Retail Clerk Union, Local 870

National Labor Relations Board - Board Decisions

Jul 27, 1971

192 N.L.R.B. 240 (N.L.R.B. 1971)

°240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Union , Local 870, Retail Clerks Interna-
tional Association;, AFL-CIO and "White' Front
Stores;' Inc., White Front Newark , - Inc.," White
Front -Pleasant Hill; Inc., White Front San `Jose,
,Inc.
Retail Clerks Union, Local 870, Retail Clerks . Interna-
tional Association, AFL-CIO andWhite Front--San
Francisco, Inc.,, White Front South San Francisco,
Inc., White _ Front Richmond,, Inc. Cases
20-CB-2144 and 20' CB-2250
July 27, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 1, 1970, Trial Examiner James R.
Webster issued, his Decision in, the above-entitled
proceeding, ,finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions and the
Charging Parties filed cross-exceptions to the Trial
Examiner's Decision together with supporting briefs.
Answering briefs were also filed by the General
Counsel and Respondent.
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 Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in these cases,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, but only to
the extent they are consistent with the following.
We agree with the Trial Examiner's finding that
Respondent engaged in picketing at various White
Front Stores with an object of forcing White Front
Newark, Inc.' to adhere to a collective-bargaining
agreement containing a union-security clause, and
that certain of this picketing occurred at times when
Respondent did not represent a majority of the
employees at White Front Newark. However, contra-
ry to the Trial Examiner, we do not believe that the
I
Hereafter referred to as White Front Newark.
2 Hereafter referred to as White Front Oakland.
evidence presented here warrants- a finding that
Respondent's, conduct-Wag violative-of Section 8(b)(2)
of the Act.
As detailed- in the Trial, Examiner's Decision, the
evidence shows that White Front. operates approxi-
mately, eight :retail stores in what is known as the San
Francisco Metropolitan Trading Area, and with the
exception of White Front, Newark,- all these stores
havecollective-bargaining agreements, with , various
locals .of the Retail Clerks International Association,
AFL-CIO. Of particular significance in this proceed-
ing is the collective-bargaining agreement between
Respondent and White Front Oakland, Inc.2 This
agreement, which is effective during the period from
August 1, 1968, to July 31, .1971, contains a union-
security provision and an accretion clause. The latter
clause,provides, in substance, that any stores opened
or acquired by the Employer during, the life of the
agreement and which are located within the territorial
jurisdiction of the. Respondent, shall be deemed an
accretion to the bargaining - unit at White Front
Oakland and covered by that agreement. On March 6,
1969,3 White Front opened a new, store:. in Newark,
California, approximately 10 miles from White-Front
Oakland. Both stores are located in Alameda, County,
California, and are within Respondent's territorial
jurisdiction.
