Melbet Jewelry Co., Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1969

180 N.L.R.B. 107 (N.L.R.B. 1969)

MELBET JEWELRY - ORCHARD PARK
Melbet Jewelry Co ., Inc., and I .D.S. - Orchard
Park, Inc. and Margaret Oberst , An Individual
Local 212, Retail Clerks International Association,
AFL-CIO and Margaret Oberst . Cases 3-CA-3454
and 3-CB-1115
December 15, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Upon charges duly filed on March 8, 1968, by
Margaret Oberst, an Individual, the General
Counsel for the National Labor Relations Board, by
the Regional Director for Region 3, issued a
consolidated complaint dated July 25, 1968, against
Melbet Jewelry Co., Inc., and I.D.S. - Orchard
Park, Inc., herein called Respondent Melbet,
Respondent I.D.S., and/or Respondent Employers,
alleging that the Respondent Employers did engage
in and were engaging in unfair labor practices
affecting commerce within the meaning of Sections
8(a)(1), (2), and (3) and 2(6) and (7) of the Act; and
against Local 212, Retail Clerks International
Association, AFL-CIO, herein called Respondent
Clerks, alleging that the Respondent Clerks did
engage in and were engaging in unfair labor
practices affecting commerce within the meaning of
Sections 8(b)(1)(A) and (2) and 2(6) and (7) of the
Act.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The complaint alleges in substance that since
about mid-January, 1968, pursuant to a contract
with I.D.S. of Buffalo, Inc., which contract expired
on September 12, 1967, and was not renewed until
March 1, 1968, Respondent Employers and
Respondent Clerks have applied the terms,
requirements and provisions of this contract to all of
Respondent Employers' store employees employed
at the I.D.S. - Orchard Park store, to the effect
that these employees have been required by
Respondents to become members of, and pay dues
and initiation fees to, Respondent Clerks; and
further, that on or about March 1, 1968, pursuant
to a request of Respondent Clerks, Respondent
Employers discharged employee Margaret Oberst,
because of her lack of membership in Respondent
Clerks, and since such time have failed and refused
to reinstate this employee; and finally, that the
above conduct violated Sections 8(a)(l), (2), and (3)
and 8(b)(1)(A) and (2), and that such violations were
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Respondent Clerks and Respondent Employers, on
August 5 and 6, 1968, respectively, filed answers
107
admitting certain allegations in the complaint,
affirmatively pleading certain facts, and denying the
commission of any of the unfair labor practices
alleged in the complaint.
All parties to this proceeding entered into a
stipulation of facts, which was signed by them on
December 20, 1968, and January 9, 1969. The
parties, by a Motion dated January 9 and 14, 1969,
moved that the proceedings be transferred to the
Board, stipulating that the charges, consolidated
complaint, and "Stipulation of Facts in Lieu of
Record" constitute the entire record in this case,
and that no oral argument is necessary or desired by
any of the parties. They further stipulated that they
waived a hearing before a Trial Examiner, the
making of findings of facts and conclusions of law
by a Trial Examiner, and the issuance of a Trial
Examiner's decision; and that they desired to submit
these cases for findings of facts, conclusions of law,
and order directly by the Board. On January 24,
1969, the Board approved the stipulation and
ordered the proceedings transferred to the Board.
Thereafter, the General Counsel, the Respondent
Employers, and the Respondent Clerks filed briefs.
Upon the basis of the stipulation, the briefs, and
the entire record in this case, the Board makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
EMPLOYERS
Respondent I.D.S. - Orchard Park, a
corporation incorporated under the laws of the State
of New York, is a wholly owned subsidiary of
Interstate Department Stores, Inc., which is a
corporation incorporated under the laws of the State
of Delaware. Interstate operates four retail discount
stores in the Buffalo-Niagara Falls, New York,
Metropolitan Trading Area, as part of its Topps
Division, one of these four stores being the store
operated by Respondent I.D.S. at Orchard Park,
New York. During the past year, Respondent
I.D.S., in the course and conduct of its business
operations, sold and distributed products, the gross
value of which exceeded $500,000. During the same
period, Respondent I.D.S. received goods valued in
excess of $50,000, transported to its place of
business in the State of New York in interstate
commerce directly from States of the United States
other than the State of New York.
