King Soopers, Inc.

National Labor Relations Board - Board Decisions

Sep 13, 2000

332 N.L.R.B. 32 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32
King Soopers, Inc. and Bakery, Confectionery, To-
bacco Workers, and Grain Millers International
Union, Local 26, AFL–CIO and United Food
and Commercial Workers Union, Local 7. Cases
27–CA–16091 and 27–CA–16197
September 13, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On June 21, 1999, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief,1 and the General
Counsel and Charging Party United Food and Commer-
cial Workers Union, Local 7 (UFCW Local 7) filed an-
swering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3and to
adopt the recommended Order as modified.4

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 We agree with the judge that the Respondent’s relocated Broom-
field store #86 is substantially the same operation as the Respondent’s
closed Broomfield store #8, and that the transferees from store #8 con-
stitute a substantial percentage of the employee complement of store
#86. Indeed, we note that an overwhelming majority of the employees
at store #86 were transferees from store #8. In these circumstances,
Member Hurtgen finds it unnecessary to rely on the mathematical per-
centage of 40 percent minimum relied on by the judge in determining
what constitutes a substantial percentage of the employee complement
at store #86.
We agree with the judge that the address of the Respondent’s store
#8 contained in the recognition clause of UFCW Local 7’s collective-
bargaining agreement with the Respondent is the parties’ descriptive
recitation of the physical location of store #8 and is not indicative of the
collective-bargaining agreement’s geographic limitation to store #8. In
so doing, we adopt the judge’s application of the Board’s present “clear
and unmistakable wavier” analysis. See Teamsters Local 71, 331
NLRB No. 18 (2000). Member Hurtgen reaches this result under a
“contract coverage” analysis rather than a “waiver” analysis. See his
partial dissent in Dorsey Trailers, Inc., 327 NLRB 835, 836 (1999).
Under this analysis, Member Hurtgen finds that the intention of the
parties was to have the contract cover the unit employees. Those unit
employees were at store #8 at the time of the contract and are now at
store #86. However, this fact does not gainsay the contractual intention
to cover the unit employees. Member Hurtgen would reach the same
result under a “waiver” analysis.
3 The judge concluded that the February 27, 1990 agreement be-
tween the Respondent and Bakery, Confectionery, Tobacco Workers,
and Grain Millers International Union, Local 26, AFL–CIO “accreted”
the Broomfield bargaining unit into the Denver bargaining unit. How-
ever, we note that the Broomfield bargaining unit “merged” with the
Denver bargaining unit, and that “merger”—not “accretion”—is the
correct designation for what occurred.
4 There is an inadvertent omission in the judge’s recommended Or-
der with respect to the affirmative requirement that the Respondent
offer transfer privileges to employee Lisa Hughson. We hereby correct
it. We also note that the judge erroneously indicated that Sullivan Bros.
Printers Inc., 317 NLRB 561 (1995), had been denied enforcement in
the First Circuit. The Board’s decision was affirmed in Sullivan Bros.
Printers, Inc. v. NLRB, 99 F.3d 1217 (1996). The judge inadvertently
cited the appellate proceeding involving the Board’s request for a 10(j)
injunction in that case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, King
Soopers, Inc., Broomfield, Colorado, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Within 14 days from a request, permit employee
Lisa Hughson to transfer to another store in the Bakery
Workers Local 26 Denver bargaining unit under the
terms and conditions set forth in the collective-
bargaining agreement between the Respondent and Bak-
ery Workers Local 26.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain with Bakery Work-
ers Local 26, or withdraw recognition from the Union as
the exclusive bargaining representative of the bakery
department employed by us at our store #86 in Broom-
field, Colorado.
WE WILL NOT refuse or fail to apply the terms and
conditions of our collective-bargaining agreement with
Bakery Workers Local 26 covering store #8 to store #86
in Broomfield.
WE WILL NOT refuse to bargain with UFCW Local 7
or withdraw recognition from the Union as the exclusive
bargaining representative of the grocery and delicatessen
employees employed by us at our store #86 in Broom-
field, Colorado.

332 NLRB No. 5
KING SOOPERS, INC. 33
WE WILL NOT refuse or fail to apply the terms and
conditions of employment of our grocery and delicates-
sen collective-bargaining agreement with UFCW Local 7
covering store #8 to store #86 in Broomfield.
WE WILL NOT bypass UFCW Local 7 and deal di-
rectly with bargaining unit employees concerning terms
and conditions of employment for grocery and delicates-
sen employees at store #86 in Broomfield.
WE WILL NOT refuse to permit bakery department
employees to transfer from one store to another store
under the terms and conditions set forth in the Denver
area collective-bargaining agreement between us and
Bakery Workers Local 26.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in any of your rights set
forth above which are guaranteed by the National Labor
Relations Act.
WE WILL bargain with Bakery Workers Local 26 as
the exclusive representative of the bakery department
employees employed at our store in Broomfield, Colo-
rado.
WE WILL permit employee Lisa Hughson to transfer
to another store in the Bakery Workers Local 26 Denver
bargaining unit under the terms and conditions set forth
in the Denver area collective-bargaining agreement be-
tween us and Bakery Workers Local 26.
WE WILL bargain with UFCW Local 7 as the exclu-
sive representative of the grocery and delicatessen de-
partment employees employed at our store #86 in
Broomfield, Colorado.
WE WILL make all fringe benefit contributions as
provided by the collective-bargaining agreements with
Bakery Workers Local 26 (bakery department employ-
ees) and UFCW Local 7 (grocery and delicatessen de-
partment employees), and make whole the employees in
each bargaining unit by reimbursing them with interest
for any losses they may have suffered as a result of our
failure to abide by the terms of the two collective-
bargaining agreements referenced above.
KING SOOPERS, INC.