Prior to the opening of the new store, Respondent's
attorney, Robert Cowell, contacted Richard Chali-
foux, the personnel director for White Front's parent
corporation, Interstate Department Stores, and re-
quested that the accretion clause in the collective-
bargaining agreement with White Front Oakland be
applied to cover the new store. By telegram, dated
March 6, Chalifoux replied that White Front could
not lawfully accord recognition to Respondent
without adequate proof of majority status among
employees constituting an appropriate bargaining
unit, and that Respondent could expect correspond-
ence from White Front's attorneys in the near future
which would more fully explain White Front's
position on this matter. This was followed by a letter
of March 7 from White Front Attorney Frederic
Richman to Respondent Attorney Cowell in which
Richman represented that White Front would submit
to an immediate card check if and when Respondent
was able to secure signed authorization cards from a
majority of the employees in the appropriate bargain-
ing unit. On March 10, Attorney Cowell called
Chalifoux concerning the matter of a card check and
was informed by Chalifoux that Attorney Richman
was not up on company policy and was not author-
ized to make such an offer. Following this conversa-
tion, Richman wrote to Cowell to explain that his
3 Unless otherwise indicated , all dates refer to 1969.
192 NLRB No. 33
RETAIL CLERKS UNION, LOCAL 870 241
prior statement as to company policy had been
erroneous, and that he was now advised that under
present procedures the Company would consider such
things as card checks on a case-to-case basis . By letter
dated April 16, Cowell again urged Chalifoux to
effectuate immediately all provisions of the collective-
bargaining agreement and fulfill the Employer's
obligation under the accretion clause. Receiving no
satisfactory response, Cowell followed with a tele-
gram to Chalifoux on May 5, demanding an immedi-
ate meeting of the adjustment board under section
19(c) of its agreement with White Front Oakland for
the purpose, of resolving grievances raised in connec-
tion with White Front's refusal to treat White Front
Newark as an accretion to the existing bargaining
unit. Chalifoux replied by telegram, dated May 8,
taking the position that the collective-bargaining
agreement between Respondent - and White Front
Oakland did, not extend to the new store.4
On June 23, Respondent commenced picketing
White Front Newark with signs bearing the legend,
"Please do not patronize White Front, unfair to Retail
Clerks Union - Local 870.", This picketing was still
continuing at the time of the Board hearing. On
various other occasions, Respondent also engaged in
picketing at the administrative office of White Front
and at five other White Front stores in the San
Francisco Bay area.5 The General Counsel takes the
position that all of the aforementioned picketing was
directed towards forcing White Front Newark to
adhere to the terms and conditions of Respondent's
contract with White Front Oakland, including that
agreement's 'union-security provision. However, the
General Counsel concedes that such an objective is
permissible under ' Section 8(b)(2) of the Act, if the
Respondent enjoyed majority status among the
employees of White Front Newark at the time it
engaged in its picketing activities. On the question of
Respondent's representative status,, evidence was
presented during the hearing which establishes that
Respondent achieved a card majority among the
employees of White Front Newark no later than 10
days from the date of the store's opening on March 6,
and that Respondent's card majority continued until
August 24, which is approximately 2 months after the
Respondent commenced its picketing activities. In
view of this evidence, the General Counsel was
permitted to amend the complaint to allege a violation
of Section 8(b)(2) only with respect to conduct which
occurred after Respondent's loss of majority status.
4 On May 15, Respondent filed a petition to compel arbitration in a
Superior Court for the State of California . However, insofar as the record
indicates, no further efforts were made to resolve the matter through
arbitration.
8 The picket signs bore the same legend as those used in connection
with the picketing of White Front Newark.
6 Local Joint Executive Boar4 Hotel and Restaurant Employees (Crown
In prior cases,6 we have found that picketing for a
union-security-agreement by a union which does not
represent a majority of the unit employees or is not
otherwise entitled to representative status constitutes
a violation of Section 8(b)(2) of the Act. Here,
however, we are faced with a rather unique, situation.
The uncontroverted evidence establishes that Re-
spondent acquired a cardmajorityamongtheemploy-
ees of White Front Newark by March 16 and
maintained this majority for a period of almost 5
months. Furthermore, Respondent represented a
majority of these employees at the time it commenced
picketing and for approximately 2 months thereafter.
Thus, it must be said that for a substantial period of
time, Respondent's picketing activities were not
proscribed by Section 8(b)(2) of the Act. In such a
circumstance, we believe that Respondent had the
right to presume that the lawfulness of its conduct
continued barring evidence to the contrary. Although
at the Board hearing it was established that Respon-
dent lost its majority after August 24, there is no
evidence that Respondent was aware of that circum-
stance prior to the hearing. Nor, in view of the
fluctuations in the size of unit at White Front Newark,
was there any means available by which Respondent
could accurately determine its majority status on a
day-to-day basis. This is not to say that Respondent's
representative, could not have been challenged by
means of a card check or a Board election or by some
other means, but ,White Front elected, not to pursue
these avenues available to it.7 Of course, certain risks
are entailed when a union embarks upon a program of
picketing activity and conduct which is lawful under,
one set of circumstances but which may be decidedly
unlawful under another. But when, as here, we are
involved with the same continuing course of conduct,,
the party charged with a violation of the Act should
have some notice as to the circumstance which
changed a lawful activity into one proscribed by the
Act. No such opportunity presented itself here, and
even the most diligent effort by. Respondent to
ascertain its continuing majority would have proved
fruitless in the circumstances of this case. According-
ly, for the foregoing reasons, we would dismiss the
complaint in its entirety.