Respondent Melbet is a Massachusetts
corporation, with principal offices and place of
business in Fall River, Massachusetts. Pursuant to a
license agreement, Respondent Melbet has been
licensed to use an area of approximately 1265
square feet of space to operate jewelry departments
in certain stores of Respondent I.D.S., including the
four Buffalo Stores. During the past year,
Respondent Melbet, in the course and conduct of its
180 NLRB No. 24
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business operations, sold and distributed products,
the gross value of which exceeded $500 ,000. During
the same period , Respondent Melbet received goods
valued in excess of $50,000, transported in interstate
commerce to its places of business directly from
States of the United States other than the States in
which its respective places of business are located.
Pursuant to a License Agreement between
Respondents Melbet and I.D . S., I.D.S . retained
control over the personnel practices and labor
relations policies affecting Melbet ' s operations in
Respondent I.D.S.'s store , and is given exclusive
authority to represent Melbet with respect to labor
relations matters.
We find, as stipulated by the parties, that
Respondent Melbet and Respondent I.D.S. -
Orchard Park are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, that they are joint employers with respect to
Melbet's employees employed at the I.D.S. -
Orchard Park store, within the meaning of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE RESPONDENT UNION
We find, as stipulated by the parties, that the
Respondent Clerks is now, and at all times material
has been , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The principal issue presented is whether, under
the circumstances of this case , the employees of a
newly opened retail discount department store can
be considered as an accretion to a preexisting unit of
employees of the employer within a metropolitan
trading area , a unit comprising two stores.'
The relevant evidentiary facts, to which the
parties stipulated , may be summarized as follows:
Topps Division operates four retail discount stores
in the Buffalo, New York, Metropolitan Trading
Area, none of which is more than approximately 5
miles from the Buffalo city limits, and which are 4.5
to 16 miles apart from each other.
Following the opening of the first two stores in
August 1964, the Respondent Clerks on September
22, 1964, requested recognition for one of the stores,
which the Employer declined , contending that only a
multistore unit was appropriate . After a further
organizing campaign , the Clerks demanded
recognition on October 26, 1964, in a unit consisting
of all I . D.S. stores in the Buffalo area, including the
first two stores opened. The Clerks was recognized
'The present case involves the accretion of a third store to a two store
unit, but in fact there are now four stores in the area. There is no evidence
in the record regarding the fourth store , which opened after the conduct
alleged herein to be violative had occurred . It is presumed that if accretion
is allowed in the case herein , that the fourth store , and any subsequent
thereto, will also be accreted
on November 18, 1964, following a card count, and
a collective- bargaining agreement was negotiated
between the Clerks and I.D.S. of Buffalo, Inc.,
covering the I.D.S. stores in the Greater Buffalo
Metropolitan Trading Area, which contract was
dated December 29, 1964. This contract provided in
pertinent part that:
Article 1, Sec. 1.2. This Agreement shall also
be binding by and between the Employer and the
Union with respect to the employees, as defined in
Article 2 of this Agreement, who are employed at
any other retail discount store of an affiliate of
the Employer which is now or is hereafter located
within the county of Allegany, Cattaragus, Erie,
Genesee, Niagara, Orleans, State of New York,
for the purpose of establishing rates of pay,
wages, hours and other terms and conditions of
employment of such employees at such other
retail discount store.
This same clause appears in the new contract, which
was effective as of March 1, 1968, between the two
Employers, Respondent I.D.S. and I.D.S. of
Buffalo, Inc., and the Clerks.
The third Buffalo store, operated by Respondent
I.D.S. - Orchard Park, was opened on November
6, 1967. In January 1968, the Clerks demanded
enforcement of the 1964 agreement with respect to
employees at this newly opened Orchard Park store,
as required by Article 1, Section 1.2 of the 1964 and
1968 contracts. These terms and provisions of the
1964, and later the 1968, contract were thereafter
applied to the Orchard Park employees as follows:
the Clerks was recognized as the sole and exclusive
bargaining agent of the employees; all employees
were required as a condition of employment at the
Orchard Park store to become or remain members
of the Clerks; the Employer deducted initiation fees
and periodic union dues from employees authorizing
such deductions; and authorized representatives of
the Clerks were permitted to enter the Employer's
store for the purpose of policing and enforcing the
contracts, including the soliciting of membership in
the Clerks. Orchard Park employees were informed
by the management and by the Clerks that the 1964
Contract would be applicable to them before the
Clerks had entered the store for the purpose of
enrolling members, and they received retroactive pay
in accordance with these contracts.
