Mark-It Foods

National Labor Relations Board - Board Decisions

Feb 5, 1974

208 N.L.R.B. 939 (N.L.R.B. 1974)

MARK-IT FOODS 939
Smith 's Management Corporation , d/b/a Mark-It
Foods and Retail Clerks Union , Local No. 560,
chartered by Retail Clerks International Associa-
tion, AFL-CIO. Case 19-CA-5973
February 5, 1974
DECISION AND ORDER
On March 8, 1973, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the Charging Party and
the General Counsel filed exceptions and supporting
briefs, and the Respondent filed a brief in reply to
General Counsel's exceptions.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and, for the reasons stated in the Administra-
tive Law Judge's Decision, as well as for the reasons
stated in the majority opinion in Houston Division of
the Kroger Co., 208 NLRB No. 122, has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be dismissed in its
entirety.
MEMBERS FANNING AND JENKINS, dissenting:
For the reasons set forth in the Houston Division of
The Kroger Co. issued this day,' we dissent.
1 208 NLRB No 122
DECISION
negotiated between Smith 's and the Union covering
Frazier's Market to Mark - It Foods4 pursuant to an
accretion clause in that contract.
The General Counsel and the Union contend that,
inasmuch as the Union represented a card majority of
Mark-It employees within the unit described in the
Frazier's contract and offered to submit those cards to a
check when the Union demanded that Smith 's recognize
the Union and extend the Frazier 's contract to cover the
Mark-It employees within that unit pursuant to Section
1.01 of that contract , Smith 's violated Section 8(a)(5) and
(1) of the Act by ignoring its card check offer , filing an RM
petition , and refusing to grant the Union's demands.
Smith 's concedes the conduct attributed to it above, but
contends it had a good -faith doubt of the Union 's claimed
majority and it and the affected employees have a right to
a secret ballot election and Board certification of the
results thereof prior to consideration of the Union's
demands.
Smith 's also contends , alternatively, that inasmuch as the
dispute involves the interpretation and application of
section 1 .01 of the Frazier 's contract, the Board should
defer to the grievance and arbitration provisions thereof.
The issues are: (1) whether the Union represented a
majority of Smith 's employees at Mark -It within an
appropriate unit at the time it demanded that Smith's
honor the recognition and accretion provisions of Section
1.01 of the Frazier 's contract ; (2) if so, whether Smith's
violated Section 8(a)(5) of the Act by ignoring the Union's
offer to prove its majority status by a card check , filing an
RM petition and declining to honor section 1 .01 of the
Frazier's contract pending the outcome of a Board-
conducted election; and (3 ) whether the Board should
defer to the grievance-arbitration provisions of the Frazi-
er's contract as the means voluntarily chosen by the parties
for resolution of this dispute.
All parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence , examine
and cross-examine witnesses , argue , and file briefs. Briefs
have been received from the General Counsel, union
counsel, and counsel representing Smith's.
Based upon my review of the entire record , observation
of the witnesses , perusal of the briefs, and research , I enter
the following:
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
November 28, 1972,1 I presided over a hearing at
Pocatello, Idaho, to try issues raised by a complaint issued
on September 29, based on a charge filed on August 3,
alleging that Smith's Management Corporation, d/b/a
Mark-It Foods2 violated Section 8 (a)(5) and ( 1) of the
National Labor Relations Act, as amended (hereafter the
Act), by refusing to recognize Retail Clerks Union, Local
No. 560 , chartered by Retail Clerks International Associa-
tion , AFL-CIO, 3 and extend the terms of a contract
1 All dates are 1972 unless otherwise noted
2 Hereafter called Smith's
3 Hereafter called the Union
4 Smith's operates two food stores in Pocatello, Frazier's Market, 452
East Cedar Street (hereafter called Frazier's) and Mark-It Foods, 345 West
Custer Street (hereafter called Mark-It)
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the employer-members of the Pocatello Multi-employer
Bargaining Association,5 realizes an annual gross income
exceeding $500,000 and annually purchase goods and
supplies from outside the State of Idaho valued in excess of
$50,000. It is further conceded that Smith's realizes an
annual gross volume exceeding $500,000 and annually
5 Hereafter called the Association Smith's and other grocery store
operators in Pocatello followed the practice of negotiating successive
contracts with the Union through the Association and then signing
individual contracts incorporating the terms agreed to by the Association
and the Union Smith's was a member of the Association and negotiated the
current Frazier's contract through it in late 1971 (details follow)
208 NLRB No. 123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchases goods and supplies from outside the State of
Idaho valued in excess of $50,000.