There is also another basis upon which. we would
rely in dismissing the complaint. Respondent does not
base its claim of representative status among the
employees of White Front Newark solely upon its
card majority. In addition, Respondent claims-that
Cafeteria), 130 NLRB 1551, enfd. 301 F.2d 149 (C.A. 9); Local Joint
Executive Board etc. (Little Luigi's Italian Foods), 153 NLRB 392.
7 White Front Newark did file an election petition on June 6, but while
the matter was still pending before the Board it withdrew its petition.
White Front Newark also filed Section 8(bx7)(C) and 8(b)(1)(A) charges
on July 31 in connection with Respondent 's picketing activities, but on
August 7 it withdrew these charges.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White Front Newark is an- accretion' to the existing
unit of employees at White Front Oakland and that
therefore, Respondent should be deemed to be the
contractual representative of the White Front Newark
employees. In passing upon Respondent's accretion
claim, `the- Trial Examiner found that White Front
Newark was a separate appropriate unit and that-it
could not properly be found to be an accretion to the
White Front Oakland units, We do- not agree. While,
under different circumstances, the_oard might have,
concluded that the employees of White Front Newark
constituted a separate appropriate unit,. such a finding
would not foreclose the Board from determining;
whether under the facts presented, White Front
Newark can'be properly said to be anaccretion to the
White Front Oakland unit. Certainly, a finding of
accretion is supported,by the fact that-White Front
Newark-is the only White Frontstore'in San Francisco
Bay area in which employees are not represented by
Respondent or a sister local of the Retail Clerks
International Association,, AFL-CIO. Also, White
Front Oakland and-White Front Newark are virtually
identical retail operations; separated from one anoth-
er by a_.distance of only approximately 19 miles; and
they are the only White Front stores located within
the geographic confines of Alameda County,
California.9' More important, however, is the contrac-
tual agreementbetween Respondent and White Front
Oakland whereby the parties agreed thavany future
White Front Stores-located within the Respondent's
territorial jurisdiction would be deemed an accretion
to existing bargaining unit. Although we have in past
cases refused to give controlling weight to such a
clause, our only reason for not giving controlling
effect to the contractual commitment of the parties
has been our concern over protecting the rights of
future employees to have a say in the selection of their
bargaining representative. No such problem exists-
here, however, because the employees at White Front
Newark have already clearly, indicated that they wish
to' be represented by the Respondent.ro Therefore, as
the rights of the third parties, i.e., the employees,of
White Front Newark, have not been jeopardized, we
consider itproper to give full-effect to the contractual
agreement - of the parties, and on this basis alone
conclude that White Front Newark is an accretion to
the existing unit covered by the collective-bargaining
agreement between Respondent and White Front
Oakland:11
Accordingly for the foregoing reasons, we find that
Respondent's picketing did not violate Section 8(b)(2)
of the Act and that the complaint should be dismissed
in its entirety.
ORDER'
Pursuant to Section 10(c) of the National Labor
Relations Act., as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, andit hereby is, dismissed in its entirety.
CHAIRMAN MILLER, concurring:
I concur in the result, solely on the basis of the first
rationale set forth in the main opinion. I do not pass
upon the accretion issue.
8 The Trial Examiner also considered the appropriateness of a
multistore unit comprised , of the White Front Oakland and White Front
Newark stores and concluded that such a unit would not be appropriate 'for
purposes of bargaining ; In our judgment, a determination ' of the
appropriateness of a multistore unit is irrelevant to the,issues presented in
this proceeding. Accordingly, we find it unnecessary to consider this
question.
9 The Trial Examiner's finding that White'Front Richmond, Inc., is also
located to Alameda County, California , is clearly erroneous.
10 The only reason that this employee preference may not have been
expressed to White Front at an earlier date was that White Front reneged'
on its previous commitment to submit to an immediate card check, when
and if the Respondent secured signed authorization cards froma majority
of the unit employees.