Included in the group that were required to
become and remain members of the Clerks were
Melbet's licensed department employees working in
the Orchard Park Store, among whom was
Charging Party Margaret, Oberst. On March 1,
1968, pursuant to the demands of the Clerks to
discharge Oberst in application of the provisions of
Article 3 of the 1964 and 1968 Contracts, the
Respondent Employers discharged Oberst for failure
to join the Clerks. Oberst was subsequently offered
reinstatement and backpay, unconditionally. She
accepted the backpay, but declined reinstatement.
The General Counsel refused to accept her request
MELBET JEWELRY - ORCHARD PARK 109
to withdraw the charges she had filed herein
The stores involved in the cases herein are part of
the stores under the supervision of a Group
Manager, who is also in charge of the stores in
Albany and Rochester, New York. There is a total
of seven group managers in the Topps Division of
Interstate, who are responsible for the application of
central office policies to their stores. In a city with
more than one store and no resident group manager,
the senior store manager is authorized to act in his
absence in certain limited circumstances. The
Central Office, located in New York City,
formulates and administers policies on a uniform
basis throughout the entire Topps Division,
concerning matters of merchandising, pricing,
display, store layout, advertising, operating systems
and procedures, and personnel and labor relations.
The store managers supervise the day-to-day
operations of their stores, under the supervision of
their group manager, and have authority: (a) to
reorder merchandise when permitted by the Central
office; (b) to mark down soiled or damaged goods
or to meet local competition on identifiable items;
(c) to correct but not initiate advertising, (d) to
authorize repairs costing less than $25.; (e) to recall
or lay off nonsupervisory personnel, to hire and
train replacement nonsupervisory personnel, to hire
nonsupervisory personnel within the limits of the
store staffing plan; (f) to screen supervisory
personnel for the Group Manager; and (g) to
schedule store personnel and assign them work,
subject to the store staffing plan limitations. The
store managers have no authority to establish
personnel or labor relations policies, and do not
participate in the negotiation of labor relations
contract, but they do serve as the first step in the
grievance procedure.
Conclusions
It is evident from the facts noted above, to which
the parties stipulated, that this case involves a
typical retail chain-store operation. Thus, the factors
of centralized managerial control are quite evident,
and from these factors the Respondents argue that
the appropriate unit in this case is comprised of all
stores within the metropolitan trading area, and that
the Orchard Park store is an accretion to the
existing unit. We disagree. We find that the other
factors involved in this case show that the Orchard
Park store is a separate appropriate unit, and is not
an accretion to the existing unit.2 Thus, the Orchard
Park Store was staffed by new employees recruited
through the New York State Employment Service,
there has been almost no interchange of
nonsupervisory employees between stores; and the
store manager is in charge of the day-to-day
operations of his store and possesses the power to
hire and train new employees, to layoff and recall
employees, and to act as the first step in the
grievance procedure. There is, therefore, that degree
of autonomy in the day-to-day operations of this
single store which the Board has held in other cases
under the same circumstances to warrant the finding
that a single store unit is appropriate and there is no
accretion.
The General Counsel argues that, even assuming
that a single-store unit and a multistore unit are
both appropriate, the basic principles of the Act
would require that the single store not be accreted
to the other stores. In opposition, the Respondents
urge that, absent the filing of a representation
petition by the employees or the interest of another
union, accretion is proper where "both units are
appropriate and an otherwise valid collective
bargaining agreement requires the accretion."
Assuming that both units may be appropriate, as
does our dissenting colleague, it does not follow that
the Board should permit the employees of the
Orchard Park store, in the circumstances of this
case, to be subject to a contract between their
employer and a union without their having had the
opportunity to determine for themselves whether or
not they wish to be represented by the contractual
bargaining representative.