Based upon either factor, I find and conclude that
Smith 's at all times pertinent was an employer engaged in
commerce in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1951, grocery store operators in Pocatello, Idaho,
have bargained with the Union through the Association
and signed individual contracts with the Union incorporat-
ing the terms agreed upon by the Association and union
representatives.
One of the participating grocers in the Association from
its inception was Frazier's. The last negotiations preceding
the period with which we are here concerned occurred in
1968, when the Union and the Association negotiated a 3-
year contract for a term extending from September 1, 1968,
to September 1, 1971. Frazier's was an independent grocer
at that time.
B. The 1971 Negotiations
The' Association and the Union began negotiations for a
new contract in August 1971. At that time, Frazier's was
still an independently operated grocery store . Frazier's
participated in the negotiations through the Association
when they commenced in August 1971. While negotiations
were in progress (in October 1971) Frazier's was purchased
by Smith's. Smith's continued the same business with the
same employees on the same premises.
On November 2, 1971, Smith's authorized the Associa-
tion to represent it for the purpose of bargaining collective-
ly with the Union with regard to Frazier's and so notified
the Union. The Union and the Association reached
agreement on, terms for a new contract on November 13,
1971. Those terms included the following provision:
Article I
Recognition and Bargaining Unit
Section 1.01: The employer hereby recognizes the
Retail Clerks Union, Local Number .560, Retail Clerks
International Association, as the sole and exclusive
bargaining agent for all employees of the employer
employed in the employer' s present and future retail
food stores situated within the area of Pocatello, Idaho
and immediate vicinity except: Employees working in
the meat department of retail food stores who are
engaged in the handling, cutting, selling, processing,
wrapping, or displaying of meat, poultry, sausage, or
fish, frozen , chilled or smoked, in said department;
employees in the restaurant department engaged in the
preparation and serving of food for consumption in the
8 It secured a card from a ninth employee on August 31.
restaurant; bakers engaged in the production and
preparation of bakery products; managers, assistant-
managers and other supervisors as defined in the
National Labor Relations Act.
Between November, 13 and December 31, 1971, all the
employer-members of the Association but Smith's signed
individual contracts incorporating the terms of the Novem-
ber 13, 1971, Association- Union agreement.
C. Smith's Refusal to Abide by the
Negotiation-Results and the Consequences
Smith's did sign an individual contract incorporating all
the terms of the Association-Union agreement in Decem-
ber 1971, but only after striking the words "and future"
from section 1.01.
On December 30, 1971, the Union asked Smith's to sign
a contract without striking the two words . Smith's refused.
On January 28, the Union filed an unfair labor practice
charge (19-CA-5621) with the Board over the Company's
refusal to sign a contract containing all the language
negotiated by the Association and the Union. On March
14, the General Counsel issued a complaint based upon
that charge.
On June 29, the Board found a violation and ordered
Smith's to execute a contract containing the disputed
clause (197 NLRB 1156).
On July 11, Smith's complied with the Board's order.
D. The New Store
On March 28, Smith's began operation of the Mark-It
Store. The Union began to solicit authorization cards
shortly thereafter from Mark-It's employees in the unit
covered by the Frazier's contract.
By July 17, the Union secured cards from eight Mark-It
employees within the unit covered by the Frazier's
contracts There were 14 Mark-It employees within that
unit on that date.
