtesy
clerks" who were excluded from the list are employees.
sometimes known as carryout clerks, whose principal du-
ties are to help customers load groceries into their cars and
perform cleanup work in and around the store. On Novem-
ber 3. Judge Stephan certified in writing that he had exam-
ined the list, that he had examined authorization cards sub-
mitted to him by Meatcutters, and that he was "satisfied
that a majority of the employees on the list provided to me,
have authorized the Union to be their bargaining represen-
tative for purposes of collective bargaining as to wages,
hours and other conditions of employment." General
Counsel waived testimony by Judge Stephan in this pro-
ceeding, and all parties stipulated that Meatcutters submit-
ted 44 authorization cards to Judge Stephan; i.e.. a majori-
ty of employees in the unit. The Company promptly
recognized Meatcutters as the bargaining representative of
the employees for the unit described on the list. On Janu-
ary 25, 1978, the Company and Meatcutters executed two
collective-bargaining contracts, effective from November
3, 1977, to January 26, 1980, covering its Springfield stores.
One contract applied to grocery, produce, and bakery de-
partment employees, and the second to meat department
employees. Both contracts contained a union-security
clause and provided for employer checkoff of union dues.
B. The Retail Clerl 's Activity
Valerie Blohm, is employed as checker at Store No. 102.
She reported to work on October 31. in the first group of
new, as distinguished from transferred employees. Blohm
testified that on October 22, two Meatcutters representa-
tives came to her home and asked her to sign an authoriza-
tion card. She refused and asked them how the) got her
4 General ('ounsel witness Valerie Bhlhin tetllficd Ihal the quoted .ords
accuraleii reflected the situaitoHn it Ihe Stoic as of () toher l 1
name and address, but they did not tell her. Blohm testified
that she then called Retail Clerks President Jack Gray and
informed him that Meatcutters was organizing, and that
she was interested in having the Retail Clerks represent
her. Gray said he would send her a card. Blohm testified
that she signed a Retail Clerks authorization card on Octo-
ber 31 and mailed it to Retail Clerks the same day. The
card, which was introduced in evidence, does not contain a
stamp or entry on the reverse side which would indicate
when Retail Clerks received the signed card. nor did any
Retail Clerks witness testify concerning receipt of the
signed card. The only indication in the record that Retail
Clerks received the card consists of a reference, together
with an enclosed cop) of the card, in a letter from Gray to
company official Ryan, dated November 8. However, in
the absence of contrary evidence, I credit Blohm's testi-
mony that she signed and mailed the card on October 31,
and I infer that Retail Clerks probably received the card in
due course of the mails: i.e., I or 2 days later.
Retail Clerks Organizer Billy Jack Wingo testified that
on October 31 and November I and 2 he had some 10 to 15
conversations with store No. 102 employees in the store
parking lot, in which he told them of the benefits of Retail
Clerks representation. gave them literature and authoriza-
tion cards, and asked them to sign the cards. Wingo testi-
fied (on March 13, 1978) that he had been employed as an
organizer for Retail Clerks for about 4-1/2 months, which
would indicate that store No. 102 was probably his first
assignment. There is no evidence that anyone assisted him
in his organizing efforts. Wingo testified that most of the
employees would not give him their names. Wingo's testi-
monv indicates that despite 3 days of effort, he failed to
obtain any, signed cards. It is possible that having disclosed
the identity of its principal adherent, a union in a case of
this type might wish to rest on disclosure of one signed
card and preserve the confidentiality of other cards. How-
ever, this does not appear to have been a factor in the
present case. Wingo freely testified concerning his conver-
sations with the employees, and named names to the best
of his knowledge and recollection. I find that as of Novem-
ber 3, Retail Clerks had only one signed authorization card
in its possession from among the store employees, and that
as of October 31 it had none.