The Board, here, must examine fundamentals and
put the Section 7 rights guaranteed the employees
and the appropriate unit concept of Section 9(b) into
proper perspective. Excessive preoccupation with
"appropriate unit" in the circumstances of this case
leads to the abrogation of those rights. Section 7 of
the Act is not subordinate to Section 9(b). As the
Board indicated in Haag Drug,' quite the opposite
is true. Section 9(b) directs the Board to select units
to "assure to employees the fullest freedom in
exercising the rights guaranteed by this Act . . ." -
which rights, of course, are those set out in Section
7. If the Board were to permit the extension of the
contracts covering other stores to the employees of
this store (thereby very effectively disenfranchising
them) on the ground that this store (although an
appropriate unit in itself) may be part of that unit
also, it would, in our opinion, do serious violence to
the mandate that employees' rights are to be
protected and that appropriate unit findings under
Section 9(b) must be designed to preserve those
rights.
N.L.R.B. v. Appleton Electric Company, et al.,
296 F.2d 202, 206, (C.A. 7), relied on by our
dissenting colleague, is factually distinguishable
from the case herein, since in Appleton the work of
the employees of the subsidiary was integrated into
the operations of the parent corporation. Our
colleague states that in view of Appleton ". . . the
Board's order cannot stand in the face of the
employees' participation in a contract negotiated in
good faith with an undominated union." It is the
'See Sheraton-Kauai Corporation , 177 NLRB No 13, Super Yalu
Stores , Inc. 177 NLRB No 63, Warehouse Markets , Inc, 174 NLRB
No 70
'Hoag Drug Company, Incorporated , 169 NLRB No 111, and the cases
cited therein and in fn 2 above
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"employees' participation" which we seek to ensure
by our decision. Under certain circumstances, we
might have found an overall unit appropriate, and
thereupon given all the employees in the three stores
an equal voice in determining their bargaining
representative. We will not, however, under the
guise of accretion, compel a group of employees,
who may constitute a separate appropriate unit, to
be included in an overall unit without allowing those
employees the opportunity of expressing their
preference in a secret election or by some other
evidence that they wish to authorize the Union to
represent them.
Accordingly, we find that Respondents Melbet
and I.D.S. - Orchard Park provided aid and
assistance to the Respondent Clerks, granted
recognition to Local 212, Retail Clerks, as the
exclusive bargaining representative of the Orchard
Park employees, extended coverage of their 1964
and 1968 agreements with Respondent Clerks to the
Orchard Park employees, and unlawfully extended
the above-described union-security agreement to the
Orchard Park employees at a time when the
Respondent Clerks did not represent an uncoerced
majority of the Respondent Employers' employees.
By these acts and conduct the Respondent
Employers violated Section 8(a)(1), (2), and (3) of
the Act.
We find that the Respondent Clerks sought and
obtained recognition as bargaining representative of
the Orchard Park employees at a time when it did
not represent an uncoerced majority of said
employees, acted in concert with the Respondent
Employers in extending coverage of the 1964 and
1968 agreements to the Orchard Park employees,
and unlawfully extended to the Orchard Park
employees the above-described union-security
agreement . By these acts and conduct the
Respondent Clerks violated Section 8(b)(1)(A) and
(2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondents set forth in section
III, above, occurring in connection with its
operations as described in section I, above, have a
close, intimate, and substantial relation 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
commerce.
V. THE REMEDY
The Board has found that the Respondent
Employers, by their assistance to and recognition of
the Respondent Union as collective-bargaining
representative of its Orchard Park employees and by
extending the coverage of its existing contract with
the Respondent Union to its Orchard Park
employees, violated Section 8(a)(1) and (2) of the
Act. The Board has further found that the
Respondent Clerks by seeking and obtaining
recognition as bargaining representative of the
Orchard Park employees at a time when it did not
represent an uncoerced majority of said employees,
and by acting in concert with the Respondent
Employers in extending coverage of the 1964 and
1968 agreements to the Orchard Park employees,
violated Section 8(b)(1)(A) of the Act. The Board
will therefore order that the Respondents cease and
desist from the said violations of the Act, cease
giving effect to the 1964 and 1968 agreements
insofar as they affect Orchard Park employees,
without, however, requiring the Employers to vary
any wage or other substantive features established
under the said contract, and that the Employers
withdraw their recognition of the Respondent Clerks
as representative of the Orchard Park employees.