Barbara E. Greene and Angela Harmeyer, for the General
Counsel.
Raymond M. Deeny and Emily Keimig (Sherman & Howard),
of Colorado Springs and Denver, Colorado, for the Respon-
dent.
Walter C. Brauer III (Brauer, Buescher, Valentine, Goldham-
mer, Kelman, & Eckert), of Denver, Colorado, for Bakery
Workers Local 26.
Michael J. Belo, of Wheat Ridge, Colorado, for UFCW Lo-
cal 7.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Denver, Colorado, on April 7 and 8, 1999. On
October 13, 1998, Bakery, Confectionery, and Tobacco Work-
ers International Union, Local 26, AFL–CIO, (Bakery Workers
Local 26) filed the charge in Case 27–CA–16091 alleging that
King Soopers, Inc. (Respondent) committed certain violations
of Section 8(a)(5) and (1) of the National Labor Relations Act
(the Act). On January 4, 1999, United Food and Commercial
Workers Union, Local 7 (UFCW Local 7) filed the charge in
Case 27–CA–16197 against Respondent. On March 4, 1999,
the Regional Director for Region 27 of the National Labor Re-
lations Board issued a consolidated complaint and notice of
hearing against Respondent, alleging that Respondent violated
Section 8(a)(5) and (1) of the Act. Respondent filed timely
answers to the complaint, denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with various offices and facili-
ties in Colorado, where it has been engaged in the retail sale of
groceries and related items. Respondent annually derives gross
revenues in excess of $500,000 and purchases and receives
goods and materials valued in excess of $5000 from outside the
State of Colorado. Accordingly, Respondent admits and I find
that Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits and I find that UFCW Local 7 is a labor
organization within the meaning of Section 2(5) of the Act.
Based on a merger between the Bakery, Confectionery, and
Tobacco Workers International Union with the Grain Millers
International Union, Respondent denied the labor organization
status of Bakery Workers Local 26.2 That issue will be dis-
cussed in more detail below.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent operates a chain of grocery supermarkets in
Colorado, including one store in Broomfield, Colorado. This
case involves Respondent’s Broomfield store. Prior to Decem-
ber 9, 1998, Respondent operated one store in Broomfield,
located at 5150 West 120th Avenue (store #8). On December
9, 1998, Respondent closed store #8 and opened a replacement
store at 12167 Sheridan Boulevard in Broomfield (store #86),
approximately a thousand yards from the former location.
Bakery Workers Local 26 has represented the employees in the

1 The credibility resolutions here have been derived from a review of
the entire testimonial record and exhibits, with due regard for the logic
of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings here, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
2 The General Counsel amended the complaint to change the name
of Bakery Workers Local 26 from Bakery, Confectionery, and Tobacco
Workers International Union, Local 26 to Bakery, Confectionery and
Tobacco Workers, and Grain Millers International Union, Local 26.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34
store bakery in the Broomfield store since 1990. UFCW Local
7 had represented the grocery and delicatessen employees in the
Broomfield store since at least 1993. Prior to opening the new
Broomfield store, Respondent notified the grocery and delica-
tessen employees that the new Broomfield store would be oper-
ated on a nonunion basis. Respondent also notified UFCW
Local 7 that it considered its collective-bargaining agreement
limited to the specific site of 5150 West 120th Avenue and,
therefore, not binding on the new location. Respondent later
took the same position regarding the bakery employees and
notified Bakery Workers Local 26 that the new store would
operate on a nonunion basis. Respondent notified both Unions
that they could seek representation through the Board’s proc-
esses. Both Unions took the position that their collective-
bargaining agreements were still in effect and were not affected
by the relocation of the store.
In this case, the General Counsel alleges that Respondent
failed and refused to recognize the Unions at store #86 after
moving the operation and employees from store #8 to store #86
on December 9, 1998. The complaint also includes allegations
that Respondent unlawfully notified employees that the new
store #86 would be operated on a nonunion basis rather than
under their collective-bargaining agreement, dealt directly with
employees represented by UFCW Local 7, and unilaterally
changed terms and conditions of employment from the respec-
tive bargaining agreements to the terms and conditions of em-
ployment that Respondent maintained for unrepresented em-
ployees. Respondent denies the commission of any unfair labor
practices. Further, Respondent contends that the bargaining
agreements with each of the Unions were “site specific,” lim-
ited to the address of store #8, and could not be applied to store
#86 or any other location. Further, as mentioned above, Re-
spondent contends that it has no obligation to bargain with
Bakery Workers Local 26 on the ground that the merger be-
tween the Bakery Workers International Union and the Grain
Millers International Union raised a question concerning repre-
sentation.
B. The Bargaining Relationships
Respondent operates over 80 retail grocery stores in the State
of Colorado. In many of these facilities, the grocery clerks are
represented by UFCW Local 7 and the bakery department em-
ployees are represented by Bakery Workers Local 26. In addi-
tion to representing store clerks, UFCW Local 7 represents
meat department employees in bargaining units separate and
apart from the grocery clerks units.
Respondent operated King Soopers store 8, located at 5150
West 120th Avenue in Broomfield, Colorado. The UFCW
Local 7 represented the grocery and delicatessen employees at
this store in a single store bargaining unit:

All employees actively engaged in the handling and selling of
merchandise, including part-time workers who work regularly
one (1) day or more a week, and delicatessen employees, em-
ployed by the Employer in the grocery store owned or oper-
ated by the Employer at 5150 West 120th Avenue, Broom-
field, Colorado (such jurisdiction to apply to the current store
represented by the Union), but excluding all store managers,
first assistant managers, associate managers, office and cleri-
cal employees, meat department employees, demonstrators,
watchmen, guards, professional employees and supervisors as
defined in the National Labor Relations Act as amended.

Respondent recognized UFCW Local 7 as the bargaining
representative of the grocery and delicatessen employees at
store 8 based on a card check in 1987. The 1993–1996 collec-
tive-bargaining agreement between Respondent and the UFCW
Local 7 contained the recognition clause set forth above. At the
expiration of the 1993–1996 agreement a strike ensued. On
June 14, 1996, the parties entered into a strike settlement
agreement. However, a new collective-bargaining agreement
for store 8 was not reduced to writing. The parties used the
collective-bargaining agreement for the Metropolitan Denver
Area facilities as their working document. There were four
major differences between the Metropolitan Denver agreement
and the single Broomfield store agreement. The Denver area
agreement covers “stores owned or operated by the Employer
within the metropolitan area of Denver, Colorado (such juris-
diction to apply to current stores represented by this Union and
future stores only of the Employer).’’ In addition the four ma-
jor differences were: the clerks in the Broomfield store were
covered under Respondent’s nonunion health plan; the vendor
stocking language at the Broomfield store was broader; the
Broomfield store did not have a union–security clause; and the
Broomfield store unit included delicatessen employees.
No evidence was offered to explain the language in the rec-
ognition clause, “such jurisdiction to apply to the current store
represented by the Union”. The collective-bargaining agree-
ment between UFCW Local 7 and Respondent covering the
meat department employees at the Broomfield store contained
language applying to the meat market or meat markets owned
or operated by Respondent in Broomfield, Colorado. The rec-
ognition clause further stated, “Within the geographical juris-
diction of this Agreement, any new stores operated by the Em-
ployer shall be accreted and shall be covered by this Agree-
ment.” The meat department bargaining contract was applied
to store 86 when Respondent opened that store in December
1998.
In February 1990, Bakery Workers Local 26 was certified as
the exclusive bargaining representative of the bakery employ-
ees at the Broomfield store. The unit was as follows:

All full-time and part-time production bakers and cake deco-
rators employed by King Soopers, Inc., at its retail bakery out-
let located at 5105 West 120th Avenue, Broomfield, Colo-
rado; but excluding all other employees, including office
clerical employees, supervisors and guards as defined in the
Act.

On February 27, 1990, Respondent and Bakery Workers Lo-
cal 26 executed an agreement whereby this single store unit
was accreted into the Denver Metropolitan area multi-store
bargaining unit. The agreement states “effective February 25,
1990, the employees of the Broomfield bargaining unit shall be
accreted into the Denver bargaining unit and by this agreement
the Denver bargaining unit shall be expanded to cover the in-
clusion of this unit.” The 1997–2001 agreement describes the
unit as follows:

Employees employed in the classifications set forth in
this Agreement at the Employer’s Denver, Colorado plant
and in-store bakeries in the Denver Metropolitan area,
Colorado Springs, Colorado, and Pueblo, Colorado area.
Except for the Employer’s Cinna-monster and current deli
operations, any retail bakery production work performed
KING SOOPERS, INC. 35
on the premises shall be work covered under the jurisdic-
tion of this Agreement (such work to include franchised
operations and all work historically covered by this
Agreement). Excluded are all office-clerical employees,
professionals and supervisors as defined in the Act.

