Raley's Supermarkets

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 256 (N.L.R.B. 1963)

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not designed to require the Board to arbitrate a dispute between a
union and an employer when no such competing claims are involved.
At present, there are no such competing claims here. Accordingly,
we find, on the entire record, that the facts herein do not present a
jurisdictional dispute within the meaning of Section 8(b) (4) (D) and
10(k) of the Act. We shall therefore quash the notice of hearing.
ORDER
[The Board quashed the notice of hearing.]
Raley's Inc. d/b/a Raley's Supermarkets and Building Service
Employees International Union 22, AFL-CIO, Petitioner.
,.Case No. 20-RC-562. June 27, 1963
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before M. C. Dempster, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization 1 involved claim to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act for the following
reasons:
The Petitioner seeks a unit of 14 janitors and 3 bottle sorters em-
ployed at the Employer's 12 retail food stores located in the Sacra-
mento, California, metropolitan area. The janitors mop and sweep
the floors, clean the glass doors, and carry refuse to a disposal point
outside the stores. They work an 8-hour day but begin about 3 hours
before the clerks do. The bottle sorters sort empty bottles in sheds
outside the stores. Other employees of the Employer have been rep-
resented by the Intervenor for more than 20 years on a multiemployer
basis with retail store employees of a number of other employers
in the area. With respect to these employees, bargaining is conducted
through the Sacramento Valley Employers' Council, herein called the
Council, and the Council and the Intervenor are currently parties to
I Retail Clerks Union , Local No . 588, A .F.L.-C.I . O, hereinafter referred to as the Inter-
venor, was allowed to intervene at the hearing on the basis of a contractual interest.
143 NLRB No. 40.
RALEY'S SUPERMARKETS 257
a collective-bargaining agreement, effective from May 1, 1961, to
April 30, 1964. As described more fully below, the contract unit con-
sists of all nonsupervisory employees of the Employer, excluding meat
department employees 2
In July 1962, shortly after the Employer decided to hire janitors
and bottle sorters on a full-time basis, the Petitioner and the Em-
ployer entered into a contract covering the Employer's janitors. At
about the same time, the Intervenor requested that the Employer in-
clude janitors and bottle sorters under their current multiemployer
contract. The Employer refused, advising the Intervenor of its con-
tract with the Petitioner. On September 6, 1962, the Intervenor filed
unfair labor practice charges against the Employer 3 alleging that the
Employer had unlawfully dominated and assisted the Petitioner.
After an investigation revealing that the Petitioner did not represent
a majority of the Employer's janitors, a settlement agreement was ap-
proved by the Regional Director of the Twentieth Region on Octo-
ber 2, 1962, which nullified the contract between the Petitioner and the
Employer covering the janitors. The Employer also agreed not to
recognize the Petitioner as representative of the janitors, absent
Board certification. In October 1962, the Intervenor, pursuant to the
arbitration clause of the contract between the Council and the Inter-
venor, obtained an order from a State court requiring the Employer
to arbitrate the question whether janitors and bottle sorters were
covered by that contract. The instant petition was filed on Decem-
ber 4, 1962. On January 15, 1963, an award was handed down by an
arbitrator,4 holding that employees of the Employer performing jani-
torial services and bottle sorting were covered by the contract between
the Employer and the Intervenor.'
9 Meat department employees of members of the Council are represented on a multi-
employer basis by Amalgamated Meat Cutters and Butcher workmen of North America,
AFL-CIO, Local Union 498.
Case No. 20-CA-2410.
4 Opinion and Award of Arbitrator John B. Lauritzen , dated January 15, 1963, In the
Matter of Controversy between Retail Clerks Union, Local 588, AFI CIO, and Raley's,
Inc d / b/a Raley's Supermarkets, a copy of which was appended to the Intervenor 's brief.
On May 15, 1963, the Board issued a notice to show cause why the aforesaid opinion and
award of arbitrator should not be made a part of the record herein. Copies of said notice
were duly served on all the parties herein. On May 22, 1963, the Intervenor filed a state-
ment in support of making the opinion and award a part of the record herein . No other
responses having been received from the parties and the time for such responses having
expired , and the Board having duly considered the matter , it is hereby ordered that the
aforesaid opinion and award of arbitrator be, and it hereby is, made a part of the record
herein.