The Board will also order that the Respondent
Clerks cease acting as bargaining representative of
the said employees, unless and until the Respondent
Clerks representative status with respect to said
employees has been established in a
Board-conducted election.4
Having found violations of Section 8(a)(3) and
8(b)(2) in the unlawful extension of the
union-security contract to the Orchard Park
employees, we shall follow our customary remedial
practice and order joint and several reimbursement
of the employees by Respondent Employers and
Respondent Clerks for dues and fees unlawfully
exacted from them with interest, as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent Melbet Jewelry Co., Inc., and
Respondent I.D.S. - Orchard Park, Inc. are, each
of them, employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent Local 212, Retail Clerks
International Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By unlawfully assisting and supporting the
Respondent Clerks, and by the unlawful extension
of the union-security contract to the Orchard Park
employees, the Respondent Employers engaged in
unfair labor practices within the meaning of Section
8(a)(1), (2), and (3) of the Act.
4. By demanding and accepting recognition as the
sole bargaining representative of the Orchard Park
employees, by submitting them to the terms and
'We also find that the Respondent Clerks violated the Act by causing
the Respondent Employers to discharge employee Margaret Oberst, and
that the Respondent Employers violated the Act by discharging employee
Margaret Oberst, on March 1, 1968 However, no remedy is necessary in
regard to these violations , since the stipulation reveals that Oberst was
offered unconditional reinstatement and full backpay on March 21, 1968,
and that she accepted the backpay but declined reinstatement
MELBET JEWELRY - ORCHARD PARK 111
conditions of the collective-bargaining agreement as
found herein, and by unlawfully extending the
union-security contract to the Orchard Park
employees, the Respondent Clerks restrained and
coerced, and is restraining and coercing, the
employees of the Respondent Employers in the
exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8(b)(1)(A) and (2) of the
Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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:
A. Melbet Jewelry Co., Inc., and I.D.S. -
Orchard Park, Inc., each of them and their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Contributing support and assistance to
Respondent Clerks or to any other labor
organization of its employees.
(b) Recognizing Respondent Clerks as the
bargaining representative of any of its Orchard Park
employees for the purposes of dealing with the
Employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said
labor organization shall have demonstrated its
exclusive majority representative status pursuant to
a Board-conducted election among the said Orchard
Park employees.
(c) Giving effect to the collective-bargaining
agreements of December 29, 1964, and March 1,
1968, between the Employers and Respondent
Clerks, or to any extension, renewal or modification
thereof (insofar as it applies to Orchard Park
employees): provided, however, that nothing herein
shall require the Respondent Employers to vary or
abandon any wages, hours or other substantive
feature of its relations with its Orchard Park
employees which the Employers have established in
the performance of the contract, or to prejudice the
assertion by employees of any rights they may have
thereunder.
(d) In any like or related manner interfering with
the rights guaranteed employees in Section 7 of the
Act, except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Respondent Clerks as the exclusive bargaining
representative of their Orchard Park employees for
the purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment,
unless and until said labor organization shall have
demonstrated its exclusive majority status pursuant
to a Board-conducted election among employees at
the Orchard Park store.
(b) Jointly and severally with the said Respondent
Clerks reimburse their Orchard Park employees for
any initiation fees, dues, or other moneys paid or
checked off pursuant to the aforesaid agreement or
any extension, renewal, modification, or supplement
thereof, or to any agreement superseding it, plus
interest as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
(c) Post at the Orchard Park store copies of the
attached notice marked "Appendix A."S Copies of
said notice, on forms provided by the Regional
Director for Region 3 after being duly signed by
Respondents or their representatives, shall be posted
by Respondents immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Post at the same places and under the same
conditions as set forth in (b) above, and as soon as
they are forwarded by the Regional Director, copies
of Respondent Clerks' notice herein, marked
"Appendix B."
(e) Notify the said Regional Director, in writing,
within 10 days from the date of this Decision and
Order, what steps Respondents have taken to
comply herewith.
B. The Respondent Clerks, its officers,
representatives, agents, and assigns, shall:
1. Cease and desist from:
(a) Acting as the exclusive bargaining agency of
any of Respondent Employers' Orchard Park
employees for the purpose of dealing with
Employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other
conditions of employment unless and until said
Union shall have demonstrated its exclusive
majority representative status pursuant to a
Board-conducted election among the employees at
Orchard Park.