Respondent contended that there had been no accretion in
1990. According to Respondent, the parties had merely agreed
to apply the terms of the Denver agreement to the employees in
the Broomfield single store unit. However, I reject that argu-
ment. First, the February 27, 1990 agreement clearly states that
the Broomfield store will be an accretion to the Denver unit.
Second, starting February 1990, the parties acted consistently
with an accretion. Thus, after February 1990, there was never a
separate Broomfield contract and the terms of the Denver
agreement were applied to the Broomfield store. I find that as
an accretion to the Denver bargaining unit, the bakery depart-
ment at the Broomfield store ceased to exist as a separate unit
and became part of the Bakery Workers’ Denver multistore
bargaining unit.
C. The Closing of Store 8
On September 8, Steve DiCroce, Respondent’s director of
human resources, sent a letter to the grocery and delicatessen
employees at the Broomfield store. The letter informed the
employees that Respondent was closing store 8 and that the
employees would be offered employment at a “new” store,
store 86. The letter stated that employment at store 86 would be
under the Respondent’s General Conditions of Employment for
Non-Represented Employees rather than under the collective-
bargaining agreement. Respondent also reminded the employ-
ees that store 8 was an open shop and that employees did not
have to be union members to work at store 86. Respondent did
not send a copy of this letter to UFCW Local 7.
On September 28, DiCroce sent a letter to Ernest Duran,
president of UFCW Local 7, stating that Respondent would not
recognize UFCW Local 7 as the bargaining representative of
the clerks at the new store 86 until the Union demonstrated
majority status through an NLRB election. Duran responded
stating that the bargaining unit employees should be covered by
the contract. On November 24, Duran again wrote DiCroce,
stating that it was his position that the collective-bargaining
agreement from store 8 should apply at store 86. On December
7, Michael Belo, general counsel of UFCW Local 7, wrote
DiCroce requesting recognition for UFCW Local 7 at store 86
and application of the contract for store 8 at store 86. In early
December, UFCW Local 7 notified Respondent that since store
86 was going to be operated on a nonunion basis, grocery and
delicatessen employees should be released from their dues-
checkoff obligations. In mid-December, Respondent notified
the grocery and delicatessen employees that dues would not be
deducted from their paychecks.
On September 30, DiCroce wrote Bakery Workers Local 26
giving notice that Respondent was going to close store 8. Di-
Croce further notified the Union that Respondent would not
recognize Bakery Workers Local 26 at store 86 until the Union
demonstrated majority status through an NLRB election. In a
subsequent meeting with Avron Bergman, then the president of
Bakery Workers Local 26, DiCroce suggested a card check to
demonstrate majority status. Bergman maintained that store 86
was a replacement for store 8 and that the bargaining agreement
automatically applied.
On December 8, Respondent closed store 8 located on the
Northeast corner of 120th Avenue and Sheridan Boulevard.
The very next day, Respondent opened store 86 at 12167 Sheri-
dan Boulevard at the corner of 120th Avenue. All of the em-
ployees who were employed at store 8 began work at store 86.
The work schedule set forth at store 8 was continued at store
86. Employees were not required to fill out job or transfer ap-
plications. The employees continued to perform the same jobs
they had performed at store 8. The entire management team
from store 8 became the management team at store 86.
Store 86 is a larger and newer store than store 8. However,
the differences in operation of the two stores are minor. The
grocery clerks, delicatessen employees, and bakery department
employees were treated as nonrepresented employees. The
terms and conditions of employment for union-free employees
were implemented. Respondent ceased making contributions to
the union pension plans and discontinued dues checkoff.
The General Counsel presented the testimony of Lisa Hugh-
son, a cake decorator at store 8 and now a cake decorator at
store 86. Hughson attempted to transfer from store 86 in mid-
December. Hughson was not permitted to transfer. She was
told by the store manager that she could not transfer because
she was nonunion. The transfer was given instead to an em-
ployee in the Denver bargaining unit. In February 1999, Hugh-
son attempted to transfer and again the transfer was given to an
employee in the Denver bargaining unit. Under the collective-
bargaining agreement, employees in the bargaining unit have
certain transfer rights. Prior to the opening of store 86, Hugh-
son had transferred into store 8 as a member of the Denver
bargaining unit text.
The facts concerning Hughson’s transfer history are consis-
tent with the finding that store 8 was part of the Denver multi-
store bakery workers bargaining unit until the opening of store
86. Hughson’s testimony shows that bakery employees in
Broomfield lost the right to transfer to stores in the Denver unit
when store 86 was opened.
UFCW Local 7 represented employees at store 8 did not
have transfer rights to stores in the Denver metropolitan area
bargaining unit. UFCW Local 7 had consistently maintained,
since at least 1997, that the Broomfield store was a separate
bargaining unit and, therefore, only employees in the Denver
bargaining unit had transfer rights within that bargaining unit.
D. The Merger of the International Unions
1. Facts
The General Counsel amended the complaint to state the cor-
rect name of Bakery Workers Local 26 after the merger of its
International Union with the Grain Millers International Union.
Respondent denied the labor organization status of the Bakery
Workers Local 26 and raised the issue of whether the merger
raised a question concerning representation.
Bakery Workers Local 26 presented evidence that in March
1998, Arvan Bergman, then a member of the International’s
executive board and president of the local union, notified the
Union’s executive Board that their would be a convention of
the International Union in the summer of 1998. The documen-
tary evidence shows only that Bergman notified the executive
board of the convention and the need to vote on delegates for
the convention. However, Bergman testified that he orally
informed both the executive board and the membership that the
subject of the merger would be raised at the convention. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36
membership voted on delegates to the convention by a secret
ballot election. Bergman testified that he mentioned the merger
to Stephanie Bouknight, Respondent’s manager of labor rela-
tions, whenever he saw her between March and October 1998.
After, the Grain Millers approved the merger agreement, in
October 1998, Bergman informed Steve DiCroce, Respondent’s
director of human resources, and Bouknight that the two Inter-
national Unions had agreed to merge.
At the convention, a resolution was presented asking the
delegates to support a merger with the Grain Millers Interna-