51 Our decision here in no way conflicts with our earlier determination
in Melbet Jewelry, Co., 180 NLRB No. 24. In our opinion, the two situations
are dissimilar because here, unlike Melbet, 'the employees at the new
location already indicated their preference for representation by the
Respondent.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case, with all
parties represented, was heard in San Francisco, California,
on June 9, 29, and 30 and July 1,1970, ,oncomplaintof the
General Counsel and answer, of RetailrClerksaUnion, Local,
870, Retail Clerks International Association, AFL-CIO,
herein referred to as Respondent. The complaint was issued
on April. 6, 1970, on charges filed ,December 12,_ 1969;
March 31, 1970; and May 22, 1970. The complaint alleges
that Respondent picketed several White Front stores for an
object of causing White Front Newark, Inc., to be bound
by a collective-bargaining agreement containing a union-
security clause and that such picketing occurred when
Respondent did not represent a majority of +the employees
at this store, and that Respondent has thereby-, violated
Section 8(b)(2) of the National Labor Relations Act, herein
called the Act.
Briefs have been filed by the General Counsel, the
Charging Party, and Respondent, and . these have 'been
carefully considered. Motion to correct the transcript Was
filed by counsel for the. General Counsel' on August' 17,
1970; the motion is granted. '
Upon the entire record and my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS '
Each of the Charging Parties, White Front Stores," ,Inc.,
White Front Newark, Inc., White Front Pleasant Hill, Inc.,
White Front San Jose, Inc., White Front San Francisco,
RETAIL CLERKS UNION, LOCAL 870 243
Inc., White Front South San Francisco, Inc., and White
Front Richmond , Inc., is a separate corporation engaged in
the operation of a retail discount department store, and
each is a wholly owned subsidiary of Interstate Department
Stores, Inc. Each store does an annual gross business of
$500,000 and annually receives shipments of merchandise
from other States into California valued in excess of
$50,000 . White Front Stores, Inc.,. is a complex of stores
operating in^ the Los Angeles , California , area . Each of the
other Charging Parties is located and engaged in business in
the municipality in California that appears in its corporate
name . In all, Interstate Department Stores - owns and
operates approximately 26 White Front stores in California.
I find that each of the seven Charging Parties are
employers ` engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act. -
II. THE LABOR ORGANIZATION INVOLVED
Retail, Clerks Union, Local 870, Retail Clerks Interna-
tional Association, AFL-CIO, Respondent herein, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the employees at White Front Newark, Inc.,
constitute an accretion to the -bargaining unit at White
Front Oakland, Inc., or a multistore bargaining unit with
the employees at that store or a separate bargaining unit.
2. Whether the continuation of picketing by Respon-
dent -`for a union-security agreement at White Front
Newark after ' it -ceased to represent a majority of the
employees ' at Newark constitutes a violation of Section
8(b)(2) of the Act.
3. Whether -Respondent may adduce evidence of an
unfair labor practice by White Front barred by Section
10(b) of the Act to defend and to explain its loss of majority
at Newark.
B. Statements of Facts
Respondent and White Front Oakland, Inc., located in
Oakland, Alameda County , California , entered into a
collective-bargaining agreement on August 1, 1968, with
expiration date of July, 31, 1971 . At the same time, similar
but separate contracts were negotiated between White
Front and other locals of the Retail Clerks Union covering
White Front stores in their respective jurisdictions. The
contract at Oakland provides that the Employer recognizes
the Union as the sole collective-bargaining agent for a unit
including all selling , stock clerks and other nonselling
employees in the Employer's retail establishment or
establishments located in Alameda County, California. The
contract also contains a union-security clause as follows:
UNION MEMBERSHIP : Continuous membership in,
-good standing in the Union shall be a condition of
employment under this agreement . Upon written seven
(7) days prior notice by the Union, the Employer agrees
to discontinue the employment of any employee who, at
any time after thirty (30) days from the date of
execution of this agreement or thirty (30) days from the
date of hiring, whichever is later , fails to become or
remain a member of the Union, in good standing.
Appendix E to the contract , entitled "Additional Stores,"
provides as follows:
In the event that the Employer should , between August
1, 1968 and the termination date of this agreement,
acquire , establish or operate any additional store or
stores within the geographic jurisdiction of the Union,
this agreement shall apply to all selling, stock clerks and
other non-selling employees , as defined in Section 1 of
this agreement, employed in such store or stores, and
such employees shall be deemed an accretion 'to the
bargaining unit covered by this agreement; except that
this paragraph shall not apply to the employees of any
store who are covered by a collective-bargaining
agreement with another union.