(b) Giving effect to the December 29, 1964, and
March 1, 1968, collective-bargaining contracts
between the Employers and Respondent Clerks
insofar as it affects Orchard Park employees, or to
any extension, renewal or modification thereof.
(c) In any like or related manner restraining or
coercing Orchard Park employees in the exercise of
the rights guaranteed them in Section 7 of the Act,
'In the event 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 read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Jointly and severally with Respondent
Employers reimburse said Employers ' Orchard Park
employees for any initiation fees, dues, or other
moneys paid or checked off pursuant to the
agreement applied to Respondent Employers'
employees or to any extension , renewal,
modification, or supplement thereof, or to any
agreement superseding it, plus interest as set forth in
Isis Plumbing & Heating Co ., 138 NLRB 716.
(b) Post in conspicuous places in the Respondent
Clerks ' business office , meeting halls , and places
where notices to its members are customarily posted
copies of the notice attached hereto marked,
"Appendix B."" Copies of said notjce,f,,to be
furnished by the Regional Directors; fp;„Region 3,
shall, after being duly signed ,_ by an authorized
representative of Respondent . Clerks., be posted
immediately upon receipt therolt, and be maintained
by it for a period of 60 gppsecutive days thereafter.
Reasonable steps shall taken by Respondent
Clerks to insure that,paid notices are not altered,
defaced, or covered by,apy other material.
(c) Furnish to the Regional Director signed copies
of the aforesaid notice for posting by Respondent
Employers at the .Orchard Park store in places
where notices to employees are customarily posted.
Copies of said notice, to be furnished by the
Regional Director , shall after being signed by the
Respondents , as indicated be forthwith returned to
the Regional Director for disposition by him.
(d) Notify the Regional Director , in writing,
within 10 days from the date of this Decision and
Order , what steps Respondent has taken to comply
herewith.
MEMBER BROWN , dissenting:
I cannot agree with my colleagues that the
Respondents herein violated the Act by treating the
I.D.S. - Orchard Park store as an accretion to the
existing multistore unit and including the employees
of the new store within the coverage of their
collective -bargaining agreement. The entire
bargaining history , both in other geographic areas
and in the one here involved , has been on a
multistore basis , including all within a particular
division , and no persuasive reason appears why this
should not be permitted to continue. Both parties to
the contract agree to the inclusion of the new store,
the employees of that store have been accorded all
benefits under the contract , and no other labor
organization is involved or seeks to represent the
disputed employees on any other basis.
'See In . 2, supra
It seems quite clear that the I.D.S. - Orchard
Park store may constitute either a separate unit or
be part of the multistore unit . Had there been no
bargaining history, if a petition had been filed
seeking the 3-store unit, with the employer and
petitioner taking the same position as the
Respondents do herein and with no other labor
organization seeking any different unit, there is no
doubt in my mind that such unit would be found
appropriate.' If such principles for finding
appropriate units be applicable in an unfair labor
practice proceeding , I can see no reason for not
reaching the same conclusion in this case. But, I
agree with my colleagues that excessive
preoccupation with appropriate unit is unwarranted,
and in my opinion the majority view in this case
shows precisely such excessive preoccupation in
holding that because the Board Members
participating therein would find a single-store unit
4pp^{opriateu sought in a representation case, such
store; canno be accreted to a larger unit in any
circu[nstances.
r .would not, of course, find that in every instance
a new store or other operation is necessarily
appropriately treated as an accretion to an existing
unit for either unfair labor practice or representation
case purposes, and would reach my decision on the
facts of each case. However, in unfair labor practice
proceedings, the considerations that come into play
are not limited to those involved in representation
cases . A contrary approach by the Board was
rejected in N.L.R.B. v. Appleton Electric Company,
et al.,° where the court stated that the "Board
argues this case as though it were a representation
case designed to determine prospective rights and
obligations , but the issue before us is to determine
the lawfulness or unlawfulness of ... past conduct."
And the court went on to say:
It is apparent that [the] statutory scheme does
afford the incumbent union an advantage over
potential rivals but in the absence of a real
question of representation ... the Board may not
lawfully dissipate that advantage ....
To prohibit the inclusion of non-consenting
minorities in the first instance in an appropriate
larger unit before a question of representation has
been raised , is to refashion the statutory scheme.