tional Union. The delegates from Bakery Workers Local 26
voted on behalf of the membership on the question of the
merger. The proposed merger was approved by the Bakery
Workers International Union in July 1998. The Grain Millers
International Union approved the merger in October 1998. A
merger agreement was signed by both International Unions in
December 1998. The merger became effective on January 1,
1999. In February 1999, Wayne Brewer, Bakery Workers
Local 26’s president as of January 1, 1999, notified DiCroce,
that he wished to change the Union’s name in the just negoti-
ated bargaining agreement to reflect the merger of the two In-
ternational Unions. DiCroce answered that he had “no prob-
lem” with that change.
After the merger each local union of the Bakery Workers In-
ternational Union, including Bakery Workers Local 26, retained
its charter and became affiliated with the Bakery, Confection-
ery, Tobacco Workers, and Grain Millers International Union.
Bakery Workers Local 26 did not merge with any other local
union. Bakery Workers Local 26 continued to negotiate and
administer collective-bargaining agreements and to process
grievances just as it had done prior to the merger. There was
no change in its dues structure. There was a change in the lead-
ership of Local 26 as of January 1, 1999. However, that change
was as a result of regular intraunion elections and was unrelated
to the merger. The duties and responsibilities of Local 26’s
officers did not change. There was no change in Local 26’s
assets, business records, or physical facilities. The only notice-
able effect of the merger was the name change reflecting the
Grain Millers as part of the International Union.
2. Conclusions
The Board has judged union mergers or affiliations to pre-
sent the dual issues of whether union members were accorded
due process in the affiliation process and whether the “new”
representative is a continuation of the incumbent. Thus the
Board examines whether those entitled to participate in the
process are afforded an opportunity to consider, discuss, and
vote on the question through a reasonably democratic process,
and whether the merger does not alter the fundamental identity
of the selected representative so as to disrupt the continuity of
representation. See NLRB v. Commercial Workers Local 1182
(Seattle-First National Bank), 475 U.S. 192 (1986). The Su-
preme Court in Seattle-First specifically declined to consider
the propriety of the Board’s due process requirements, 475 U.S.
192, at fn. 6. Thereafter in Paragon Paint Corp., 317 NLRB
747, 748 (1995) and Sullivan Bros. Printers, 317 NLRB 561,
562 fn. 2 (1995). the Board found it unnecessary to determine,
in light of the Supreme Court’s opinion in Seattle First,
whether the Board has the authority to impose due process
requirements.
The policy encouraging stable bargaining relationships
yields only in those circumstances where the organizational
changes are so vast as to give rise to a more than speculative
inference that majority support no longer exists. Action Auto-
motive, 284 NLRB 251 (1987) The party seeking to avoid its
bargaining obligation has the burden of showing that the organ-
izational changes are “so dramatic that the postaffiliation union
lacks substantial continuity with the preaffiliation union.” Sul-
livan Bros. Printers, 317 NLRB 561 (1995), enf. denied 38
F.3d 58 (1st Cir. 1994).”
I first look at whether there was any change in the fundamen-
tal identity of Bakery Workers Local 26 because I believe that
the nature of the change is a significant factor in determining
what authority the Board has to review such internal union
matters. Here there was no merger of Local 26 with another
local union or with another international union. Rather, it ap-
pears that the Bakery Workers International Union absorbed the
Grain Millers International Union. However, whether this con-
solidation is considered a merger of the two International Un-
ions or an absorption of the Grain Millers by the Bakery Work-
ers, there was no significant change in Local 26.
As stated above, Bakery Workers Local 26 continued to ne-
gotiate and administer contracts and process grievances just as
it had done before the merger. There was no evidence of any
change in its relationship with the Respondent. There was no
change in the duties and responsibilities of the officers of Local
26. There was no change in the rights or obligations of the
membership of Local 26. There was no effect financially on
the Union. The only noticeable change was the inclusion of
Grain Millers in the title of the affiliation. There is no evidence
that any member of Local 26 or any member of any other local
of the Bakery Workers objected to the merger. Under such
circumstances, the Employer should not be heard to complain.
Under such circumstances, the Employer should not be permit-
ted to avoid his obligations under the Act.
Respondent argues that the employee-members of Local 26
were not afforded due process. Normally, the Board would
look to see if employees entitled to participate in the process
are afforded an opportunity to consider, discuss, and vote on
the question through a reasonably democratic process. Here,
there is no evidence that the employees discussed or voted on
the merger directly. However, they were orally informed of the
convention and that the subject would be raised at the conven-
tion. The employees participated in a secret ballot election and
elected delegates to the convention. The delegates voted on the
question of the merger. While that process may not conform to
the Board’s representation election procedures, it certainly is a
democratic method of deciding such issues. In this country, we
elect representatives to Congress, who then vote on legislation.
The procedure used here, seems analogous.
The Board’s analysis rather than being mechanistic and us-
ing a strict checklist, is directed at analyzing the totality of
circumstances in order to give paramount effect to employees’
desires. The relevant factors are: (1) continued leadership
responsibilities by existing union officials; (2) perpetuation of
membership rights and duties (membership eligibility and dues
structure); (3) continuation of the manner in which contract
negotiations administration, and grievance processing are effec-
tuated; and (4) the preservation of the certified representative’s
assets, books and physical facilities. See Sullivan Bros. Print-
ers, supra, 38 F.3d 58 (1st Cir. 1994). In this case, all of the
four factors listed above show no change in Bakery Workers
KING SOOPERS, INC. 37
Local 26 which would effect the employees’ desires for contin-
ued representation.
Accordingly, I find that the merger of the two International
Unions was essentially an internal union matter and that Bakery
Workers Local 26’s structure did not change sufficiently so as
to permit Respondent to challenge the merger of the Interna-
tional Unions or the name change of Local 26. Therefore, I
find that the merger of the two International Unions does not
permit Respondent to evade its bargaining obligation to the
employees represented by Local 26.
Analysis and Conclusions
A. The Relocation of the Bargaining Units to a New Store
The Board holds that an employer must apply an existing