On March 6, 1969, White Front Newark, Inc., located in
Alameda County approximately 19 miles from White Front
Oakland, opened for business . A small managerial staff
worked in the store from January 27 to March 6, 1969, in
preparation for the opening . On February 28, Respondent's
attorney, Robert P. Cowell, wrote Richard-G. Chalifoux,
personnel director of Interstate Department Stores in New
York City, calling his attention to Appendix E of the
collective-bargaining agreement , and calling his attention
to White Front's adherence to a similar clause upon, the
opening of a second store in Sacramento , California, and
asking that White Front adhere to Appendix E of the
agreement in Alameda County. ' -
By telegram dated March 6, 1969 , Chalifoux replied that
White Front stores could not lawfully accord recognition to
Local-870, Retail Clerks Union without adequate proof of
majority status among employees constituting an appropri-
ate bargaining unit, and that ` Respondent could expect
correspondence from White Front attorneys within the
near future more fully stating White Front's position. ,
On March 7, 1969, White Front Attorney Fredric N.
Richman wrote Cowell as follows:
Our client Interstate Department Stores , Inc. has
forwarded to us your letter of February 28, 1969, for
reply.
We are of the opinion that the Employer is properly
declining recognition of Local 870 at the Newark store.
I call to your attention the recent decision in National
Labor Relations Board v. Food Employers Council; 399 F.
2nd 501.
The Company's position is and always has been that as
soon as Local 870 is able to secure signed authorization
cards from a majority of the employees in the
appropriate bargaining unit, the Company will be more
than happy to submit to an immediate card check.
About March 10 or 11, Cowell called Chalifoux on the
matter of a card check but was told that Richman was not
up on company policy and was not authorized to make
such an offer.
As of Sunday , March 9, 1969, after the store had been
open 3 days, Respondent had only 21 authorization cards
but by the end of the following week it had a majority of
108 cards out of 204 employees.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated March 12, 1969, Attorney Richman wrote
Cowell as follows:
In the third paragraph of my letter of March 7, 1969, I
indicated to you that Interstate Department Stores, Inc.
would be more than happy to submit to a card check if
and when your client was able to secure signed
authorization cards. I, regret to advise you at this time
that my representation of the Company's intention in
that regard was erroneous and contrary to the oral
representations made by Mr. Chalifoux to Mr. Jones.
Until the Newark situation arose, I 'believed the
Company's policy to'be what I had stated, but I am now
advised that henceforth the `former policy shall no
longer be in effect and we shall consider such things as
card checks on a case to case basis. I can assure you the
error on my part was a ,result of a lack of communica-
tion owing in large measure to the great number of
matters in which our client is involved.
By letter dated April 16, 1969, Cowell again °wrote
Chalifoux urging the Company-to effectuate immediately
all' provisions of the collective-bargaining agreement and
fulfill its obligation under the accretion clause.
By telegram dated May 5, 1969, to Chalifoux,' Cowell
demanded, an immediate meeting of the adjustment board
under section 19(c) of the Oakland agreement to resolve
grievances raised in his letter of February 28 regarding the
accretion of the Newark store. Chalifoux replied by
telegram dated 'May 8 that the current collective-bargaining
agreement between Respondent and White Front Oakland,
Inc., does not extend to the White Front Newark store.
On May 15, 1969, 'Respondent distributed leaflets to
employees at White Front Newark, Inc., wherein it was
stated, among other things, as follows:
On August 1, 1968 we arrived at a new contract with
White Front, a part of which was that all new White '
Front operations in Alameda county would be covered
by the master agreement . They have seen fit to ignore
this clause, even after repeated meetings. -
The company insists on an election in your store and, of -
course, the union's position is that the store should
automatically come under the existing agreement.
On June 6, 1969, White Front Newark filed a representa-
tion petition (Case 20-RM-1182) seeking an election at this
store in a unit of retail sales employees and office clericals.
On June 20, 1969, Respondent distributed literature to
Newark Store' employees which, among other things,
contained the following:
This Union has had a collective bargaining agreement
with White Front for a number of years, the latest being
effective August 1, 1968. At that time a newly
negotiated clause was arrived at which provided that
any new store opened by the Company in, Alameda
County would automatically be covered by the
agreement. -
We have made every effort to convince the, Company
that they should- honor the collective' bargaining
agreement.