Company official Ryan testified that probably on No-
vember I or 2 he received a mailgram confirmation of a
message from Retail C'lerks President Gray, stating as fol-
low s:
This will serve to notify you that the Retail Store Em-
ployees Union is actively engaged in organizing the
employees you have hired for your two stores to be
opened in Springfield Missouri. We realize your stores
are not open for business at this date so no collective
bargaining agreement can exist at this time. The unit
we are proposing to organize includes the grocery and
produce department employees. The grocery depart-
ment would include checkers stockers and carry out
personnel. If you would like to discuss ground rules
for organizing this program, please notify me at your
convenience.
The message, which was sent on October 31 at 5:29 p.m.,
760
DILLON'S COMPANI[ES. IN(
was first relayed telephonicallN to Rsan. TIherefore. it is
probable that Ryan received the message on Novembhe 1
at the latest. Rvan did not respond to the message. On
November 7 Gray sent a mailgram to Rvan. protesting the
Company's recognition of Meatcutters. At no time did Re-
tail Clerks request recognition from the Employer or claim
to represent a majority of the store emplo.ees.
C. A na/vsis and (Cothl diti ig ndinti s
General Counsel made clear in the complaint and on the
record at this hearing that it does not contend that Meat-
cutters lacked cards from the majority of employees when
recognized by the Company. or that the recognized unit
was inappropriate, or that there was not a representative
complement of employees, or that the Companr assisted
Meatcutters in any manner other than by the act of recog-
nition itself. Rather, the complaint is based solelk o1n (Gen-
eral Counsel's interpretation of the itMidwe.sl Ppitng doc-
trine 5 that the Company unlawfully recognized
Meatcutters because Retail Clerks had previously informed
the Company of its organizational activity.'
General Counsel's reliance on Midsies.t Piping) aind its
progeny is misplaced. Midwest Piping stands for the propo-
sition that an employer violates the Act bv extending rec-
ognition to one union, notwithstanding a card showing of
majority status, at a time when the employer kno s of the
existence of "a real question concerning the representation
of the employees in question" (id. at 107)). In hitlicri
Piping, the Board found that the existence of such question
was evidenced by the facts that the rival unions had both
conducted vigorous organizational campaigns. that both
had apprised the employer of their conflicting ma.lorits
representation claims, that thes had filed conflicting peti-
tions with the Board, alleging the existence of a question
concerning representation of the employees. and that the
petitions were pending before the Board at the time recog-
nition was extended. In these circumstances. the Board
concluded that the membership cards relied upon b\ the
recognized union were not conclusive proof of majorit)
status (id. at fn. 13). Since Midwoest Piping the Board has
held that the rival claim need not be currently pending if in
the circumstances it would be a futility to make such a
claim, e.g., prior rejection by the employer, and that the
Board "has never established an' numerical percentage 1as
a condition precedent to establishing the existence of a
s 4id, est Piping and Suppr / ( i. It 63 NtI RB 10, I(). 1 0 7'1 i I'14
Allegations that Meatcutters did n[it represent a nlao orlti , if ¢m loc
that the Company interfered with Retail Clerks orgeal,latlional ai i,i\, thli
the recognized unit was inappropriate, that the (t.nlpin,\ neoit lild Aith
Retail Clerks for a contract coi.ering the Springfield itores, and thiit il.
Company supplied Meatcutters with the inlie, and addresses oii cmsplro ces
hired before store No. 102 opened fior husiness a crc ll 1mi eondcde, otl of the
original unfair labor practice charge The amended charge, lik te he cl-
plaint, is based solely, on General ( ounsel's interpretation rI *fd;i , Pip,
ing. If the original charge proves ;ninhing at all. it is. hb Reti.ll ( .-oks ".I
admission therein, that Retail Clerks knei a is eirls as ',u lulxt 12 th i the
Compans was opening taio stores In Springfield, and that Rctali ( ICrki
wished to organize "at the top" bh nCgotiltin ia ontllrct vilhilt first bh-
taining emplosee support In si c f (tieneral( ounsel'ls leIs [I.II.led pa)i-
tion at the hearing, the suggestion n (;eneral ( ounil',, brief li.h tilre i 11.
issue as to whether a mlajoritU of emtploseccei sillC ld ielcller, crds i
improper and has been disregarded
question concerning representation." Plav.skool. Inc., a Di-
tvisiT o tl /ilimn Bradlety ('mpanv. 195 NlRB 560 (1972),
enforcement denied 477 F1.2d 66 ('.A. 7. 1973). However,
the Boatd matde clear in Ploa.sAlol and other decisions dis-
cussed herein that for the MidwmeSl Piping doctrine to be
applicable there must in fact he a rival claim and that
claim mnust he both suhstantial and supportable (195
NI.RR at 0()). I hus. ill PlnisANIol the rival union had.