contract to a relocated facility if the operations at the new facil-
ity are substantially the same as those at the old facility and if
the transferees from the old facility constitute a substantial
percentage of the new store employee complement. Westwood
Import Co., 251 NLRB 1213 (1980) enfd. 681 F.2d 664 (9th
Cir. 1982); Harte & Co., 278 NLRB 947 (1986); and Rock
Bottom Stores, 312 NLRB 400 (1993) enfd. 51 F.3d 366 (2d
Cir. 1995).
In Westwood Import Co., 251 NLRB 1213 (1980), the re-
spondent-employer moved its facility from San Francisco, Cali-
fornia, to Hayward, California, a distance of 30–35 miles, dur-
ing the term of the collective-bargaining agreement. The re-
spondent-employer withdrew recognition from the union, as-
serting that it had a good-faith doubt of the charging party-
union’s majority status. The Board found a violation of Section
8(a)(5) and (1) of the Act. The Board held that an existing and
effective collective-bargaining agreement remains in effect
following a relocation, provided operations and equipment
remain substantially the same at the new facility, and a substan-
tial percentage of the employees at the old facility transfer to
the new location.
In Rock Bottom Stores, 312 NLRB 400 (1993), the Board re-
affirmed this test and applied it to retail grocery stores. The
Board held that the term “a substantial percentage of the em-
ployees” means at least 40 percent of the employees from the
old store. The Board reasoned that this rule constitutes an ap-
propriate balance between the transferees’ interest in retaining
the fruits of their collective-bargaining activity and the newly
hired employees’ interest in choosing whether to have union
representation.
Applying this principle to the instant case, the operations of
the new Broomfield store were substantially the same as at the
old store. The new store was newer and slightly larger. When
the new store opened all six employees in the bakery depart-
ment had been transferred from the old store. In the clerks and
delicatessen departments, 145 out of 150 employees had trans-
ferred from the old store. Under these circumstances, it seems
clear that Respondent was obligated to continue to recognize
the Unions and to apply the terms of the contracts at the new
store.
Respondent argues that UFCW Local 7 would not permit
employees to transfer so that the number of transferees working
in the new store is an artificial number. The facts show that
UFCW Local 7 had taken the position that the collective-
bargaining agreement in the Metropolitan Denver bargaining
unit gave preference to employees in that bargaining unit.
Therefore, UFCW Local 7 took the position that employees in
the single store unit in Broomfield did not enjoy such privi-
leges. That position was consistent with the Union’s position
prior to this dispute. In Rock Bottom Stores, the Board held
that recent hires and recent transferees counted for purposes of
determining whether a substantial number of employees from
the old store had transferred to the new store. Previously, in
Westwood Imports, the Board held that recent hires should be
counted in determining whether a substantial number of em-
ployees had transferred from the old facility. Thus, I find that
it is appropriate to consider all of the transferees from store 8 in
determining that a substantial majority of the employees trans-
ferred to the new location.
Respondent argues that the two Unions had agreed to “store
specific language” and thereby waived the right to represent
employees at the new store without a NLRB election or card
check. Respondent cites Waymouth Farms, 324 NLRB 960
(1997), enfd. in part and denied in part 172 F.3d 598 (8th Cir.
1999), to support its argument that by listing the store address
in the unit descriptions the Unions agreed to limit recognition
to the specific street address of store 8 and to no other location.
First, this argument has no factual basis regarding the bakery
unit. That unit which was certified by the Board in 1990, was
made an accretion to the Denver metropolitan area unit in Feb-
ruary 1990. Thereafter, the store was treated as part of a multi-
store unit. There is simply no factual basis to argue that the
unit was a single store unit or “site specific” unit.
The clerks and delicatessen employees’ collective-bargaining
agreement did cover only a single store unit. The Board will
honor a geographic limitation clause in which a union waives
employees’ rights to continued representation at a new facility
as long as there is no evidence that the employer has secured
the waiver by “taking any action to mislead the Union or to
keep the Union uninformed.” Waymouth Farms, 324 NLRB
960 (1997) enfd. in part and enforcement denied in part 172
F.3d 598 (8th Cir. April 5, 1999).
In Waymouth Farms, the collective-bargaining agreement
recognized the charging party-union as the bargaining represen-
tative of the unit employees at Waymouth Farms’ “Plymouth,
Minnesota plants, and at no other geographic locations.” The
Board found that the respondent-employer had failed to bargain
in good faith over the effects of the closing of its store in Ply-
mouth, Minnesota. Waymouth Farms had opened a new plant in
New Hope, Minnesota, 6 miles away from the Plymouth plant.
The Board found that the respondent-employer had failed and
refused to bargain in good faith with the union by misrepresent-
ing to the union its intentions and plans regarding relocation of
respondent’s facility located in Plymouth, Minnesota. With
respect to the recognition clause, the Board found that the
charging party-union expressly stated that it was accepting the
geographic limitation on recognition in large part due to its
belief that it could successfully organize the employees at a
new location. Further, the Board found that the union agreed to
the geographic limitation in exchange for a union security
clause. Based on its finding that the respondent-employer had
fraudulently concealed the intended location of its new store,
the Board ordered the respondent-employer to recognize and
bargain with the union at the new plant. The Board noted that
absent the language of the contract limiting its application to
plants in Plymouth, Minnesota, under Harte & Co., 278 NLRB
947 (1986), the contract from the old Plymouth plant would
apply at the New Hope plant. However, due to the geographic
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 38
limitation agreed to by the union, the Board did not order the
respondent to apply the Plymouth contract to the New Hope
employees. The court of appeals affirmed the Board’s finding
of a violation but denied enforcement of the remedial order
with respect to recognition and bargaining. The court found
that the language of the initial collective-bargaining agreement
was clear and that the union was bound by it. The court found
that the charging party-union had agreed to the geographic
limitation on representation in exchange for a union-security
clause. Thus, the court held that the Board could not order the
respondent to recognize and bargain with the union at the New
Hope facility.
However, this case is easily distinguishable from Waymouth
Farms. In this case the unit is described as the employees at
“the grocery store owned or operated by the Respondent at