E. The Union Majority
The Union's secretary-treasurer , Dennis Berg, testified
that he personally solicited eight authorization cards from
Mark-It employees in the classifications of stocker and
checker between April 20 and July 12 (Scott Brian and
Michael Higgins , stockers; Brenda Holt, Kathryn Blair Fil,
Reita Maret, Lois Stone, Shirlene Turner, and Marvin
Winter, checkers), and the ninth card was turned in at the
union office on August 31 by Checker Georgia Christen-
sen.
He further testified he explained the terms of the
Frazier's contract to the employees, especially section 1.01
thereof, and advised them the Union needed representa-
tion authorizations from a majority of them before the
Union could seek to secure the contract benefits for them.
He further testified he placed the date and time of each
solicitation on the back of the cards signed by the eight
employees at the time he secured them , plus his initials.
While no witnesses were called by the General Counsel or
MARK-IT FOODS 941
the Union to support Berg's testimony , the four card
signers called by Smith 's (Fil, Higgins , Stone , and Turner)
generally corroborated his testimony and confirmed that
the cards were executed voluntarily , noncoercively and
without misrepresentation.
The parties stipulated there were 14 Mark-It employees
within the unit specified in section 1.01 of the Frazier's
contract on July 17. Besides the nine named above, they
were checkers Craig, Anderson , Terry Dawson , and Ken
Jensen, produceman Edward Jensen and third man
DeMont Wiser.
Berg's testimony , which is substantially uncontradicted
and corroborated , is credited.
Based upon the Union 's July 17 possession of eight
signed cards from 8 of the 14 Mark-It employees within the
unit set out in section 1.01 of the Frazier 's contract
authorizing the Union to represent them for collective-
bargaining purposes, I find and conclude that on that date
the Union represented a card majority of Mark-It's
employees within an appropriate unit for collective-bar-
gaining purposes.
F. The Union's Recognition and Accretion Demands
The Union addressed a letter to Smith's on July 17
notifying Smith 's that a majority of the Mark-It employees
within the unit described in the Frazier 's contract had
signed cards authorizing the Union to represent them for
collective-bargaining purposes , asserting the Union was
thereby entitled to represent them and offering to submit
the cards for a check in order to effectuate section 1.01 of
the Frazier's contract by extending it to cover the Mark-It
employees within the unit.
G. The Company's Response
The Company responded on July 21 by filing an RM
petition with the Regional Office (Case 19-RM-998).
H Analysis and Conclusions
Smith's places primary reliance upon the doctrine set out
in Linden Lumber Division, Summer and Co., 190 NLRB
718; followed and applied in Arthur F. Dersey, President
and Wilder Manufacturing Co., Inc., 198 NLRB No. 123
and Sullivan Electric Company, 199 NLRB 809.
In the Linden case , after securing a card majority within
an appropriate unit, the union requested recognition. The
employer declined , and, in subsequent meetings, uniformly
refused to recognize the union until and unless a Board-
conducted election resulted in certification that the union
represented a majority of its employees within an appropri-
ate unit.
The Board decided that, absent serious independent
unfair labor practices on the part of the employer and
voluntary agreement by the parties upon a mutually
acceptable and legally permissible means for determining
the majority question other than a Board-conducted
election , the employer did not violate Section 8(a)(5) of he
Act by refusing to accept the union's authorization cards as
proof that the union represented a majority of the
employees within the unit . The Board adhered to this
principle in the Wilder case . It also cited the doctrine with
approval in the Sullivan case , though finding a violation
because the employer took his own poll and determined
that the union 's claim of majority representative status was
valid.