Wisthin an 8-month period precceding recognition. secured
enough authorization cards to make the requisite 30-per-
cent shossinc for an election. received some 148 votes in
the election. out of a unit of 494 emnployees. and continued
to solicil ciards successfuil/l after the election despite the
defection of its chief organizer.
('ontrallr to the contention of General Counsel. the
Board has nexcr held that anx organizational activit., no
nllttel ho1s desultors or unsuccessful. automatically in-
'solves .\id(Iei.si Pipting. nor has it ever held that one signed
authorizatti on card is sufficient to achieve that end. Gener-
al Counisel points out that in Altericanl Bread C(implan.i, 170
Nl.RB 85 ( 1968). enforcement denied 411 F.2d 147 (C.A.
6. 199)., the trial exaniner found one card for the rival
union to he sufficient to insol'e M4idis e.st Piping. because
(170 NRB : at 88):
11i is not] of consequence that General Counsel has
failed to establish the substantiality of the Teamsters
representation. Findings based upon evidence ad-
dtuctd at the hearing disclose that but one of the 92 in
the unit had authorized the Teamsters to represent
him at the time the claim was made: and only seven
more joined him in the week that followed. prior to
Respondent's refusal. This information, the number of
emploees signing authorization cards. should be of
no concern to an emploxer 'w,,hen a claim is made. for
indeed the cases are legion where the inquiries of an
emploier as to precisely such a fact, the number who
sigiled. hase been found to be violations of the Act.
Furthermore, as it is clear that it is the practice of the
Board to require bhut one authorization card of a union
seeking to intervene in an election. less rigid standards
cannot be set to permit an employ er to free himself of
his obligation of neutrality. Consequently. any argu-
ment suggesting a showing of substantiality has no
place in the situation presented by the Teamsters de-
mand for recognition.
1The trial examiner's rationale is not Board law. because the
Board expressl(, did not rel' upon it in finding a violation.
Rather the Board held lid. at 85. fn. I):
We agree with the I rial Examiner that the Respon-
dent violated Section 8(a)( l) and (2) of the Act by
recognizing and bargaining with the Intervenor during
the pendenct of a real question concerning represen-
tation. Mtlidtres Piing & Surpph ('C.. Inc., 63 NLRB
1060. The record clearl; shows that the Respondent
had full knowkledge of Local 327's active and continu-
ing organizatitoal campaign when it recognized the
Interv'enor: that l ocal 327's claim was not a bare
claiim. but wais supported b, signed authorization
cards: that the Respondent engaged in disparate treat-
761
DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
ment of the two unions involved herein: and. that L.o-
cal 327 was continuing to pursue before the Board its
claim that the expedited election [in which Local 327
received a substantial number of votes] was invalid
because of the Regional Director's unit determination,
a matter which was litigated in the proceedings involv-
ing Cases 26-CC 94 and 26-CP 19. Otn this boa.s. vwe
find that a substantial question concerning representation
existed notwithstanding Local 327' .strength of l author-
ization card out of a unit of 92 when Local 32 7 demand-
ed recognition and a total of 8 cards when the the Re-
spondent recognized the Intervenor. [Emphasis
supplied.]
In sum, the Board relied on factors other than the number
of cards, in finding the existence of "a substantial question
concerning representation." In contrast to the situation in
American Bread, in the present case Retail Clerks had no
cards when it notified the Company of its organizational
activity, and one card when the Company recognized
Meatcutters.