5150 West 120th Avenue, Broomfield, Colorado (such jurisdic-
tion to apply to the current store represented by the Union).
First there is no clear language that the UFCW Local 7 waived
its right to represent the employees at another location. The
language is consistent with the fact that Respondent operated
only one store in Broomfield. The only limitation I read into
the clause is that if Respondent owned or operated an additional
store in Broomfield, the contract would not apply. Unlike Way-
mouth Farms there is no clear or unambiguous geographic limita-
tion. Further, there was no evidence that the parties understood
the language “such jurisdiction to apply to the current store repre-
sented by the Union” as a waiver of the UFCW Local 7’s right to
represent the employees if the store relocated to another location
in Broomfield.
Respondent argues that by listing 5150 West 120th Avenue,
the parties agreed that the contract would apply to no other
location. I note that in my 28 years of experience, I have found
that in Board certifications it is the usual practice, particularly
in single location units, to list the address of the employer’s
facility. Certainly, by listing the address of the employer’s
facility the Board does not intend to waive the Union’s or em-
ployees’ rights to representation if the facility moves or
changes its address. Similarly, in collective-bargaining agree-
ments, it is the usual practice, particularly in single location
units, to list the address of the employer’s plant or store. I
know of no case where the Board found that to be a waiver of
representation rights at a replacement facility. To the contrary
in Westwood Imports, the Board found that the existing contract
applied at the replacement facilities despite the fact that the
Board certification and the recognition clause of the existing
collective-bargaining agreement listed the street address of the
San Francisco facility. The Board did not, in Waymouth
Farms, intend to overrule Westwood Imports, Harte & Co., or
Rock Bottom Stores. Rather, the Board cited those cases as the
traditional rule. It distinguished Waymouth Farms on the
grounds that the union had knowingly agreed to a geographic
limitation on recognition to Plymouth, Minnesota, plants and
no other geographic locations and that the union had received
consideration for such limitation or waiver.
Moreover, it is well established that a waiver of statutory
rights must be clear and unmistakable. Metropolitan Edison
Co. v. NLRB, 460 U.S. 693 (1983); Owens-Brockway Plastic
Products, 311 NLRB 519 (1993). I find no evidence of a
waiver here. Certainly, Local 7 agreed to a single store bar-
gaining unit. However, I cannot find that by using the address
of the store as a descriptive term, UFCW Local 7 agreed to
waive representational rights at a new facility. In Waymouth
Farms the evidence showed that the parties bargained for a
geographic limitation. The charging party-union received
something in return. Most important, the contract contained
clear and unambiguous language that the agreement applied to
facilities in Plymouth, Minnesota, “and no other geographic
locations.” The mere listing of store 8’s address in this case
does not establish that the parties bargained for a geographic
limitation or that Local 7 waived its right to representation at
the new store 86.
B. Additional Violations
As found above, Respondent unlawfully withdrew recogni-
tion from the two Unions at store #86 and unlawfully refused to
apply the two collective-bargaining agreements to the employ-
ees at store 86. It follows that as part and parcel of such con-
duct, Respondent unlawfully implemented terms and conditions
of employment for the employees in the bakery workers unit
and the grocery and delicatessen unit. I further find that Re-
spondent’s September notice to employees in the grocery and
delicatessen department, that store 86 would operate nonunion,
without notice to the Union, constituted an additional violation
of Section 8(a)(5) and (1). Respondent was obligated to bar-
gain with UFCW Local 7 and could not lawfully deal directly
with employees in that unit. Ad-Art, Inc., 290 NLRB 590
(1988); Master Plastering Co., 314 NLRB 349 (1994).
Finally, under the collective-bargaining agreement, em-
ployee Lisa Hughson was eligible to transfer from store 86 to
another store in the Denver bargaining unit. However, Respon-
dent based on its unlawful refusal to apply the contract denied
Hughson, the opportunity to transfer. I, therefore, find that the
refusal to transfer Hughson violated Section 8(a)(5) and (1) of
the Act.
CONCLUSIONS OF LAW
1. Respondent King Soopers, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Unions, Bakery, Confectionery, and Tobacco Work-
ers and Grain Millers International Union, Local 26, AFL–CIO
and United Food and Commercial Workers Union, Local 7, are
labor organizations within the meaning of the Act.
3. Respondent has violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition from Bakery Workers Local 26 and
refusing to apply the collective-bargaining agreement to its
store #86 in Broomfield, Colorado.
4. Respondent has violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition from UFCW Local 7, and refusing
to apply the collective-bargaining agreement to its store #86 in
Broomfield, Colorado.
5. Respondent has violated Section 8(a)(5) and (1) of the Act
by bypassing UFCW Local 7 and directly notifying employees
that store #86 would be operated on a nonunion basis.
6. Respondent has violated Section 8(a)(5) and (1) of the Act
by denying employee Lisa Hughson a transfer pursuant to its
collective-bargaining agreement with Bakery Workers Local
26.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to effectu-
KING SOOPERS, INC. 39
ate the policies of the Act. It is recommended that Respondent
be ordered to abide by the terms of its existing collective-
bargaining agreements with Bakery Workers Local 26 and
UFCW Local 7 and to the extent that it has not already done so,
make all fringe benefit contributions as required by each con-
tract, with interest determined under the standards set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979). Addition-
ally Respondent shall be required to make the employees whole
for any losses they may have suffered from Respondent’s fail-
ure to make such contributions in the manner set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1989), enfd. mem.
661 F.2d 940 (9th Cir. 1981), with interest to be provided in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.3
ORDER
The Respondent, King Soopers, Inc., its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Bakery Workers Local 26, or
withdrawing recognition from the Union as the exclusive bar-
gaining representative of the bakery department employees
employed by Respondent at its store 86 in Broomfield, Colo-
rado.
(b) Refusing or failing to apply the terms and conditions of
the collective-bargaining agreement with Bakery Workers Lo-
cal 26 covering store 8 to store 86.
(c) Refusing to bargain with UFCW Local 7 or withdrawing
recognition from the Union as the exclusive bargaining repre-
sentative of the grocery and delicatessen employees employed
by Respondent at its store 86 in Broomfield, Colorado.