The General Counsel and the Union rely upon Retail
Clerks Union, Local No. 870 Retail Clerks International
Association, AFL-CIO (While Front Stores, Inc.), 192
NLRB 240 . In that case , White Front operated eight retail
stores in the San Francisco Bay area ; all but its Newark
store were under contract with the union . The White Front
Oakland-Union contract contained an accretion clause,
extending the contract to any new store opened by White
Front within the union's territorial jurisdiction. The
Newark store opened during the contract 's term and the
union requested extension of the Oakland contract to the
Newark store . White Front declined the request, absent
proof of union majority status within an appropriate unit
of the Newark employees , but offered to determine the
question of majority representation within such unit by a
card check . White Front then reversed itself and withdrew
its offer to determine the majority representation question
by a card check . The union then demanded that the
question be referred to the grievance -arbitration provisions
of the Oakland contract . The company refused on the
ground the Newark store was not covered by the Oakland
contract . The union then placed pickets on the Newark
store and other stores of White Front in the area, as well as
White Front's regional office. White Front filed a charge
asserting that the union violated Section 8(b)(2) of the Act
by its conduct . A complaint was issued on the theory the
picketing was an illegal attempt by the union to force
White Front to apply the Oakland contract to the Newark
store when the union did not represent a majority of the
Newark employees in an appropriate unit. White Front also
filed an RM petition , but withdrew it.
The hearing disclosed that the union possessed an
authorization card majority within an appropriate unit at
the Newark store when picketing commenced (though it
subsequently lost that majority status, unbeknown to it).
Upon disclosure of these facts at the hearing, the
complaint was amended to allege unlawful picketing after
the date the union lost its majority representative status.
The Board dismissed the complaint on two grounds:
1. Since the union did not know of its loss of majority
status, it could not be held accountable for picketing
thereaf ter.
2. Inasmuch as a majority of the White Front-Newark
employees within an appropriate unit had signed cards
authorizing the union to represent them for collective-
bargaining purposes and a determination of the validity of
the union's claim of majority representative status based
thereon was prevented by White Front 's unilateral with-
drawal of its offer to test the validity of that claim by a
card check and withdrawal of its RM petition, the Board
would accept the card majority as valid and honor the
accretion clause of the contract between White Front-
Oakland and the union.
In this case , while the Union had a card majority at the
time it made its recognition and accretion demands,
Smith's rejected its card -check offer at the outset and sought
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Board election. It's petition has not been withdrawn, but
rather awaits this decision before processing.
While Smith's is bound by the accretion clause in its
Frazier's agreement, as the Board stated in the earlier
Smith's decision (197 NLRB 1156), the question of whether
the employees of Mark-It will accrete to the existing unit
... is a matter to be determined by the Board in light
of the circumstances of each individual case . . . . 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 opportunity of
expressing their preference in a secret election or by
some other evidence that they wish to authorize that
union to represent them.
The Frazier's contract does not contain a provision
setting out a procedure for determining the validity of the
Union's claim of,majority representative status within the
accreted unit, nor did the parties agree on any procedure
for such determination when the question arose.
Under the rationale of the Linden decision and cases
following it, it would appear that Smith's did not violate
Section 8(aX5) and (1) of the Act by referring the Union's
claim of majority representative status to the Board for
determination in a representation proceeding and ignoring
the Union's card check offer. White Front is readily
distinguishable, since White Front, by its conduct, prevent-
ed a determination of the representation question.
I therefore find and conclude that Smith's did not violate
7 Co!/,yer Inrulated Wire, 192 NLRB 837.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions and recommended Order herein shall, as provided in Sec.
Section 8(a)(5) and (1) of the Act by its refusal to extend
the Frazier's contract in the absence of a Board certifica-
tion that the Union represents a majority of Mark-It's
employees within the unit described in section 1.01 of the
Frazier's contract.
I therefore shall recommend that the complaint be
dismissed.
With respect to Smith's Collyer7 defense, I find it
unnecessary to resolve this issue in view of the foregoing
resolution of the dispute.
CONCLUSIONS OF LAW
1. Smith's is an employer engaged in commerce in a
business affecting commerce and the Union is a labor
organization as those terms are defined in Section 2(2), (5),
(6), and (7) of the Act.
2. Since July 17, the Union has represented a card
majority of Mark-It's employees within the unit described
in section 1.01 of the Frazier's contract.
3. Smith's did not violate Section 8(ax5) and (1) of the
Act by its refusal to accede to the Union's recognition and
accretion demands until and unless the Board certifies that
the Union represents a majority of Mark-It's employees
within the unit set out in paragraph 2 above.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I issue the following recommended:
ORDERS
The complaint shall be dismissed in its entirety.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.