The Board 's attempt to make illegal the
inclusion of prospective employees of
after- acquired plants and divisions would seem to
be contrary to a basic policy of the Act, to-wit: to
achieve stability of labor relations ....
Furthermore, the Board's policy overlooks the
best interests of the new minority group . It would
deprive them of representation at the most crucial
period of their employment history, it being the
time when wage rates are fixed, job classifications
established and other working conditions
'Weis Markets, Inc., 125 NLRB 148, and Haag Drug Company,
Incorporated, 169 NLRB No. 111
'296 F 2d 202 at 206 (C.A 7)
MELBET JEWELRY - ORCHARD PARK
determined by the employer.
We have here an appropriate unit. In addition,
the Board has no power to reform the contract
directly nor by indirection through the provisions
of an order of the Board.
Those findings are equally applicable to the case
now before us. The factual distinction drawn in the
majority decision herein is insignificant , and the
employee protection said to be afforded by the
majority holding is based precisely on the approach
which was disapproved by the Court in the language
first quoted above. Accordingly, here, as in that
case , the Board's order cannot stand in the face of
the employees' participation in a contract negotiated
in good faith with an undominated union.
For all the above reasons, I would find no
violation of the Act by the extension or enforcement
of the contract with respect to the new store and
would dismiss the complaint in its entirety.
APPENDIX A
NOTICE TO EMPLOYEES
Posted by order of the National Labor Relations Board
an agency of the United States Government
WE WILL NOT assist or contribute support to Local
212, Retail Clerks International Association,
AFL-CIO, or to any other labor organization of our
employees.
WE WILL NOT recognize said Union as the exclusive
bargaining representative of our Orchard Park
employees, unless and until the said labor organization
shall have demonstrated its exclusive majority status
pursuant to a Board-conducted election among said
employees
WE WILL NOT give effect to the collective-bargaining
contracts of December 29, 1964, and March 1, 1968,
with Local 212, Retail Clerks International
Association, AFL-CIO, insofar as they affect Orchard
Park employees, provided, however, that nothing in this
Decision requires us to vary or abandon those wages,
hours, or other substantive features of our relations
with our employees, established in performance of said
agreement, or to prejudice the assertion by employees
of any rights they may have thereunder.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist the above-named or any
other labor organization to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any or all such activities except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act, as amended.
WE WILL jointly and severally with Local 212, Retail
Clerks International Association, AFL-CIO, make
whole the employees of the Orchard Park store for dues
and initiation fees paid to the above-named labor
organization, plus interest at the rate of 6 percent per
,year.
Dated
This
anyone
is an
By
113
MELBET JEWELRY CO.,
INC.
I.D.S. - ORCHARD
PARK, INC.
(Employer)
(Representative ) Title)
official notice and must not be defaced by
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 compliance
with its provisions, may be directed to the Board's Office,
Fourth Floor, The 120 Building, 120 -Delaware Avenue,
Buffalo, New York 14202, Telephone 716-842-3100.
APPENDIX B
NOTICE TO MEMBERS
Posted by order of the National Labor Relations Board
an agency of the United States Government
WE WILL NOT act as the exclusive bargaining
representative of the employees of the Orchard Park
store, unless and until we have demonstrated our
exclusive majority representative status pursuant to a
Board-conducted election among the said employees
WE WILL NOT give effect to the collective-bargaining
agreements dated December 29, 1964, and March 1,
1968, between the Company and ourselves, insofar as
they apply to Orchard Park employees, or to any
extension, renewal or modification thereof affecting the
said employees.
WE WILL NOT in any like or related manner restrain
or coerce the aforementioned employees in the exercise
of their rights guaranteed them in Section 7 of the Act,
except to the extent that such rights may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as amended.
WE WILL jointly and severally with the Melbet
Jewelry Co., Inc., and I.D S. - Orchard Park Inc.,
make whole the employees of the Orchard Park store
for dues and initiation fees paid by them to us, plus
interest at the rate of 6 percent per year.
LOCAL 212, RETAIL
CLERKS INTERNATIONAL
ASSOCIATION , AFL-CIO
(Labor Organization)
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 compliance
with its provisions, may be directed to the Board's Office,
Fourth Floor, The 120 Building, 120 Delaware Avenue,
Buffalo, New York 14202, Telephone 716-842-3100.