(d) Refusing or failing to apply the terms and conditions of
employment of its grocery and delicatessen collective-
bargaining agreement with UFCW Local 7 covering store 8 to
Store 86.

(e) Bypassing UFCW Local 7 and dealing directly with bar-
gaining unit employees concerning terms and conditions of
employment for grocery and delicatessen employees at store
86.
(f) Refusing to permit bakery department employees to trans-
fer under the terms and conditions set forth in the collective-
bargaining agreement between Respondent and Bakery Work-
ers Local 26.
(g) 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

3 All motions inconsistent with this recommended order are hereby
denied. In the event no exceptions are filed as provided by Section
102.46 of the Board’s Rules and Regulations, the findings, conclusions,
and recommended Order shall, as provided in Section 102.48 of the
Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.
(a) Within 14 days from a request, bargain with Bakery
Workers Local 26 as the exclusive representative of the bakery
department employees employed at its store 86 in Broomfield,
Colorado.
(b) Within 14 days from a request, permit employee Lisa
Hughson to transfer to another store in the Bakery Workers
Local 26 Denver bargaining unit.
(c) Within 14 days from a request, bargain with UFCW Lo-
cal 7 as the exclusive representative of the grocery and delica-
tessen department employees employed at its store 86 in
Broomfield, Colorado.
(d) To the extent that it has not already done so, make all
fringe benefit contributions as provided by the collective-
bargaining agreements with Bakery Workers Local 26 (bakery
department employees) and UFCW Local 7 (grocery and deli-
catessen department employees), and make whole the employ-
ees in each bargaining unit in the manner set forth in the rem-
edy section of this decision by reimbursing them with interest
for any losses they may have suffered as a result of the failure
of Respondent to abide by the terms of the two collective-
bargaining agreements referenced above.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amounts due under this order.
(f) Within 14 days after service by the Regional Director,
post at its Broomfield, Colorado facility copies, in English and
Spanish, of the attached notice marked “Appendix.”4 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 27, after being signed by Respondent’s authorized repre-
sentative, shall be posted by Respondent and maintained by it
for 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure the notices are not altered, defaced or covered by other
material. In the event that, during the pendency of these pro-
ceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all
current and former employees employed by Respondent at any
time since December 9, 1998.
(g) Within 21 days after service by the Regional Director,
file with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.

4 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice “Posted By Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”