In fact, the Board has held that in the absence of other
evidence, such a strong showing in a recent election, cou-
pled with continuing and successful organizational activity,
a small number of cards ma'v not be sufficient to raise a
real question concerning representation. In Bor's Mlarkets,
Inc., 156 NLRB 105 (1965). affd. 370 F.2d 205 (C.A. 9.
1966), the employer entered into a contract with the Hotel
and Restaurant Workers Union, covering a unit of snack-
bar employees at four stores. General Counsel, in oking
Midwest Piping, alleged that the recognition violated Sec-
tion 8(a)(2) and (I) of the Act. The Board dismissed the
complaint, finding "no real question concerning represen-
tation," notwithstanding that the rival Union had recentl?
requested recognition for the snackbar employees at one of
the stores, based in part on a card showing at that store. In
Robert Hall Gentilhl Road Corporation, db hya Robert hall
Clothes, 207 NLRB 692 (1973), the Board found that Mid-
west Piping was inapplicable, notwithstanding that the rival
union had obtained 24 cards in a unit of about 155 employ-
ees, because that union failed to seek or obtain more cards
after it withdrew an election petition. Conversely, in Buck
Knives, Inc., 223 NLRB 983, 985 (1976), enforcement de-
nied 549 F.2d 1319 (C.A. 9, 1977), relied upon by General
Counsel, the rival union had within the past year lost a
Board election by only 4 votes and subsequently obtained
67 signed authorization cards in the unit of about 278 em-
ployees, and the employer knew that 4 employees were ac-
tively soliciting cards for that union. In Packerland Packing
Companv of Texas, Inc., 221 NLRB 1119. 1124 (19751, cited
In Oil Transport (omrnlan. 182 NI.RB 1016. 1)21 1l971). enfd 440 () 2d
664 (C.A 5. 1971). the trial examiner cited Br' ,lirAtr,{ is a; case in shich
the rival union had not obtained any authorizatioin cards. lie appairentl
misread the case. See Botst Market, supra at 106
by Retail (lerk.s in its brief, the rival union. which had also
lost an election, subsequently obtained 15 signed cards in a
unit of about 50 employees and notified the employer that
it intended to petition for another election.
I find that in the present case, Midwest Piping is inappli-
cable because no real question concerning representation
existed as of November 3. when the Company recognized
Meatcutters. Therefore, the recognition was lawful. Specifi-
call'. no real question existed because at no time did Retail
Clerks make either an express or implied claim for recogni-
tion; and even if its notice of organizational activity were
deemed to constitute such a claim, the claim was "clearly
unsupportable and lacking in substance." PlaVskool, supra
at 560. Three days of half-hearted organizational activity
by Retail Clerks failed to produce a single signed card.
Midvwest Piping does not stand for the proposition that a
union mas thwart an otherwise lawful recognition of an-
other union which has obtained majority status, simply by
announcing that it is engaging in organizational activity.
Rather. Midwvest Piping applies when there is a real ques-
tion concerning representation which can only be resolved
by a Board-conducted election. In the present case, Retail
(Clerks efforts were demonstrably feeble and unsuccessful.
Even Valerie Blohm did not attempt to interest her fellow
employees in Retail Clerks' representation. Rather, the
present case, which has overtones of a spite campaign, ap-
pears to be another chapter in an endless rivalry between
two labor organizations., both affiliated with the AFL-
(10, representing employees in the same industry, often
side bs side. whose interests and those of the employees
whom they' represent might best be served if they merged.
CON 'Il . SIONS OF- LAW
I. The Company is an Employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Meatcutters and Retail Clerks are each labor organi-
zations within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tice alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER
The complaint is dismissed in its entirety.
See. eg . l .ii a ( r/,r.iral,1 id h ta 1 sKee i RO AAtf- bodland. 216 NL RB
968 (1975)
In ille esent no exceplions are filed as provided by Sec 10246 of the
Rules and Regul;lihon of the National L abor Relations Board. the findings,
conclusions, and recolmmended Order herein shall as provided in Sec.
102 48 of the Rules and Regulations, he adopted bh the Board and become
ii, finding,, ,conclulnsln. and Order and all objetrions thereto shall be
deemied ai. id for ill purposes
762