Frazier's Market

National Labor Relations Board - Board Decisions

Jun 29, 1972

197 N.L.R.B. 1156 (N.L.R.B. 1972)

1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith's Management Corporation d/b/a Frazier's
Market and Retail Clerks Union , Local No. 560
chartered by Retail Clerks International Associa-
tion, AFL-CIO. Case 19-CA-5621
June 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charged filed on January 28, 1972, by the
Retail Clerks Union, Local No. 560 chartered by
Retail Clerks International Association, AFL-CIO,
herein called the Union, and duly served on Smith's
Management Corporation d/b/a Frazier's Market,
herein called the Respondent, the General, Counsel
of the National Labor Relations Board, by the
Regional Director for Region 19, issued a complaint
on March 14, 1972, against Respondent, alleging that
Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the mean-
ing 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, complaint, and notice of
hearing before a Trial Examiner were duly served on
the parties to this proceeding.
The complaint in substance alleges that: (1)
negotiating on behalf of all its employer-members,
including the Respondent, the Pocatello Multi-Em-
ployer Bargaining Unit, herein called the Associa-
tion, reached agreement with the Union on the terms
and conditions of a new collective-bargaining agree-
ment covering the retail food store employees in the
appropriate unit; (2) the agreement was reduced to
writing and was signed during November and
December 1971 by all the members of the Associa-
tion except the Respondent; (3) on December 30,
1971, the Union demanded that the Respondent sign
the agreement; (4) the Respondent has refused to
sign the agreement without making changes; (5) the
Respondent's refusal to sign the agreement unaltered
is an unfair labor practice within the meaning of
Section 8(a)(1) and (5) of the Act.
The Respondent filed its answer March 22, 1972,
admitting, inter alia, that since November 2, 1971, it
has been a member of the Association which,
through the Idaho Employers Council, represented
the Respondent in the bargaining negotiations for
the new agreement, and that it signed and submitted
to the Union in December 1971 a copy of the
agreement identical with that negotiated except that
the words "and future" had been stricken. The
Respondent denies (1) that the appropriate unit can
be extended to include employees at its stores opened
after November 2, 1971, when it joined the Associa-
tion, (2) that the Union can represent such employees
unless so chosen by them, and (3) that its action in
striking "and future" from the contract constitutes a
failure to bargain in good faith under Section 8(a)(5).
On April 14, 1972, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 26, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause. The Union also filed a brief
in support of Motion for Summary Judgment on
May 10.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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
As admitted by the Respondent in its answer and
its response to the Notice To Show Cause, the
Association, which represented the Respondent since
November 2, 1971, and during the contract negotia-
tions, reached an agreement with the Union on
November 13, 1971. In article I. section 1.01 of the
agreement, the Union was recognized as the exclu-
sive bargaining agent for the employees in the
appropriate unit employed in the "present and future
retail food stores" of the employers. All the other
association members signed copies of the contract as
negotiated but the Respondent struck the phrase
"and future" from the copy it signed. The General
Counsel and Union argue that the Respondent's
refusal to sign the contract as negotiated by his
authorized representative is a violation of Section
8(a)(1) and (5) of the Act.
The Respondent contends that granting the Gener-
al Counsel's motion would force it to accept an
illegal and unenforceable contract provision with
respect to new stores opened after November 2, 1971,
and thus to violate Section 8(a)(1), (2), and (3) of the
Act. It argues that the Union can represent employ-
ees in stores opened in the future only if those
employees freely choose the Union as their repre-
sentative for collective bargaining. The General
Counsel and the Union reply that the issue is not
whether the contract can be enforced in situations
that might arise in the future but whether the
Respondent may refuse to execute a written contract
agreed to by its representative without making
197 NLRB No. 177
FRAZIER'S MARKET 1157
changes in the agreement. We agree with the General
Counsel and the Union.
When, upon the request of the labor organization
involved, an employer refuses to sign a written
contract which embodies the agreement between its
representative and that union concerning the terms
and conditions of employment for the employees in
the appropriate unit, it commits a refusal to bargain
in violation of Section 8 (a) (1) and (5) of the Act.
H.J. Heinz Company v. N.L.R.B., 311 U.S. 514,523-525
(1941); Industrial Wire Products Corporation 177
NLRB 328 (1969); Borg Compressed Steel Corp., 165
NLRB 394, 402 (1967). If the agreement is negotiated
by the authorized representative of a multi-employer
bargaining unit, a member of that unit similarly may
not refuse to sign the contract agreed upon by its
representative. Sprouse-Reitz Co., Inc., 195 NLRB
No. 142 (1972); American Sign & Neon Company 176
NLRB No.' 147 (1969); Service Roofing Company 173
NLRB 321 (1968). The Respondent's refusal here to
sign the contract as negotiated without striking out
the words "and future" thus is a refusal to bargain in
violation of Section 8(a)(1) and (5) of the Act.
The Respondent's argument that retention of the
phrase "and future" will effect an accretion of
employees in new stores opened by the Respondent
without a consideration of the employees' desires
does not justify its refusal to sign the contract as
negotiated. Whether a group of new employees in a
new store operated by the same employer will accrete
to the existing unit is a matter to be determined by
the Board in light of the circumstances of each
individual case, Haag Drug Company, Incorporated,
169 NLRB 877 (1968); Sav-On Drugs, Inc., 138
NLRB 1032, 1033 (1962). The Board will not compel
a group of employees in future stores of the employer
who may constitute a separate appropriate unit to be
subject to a contract between their employer and a
union covering future stores and thus be included in
an overall unit under the guise of accretion, without
affording them the opportunity of expressing their
preference in a secret election or by some other
evidence that they wish to authorize that union to
represent them. Melbet Jewelry Co., Inc., 180 NLRB
107, 109-110 (1969); see Sheraton-Kauai Corp., 177
NLRB 25, 28 (1969). While the phrase "and future"
by itself cannot effect an accretion of a new group of