5 On January 25, 1963, the Petitioner filed charges alleging that the Employer had vio-
lated Section 8(a)(1) and ( 2) of the Act and that the Intervenor had violated Section
8(b) (1) and ( 2) of the Act. ( Cases Nos. 20-CA-2531 and 20-CB-1002.) The substance
of these charges was that the Employer had unlawfully recognized the Intervenor as
exclusive bargaining representative of its janitors and bottle sorters . No action has been
taken by the Regional Director with respect to these charges, and the Petitioner has re-
quested that the Board proceed to an immediate election in the instant case in the face of
the pending charges. In view of our determination herein that the current contract be-
tween the Employer and the Intervenor is a bar to the instant petition, and .therefore that
the petition should be dismissed , we find it unnecessary to rule on the Petitioner 's request.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Intervenor contends that its contract with the Employer covers
the employees sought herein, and that since the instant petition is not
timely filed with respect to such contract, the petition should be
dismissed. In this connection, the Intervenor would have the Board
give effect to the above-described arbitration award in which the
arbitrator found that the multiemployer contract covers the em-
ployees involved herein. The Petitioner, relying particularly on the
fact that janitors and bottle sorters are not mentioned in the contract,
contends that the contract does not cover the employees sought in the
petition. The Employer takes no position. For the reasons herein-
after set forth, we find merit in the Intervenor's contention that the
Board should honor the arbitration award and conclude that the con-
tract covers the Employer's janitors and bottle sorters, that the peti-
tion is not timely filed with respect to the contract, and that the petition
should be dismissed.6
In the recently decided International Harvester Company case,7 a
majority of the Board indicated that it would give "hospitable accept-
ance to the arbitral process" in order "to promote industrial peace and
stability by encouraging the practice and procedure of collective bar-
gaining." Relying on various statutory provisions, particularly Sec-
tion 203 (d) of the Labor Management Relations Act, 1947,8 and on
decisions of the United States Supreme Court 8 which recognize arbi-
tration as "an instrument of national labor policy for composing con-
tractual differences," the Board concluded that it would withhold its
undoubted authority to adjudicate unfair labor practice charges and
give effect to arbitration awards involving the same subject matter
"unless it clearly appears that the arbitration proceedings were tainted
by fraud, collusion, or serious procedural irregularities or that the
award was clearly repugnant to the purposes and policies of the
Act." 1° While it is true that International Harvester, as well as other
cases in which the Board honored arbitration awards," involved un-
fair labor practice proceedings'12 we believe that the same considera-
e Consequently , we deem it unnecessary to pass upon the other contentions made by the
Intervenor.
1138 NLRB 923, Members Rodgers and Fanning dissenting on other grounds.
8 Section 203(d ) provides:
Final adjustment by a method agreed upon by the parties is hereby declared to be
the desirable method for settlement of grievance disputes arising over the applica-
tion or interpretation of an existing collective -bargaining agreement. The Service is
directed to make its conciliation and mediation services available in the settlement of
such grievance disputes only as a last resort and in execptional cases.
e See decisions cited in International Harve8ter, supra, footnotes 8 and 12 . See, also,
Doyle Smith v. Evening New8 Assoctiation , 371 U.S. 195.
10 See, also , the criteria for honoring arbitration awards set forth in Spielberg Menu-
faoturting Company, 112 NLRB 1080, 1082
11 For example, Spielberg Manufacturing Company, supra.
12 See, however, Pacific Tile and Porcelain Company, 137 NLRB 1358 ( Members Rodgers
and Leedom dissenting ). There, the question was whether two employees who had been
terminated prior to the eligibility date and whose terminations were the subject of a
pending grievance proceeding were eligible to vote in a representation election . The Board
RALEY'S SUPERMARKETS 259
tions which moved the Board to honor arbitration awards in unfair
labor practice cases are equally persuasive to a similar acceptance of
the arbitral process in a representation proceeding such as the instant
one. Thus, where, as here, a question of contract interpretation is in
issue, and the parties thereto have set up in their agreement arbitra-
tion machinery for the settlement of disputes arising under the con-
tract, and an award has already been rendered which meets Board re-
quirements applicable to arbitration awards, we think that it would
further the underlying objectives of the Act to promote industrial
peace and stability to give effect thereto. It is true, of course, that
under Section 9 of the Act the Board is empowered to decide ques-
tions concerning representation.13 However, this authority to decide
questions concerning representation does not preclude the Board in a
proper case from considering an arbitration award in determining
whether such a question exists.
We are satisfied that the award upon which the Intervenor relies
meets the above-mentioned requirements applicable to arbitration
awards for the following reasons : The arbitration proceeding was
conducted pursuant to a provision in the agreement between the Inter-
venor and the Employer." The parties to the arbitration proceeding
were the Employer and the Intervenor. The issue presented to the
arbitrator was whether employees of the Employer performing jani-
torial services and bottle sorting were covered by the agreement. The
Intervenor took the position that this contract covered janitors and
bottle sorters. The Employer vigorously contended that the contract
did not cover these employees.15 In his award of January 15, 1963,
the arbitrator held that employees of the Employer performing jani-
torial services and bottle sorting were covered by the contract.
The arbitrator decided essentially the same issue as to the scope of
the contract that confronts the Board in the instant representation
case. We perceive nothing in the arbitrator's decision, relating to the
contract coverage of janitors and bottle sorters, that is repugnant to
the purposes and policies of the Act. Indeed, in circumstances sub-
stantially identical with those in the instant case, the Board has held
deferred a ruling on their challenged ballots , stating that "A grievance determination
favorable to the union 's position in cases of this type will result in holding that the dis-
puted men were employees on the critical dates while a contrary determination will result
in a finding that they were not." While Member Leedom dissented in Pacific Tile and
Porcelain, he regards the eases as clearly distinguishable There, the specific issue was
whether the Board should await the outcome of a grievance-arbitration procedure before
resolving certain postelection challenges . Here, the issue concerns the effect to be given
to an arbitration award already made.
13 Cf. Carey v. Westinghouse, 50 LRRM 2740 , cert. granted, 52 LRRM 2748,
is Section 22 of the contract , "Grievances and Board of Adjustment," provides for a
board which "shall have the power to adjust any differences . . . regarding the meaning
or interpretation of this agreement ." This section also provides for the selection of a dis-
interested party if any differences cannot be resolved by the board
15 This position is identical to that taken by the Petitioner in the instant proceeding.
717-672-64-vol 143-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the employees involved were an accretion to the contract unit and
were therefore covered by the contract.16 In addition, the arbitration
proceeding was fair and regular and free from any procedural in-
infirmity which might render the award unacceptable. 17
In view of the foregoing, we find it will effectuate the policies and
purposes of the Act to honor the arbitration award. We, accordingly,
find that the contract between the Employer and the Intervenor covers
the employees sought herein, and that, since the petition is untimely
with respect to such contract, the contract is a bar to the petition.
[The Board dismissed the petition.]
MEMBERS RoDGERS and BROWN took no part in the consideration of
the above Decision and Order.
16 See, for example , Simmons Company, 126 NLRB 656 , where the Board held that
employees in the employer 's new mattress department were an accretion to a contract
unit covering all production and maintenance employees working in the employer 's "Liv-
ing Room Division" because both groups of employees were engaged in the "same func-
tional activity" and the two operations were "closely integrated ." Here, as noted , clerks
who are covered by the contract perform and have performed work identical to that
performed by janitors and bottle sorters, and , in addition , the record establishes that
janitors and bottle sorters are under the same supervision as clerks. While the terms of
the multiemployer contract had not been applied to janitors and bottle sorters , as noted,
as soon as the Intervenor discovered that the Employer was hiring these employees on a
full-time basis, it sought to have these employees covered by the contract . The principle
of North American Aviation, Inc., 127 NLRB 356, and similar cases, would therefore be
inapposite.
17 While the Petitioner was not a party to the arbitration , as already indicated, its
position was vigorously defended by the Employer , which at all times maintained, in
agreement with the Petitioner , that the contract did not cover the employees sought
herein. See International Harvester , supra.
Although Member Fanning dissented in International Harvester because of his agree-
ment with the Trial Examiner, who had relied , inter alia , on the absence of the alleged
discriminates from the arbitration proceedings even though his position had been vigor-
ously espoused by the company , he is of the view that the circumstances of this case are
so different from International Harvester that the absence of the Petitioner from the
arbitration proceeding here does not bar its acceptance by the Board.
Allied Chemical Corporation , National Aniline Division ( Colum-
bia Plant ) and District 50, United Mine Workers of America.
Case No. 11-CA-2043. June 27, 1963
DECISION AND ORDER
On March 11, 1963, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in unfair labor practices as alleged in
the complaint, and recommending that the complaint be dismissed, as
set forth in the attached Intermediate Report. Thereafter, the Charg-
ing Party filed exceptions to the Intermediate Report and a support-
ing brief.
143 NLRB No. 37.