employees to the unit, it is a factor to be considered
by the Board in resolving an issue of accretion. Thus,
the Board will give controlling effect to such a
contractual provision and accrete a new group of
employees to the existing unit where they have
indicated their clear desire to be represented by the
union representing the other employees. Retail Clerks
Union, Local 870 (White Front Stores, Inc.), 192
NLRB No. 33 (1971). Since the Respondent's
striking the phrase "and future" results in a refusal to
sign the contract as negotiated in violation of Section
8(a)(1) and (5) of the Act, and since we find no merit
in its arguments attempting to justify its actions, we
shall, accordingly, grant the General Counsel's
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Utah corporation with its
headquarters at Ogden, Utah, and is engaged in the
operation of retail food stores in the western United
States, including Frazier's Market, located at 452
East Cedar Street, Pocatello, Idaho. Since November
2, 1971, the Respondent has been a member of the
Pocatello Multi-Employer Bargaining Unit, an asso-
ciation which represents grocery store operators in
the vicinity of Pocatello, Idaho, in collective bargain-
ing with labor organizations. In the course and
conduct of their aggregate business operations, the
members of the Association realize an annual gross
income in excess of $500,000 and purchase goods
and supplies from outside the State of Idaho valued
in excess of $50,000.
We find, on the basis of the foregoing, that
Respondent 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.
11. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union , Local No. 560 chartered by
Retail Clerks International Association , AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The following employees constitute a unit
appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
All employees employed by the grocery store
members of the Pocatello Multi-Employer Bar-
gaining Unit in their stores situated in Pocatello,
Idaho, and vicinity, including those employed by
the Respondent in its Pocatello store, excluding
meat department employees, restaurant depart-
ment employees, bakery employees, office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
B. Under Section 9(a) of the Act the Union has
been the exclusive representative of all the employees
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the unit for the purposes of collective bargaining
with the Respondent.
C. Since November 2, 1971, the Respondent has
been a member of the Pocatello Multi-Employer
Bargaining Unit and the Idaho Employers Council
has bargained for the group.
D. On November 13, 1971, agreement between
the Union and the Pocatello Multi-Employer Bar-
gaining Unit was reached concerning the terms and
conditions of a new collective-bargaining agreement
covering the present and future employees in the
unit, which was reduced to writing.
E. In December 1971, on a date not specified, the
Respondent signed a copy of the contract agreement
with the words "and future" stricken from article 1,
section 1.01.
F. On or about December 30, 1971, the Union
requested the Respondent to sign the contract as
negotiated. Since that time the Respondent has
refused to sign the contract without striking the
words "and future."
Accordingly, we find that the Respondent has
refused to sign the contract agreed to by its
authorized representatives since December 30, 1971,
and by such refusal has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in
section III, above, occurring in connection with its
operations described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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, sign the contract as negotiated on its
behalf by its representatives, with the words "and
future" restored to article I, section 1.01.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Smith's Management Corporation d/b/a Fra-
zier's Market is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks Union, Local No. 560 chartered
by Retail Clerks International Association, AFL-
CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees employed by the grocery store
members of the Pocatello Multi-Employer Bargain-
ing Unit in their stores situated in Pocatello, Idaho,
and vicinity, including those employed by the
Respondent in its Pocatello store, excluding meat
department employees, restaurant department em-
ployees, bakery employees, office clerical employees,
professional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The above-named labor organization has been
and now is the exclusive representative of all
employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about December 30, 1971,
and at all times thereafter, to sign the contract
negotiated on its behalf by its authorized representa-
tives without striking the words "and future" from
article I, section 1.01, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged 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 mean-
ing 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
Relations Board hereby orders that Respondent,
Smith 's Management Corporation d/b/a Frazier's
Market , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to sign the contract negotiated on its
behalf by its authorized representatives with Retail
Clerks Union , Local No. 560 chartered by Retail
Clerks International Association , AFL-CIO, without
striking the words "and future" from article I, section
1.01 of the contract.
(b) In any like or related manner interfering with,
restraining , or coercing employees in- the exercise of
the rights guaranteed them in Section 7 of the Act.
FRAZIER'S MARKET
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, sign the contract as negotiated
on its behalf by its representatives with the words
"and future" restored to article I, section 1.01.
(b) Post at its store at 452 East Cedar Street,
Pocatello, Idaho, copies of the attached notice
marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board "
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 Retail
Clerks Union , Local No. 560 chartered by Retail
Clerks International Association , AFL-CIO, as
1159
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, sign the contract
negotiated in our behalf by our authorized
representatives with the Union, with the phrase
"and future" restored to article I, section 1.01.
The bargaining unit is:
All employees employed by the grocery store
members of the Pocatello Multi-Employer
Bargaining Unit in their stores situated in
Pocatello, Idaho, and vicinity, including
those employed by the Respondent in its
Pocatello store, excluding meat department
employees, restaurant department employ-
ees, bakery employees, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
SMITH 'S MANAGEMENT
CORPORATION D/B/A
FRAZIER 'S MARKET
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 10th -Floor, Republic Building, 1511
Third Avenue, Seattle, Washington 98101, Tele-
phone 206-442-4532.