Commencing on June 23, 1970, Respondent picketed the
Newark store with signs as follows:
Please do not patronize White Front, unfair to Retail
Clerks Union-Local 870.
The picketing has continued to date of hearing.
Respondent has, picketed other stores of White Front
commencing on dates shown with the same picket signs, as
follows:
White Front Pleasant Hill, Inc.-December 9,1969 -
White Front San Jose, Inc.-December 9, 1969 -
White Front Stores, Inc.-December 10, 1969, to on or
about March' 31, 1970; and for at least during about the
2 months preceding the hearing herein which, com-
menced on June 29, 1970.
White Front San Francisco, Inc.-February 2; 1970, to
February 24,1970 - -
White Front South San Francisco, Inc.-February 5 to
February 22, 1970
White Front Richmond, Inc.-April 23,1970 - '
C. The Operation of White Front Newark, Inc.
The principal place of business of Interstate Department
Stores, Inc., is in New York City, New York., The director
of store operations for all White Front stores has his office
in Los Angeles, California. As is typical of chain store
operations, there is considerable centralization and central
control maintained by Interstate. There are area warehous-
es serving a number of White Front stores. Advertising is
centralized. Merchandise is purchased from vendors chosen
by Interstate. The prices of merchandise in each of the
stores is centrally determined. The employees in the various
stores receive their checks from White Front's Los Angeles,
office. General corporate policies including wage scales,,
personal matters, and labor relations,are formulated by
Interstate. Under the director of store operations for White
Front stores,,there are group managers overseeing stores in,
a particular area, and the group manager is charged with
the function of seeing that the stores in his group show a
profit. The local store managers submit .,their sales
inventory reports to the group manager for approval. The
group manager in conjunction with the director, of, store
operations has the authority to discharge or transfer any
individual store manager. Apparently, to the extent that it
can be done, there exists a central and uniform policy
governing the operations of each of the subsidiary
corporations.
For the opening of the Newark store, all employees were
hired by a White Front personnel representative from Los
Angeles. Thereafter, it has been the functionand responsi-
bility of the store management to hire and fire employees;
however, in doing so they follow guidelines set out by
Interstate. Local management lays off and recalls employ-
ees and assigns and directs their work on a 'day-to-day
basis. Vacations and work schedules are prepared by store
management and leaves of absence up to a period, of 30
days can be authorized by local management. The local
store keeps its own payroll records and sales inventory
reports and prepares purchase orders for the majority of the
store's merchandise. These purchase orders are placed
directly with vendors, although Interstate chooses the
vendors and predetermines the price to be paid for the
merchandise. Other merchandise, approximately 30 percent
of the merchandise acquired; is transferred from 'various
RETAIL CLERKS UNION, LOCAL 870 245
warehouses of the White Front division of Interstate and of centralization and uniformity, but this applies to all of the
Interstate . White Front stores and is a usual practice in the operation
D. CoAclusions
Respondent is predicating its actions herein on the theory
and contention that the Newark store is an accretion to the
Oakland store, or that together the two stores constitute an
appropriate multistore 'bargaining unit. Both stores are
located in the same county and are encompassed within the
geographical jurisdiction of the Union. Respondent's
picketing of White Front has been- for the purpose of
'forcing White Front to adhere to the accretion clause in its
contract covering White Front Oakland and to apply this
contract to the Newark store.
Irrespective of its contract with Respondent, White Front
has taken the position that the Newark store is not an
accretion to the Oakland store and also that the Newark
and'Oakland stores do not constitute a multistore unit but
are separate bargaining units.
An "accretion" is a bit more difficult to establish than a
"multi-store unit," as it implies a growth or expansion of an
existing unit. It has some advantage to a union, however, in
that with it there does not exist the same problem of proof
of "majority status" as exists with a multistore unit, since
there is- a presumption of continuation of majority status in
a bargaining unit once established. As to a multistore unit,
Respondent must show that it has a majority status and
that the multistore unit is, appropriate. In some situations,
more than one unit can be appropriate.
Thus, the first issue is whether the Newark store is an
accretion to the Oakland store, and if not, whether the two
stores` constitute an appropriate multistore bargaining unit.
It is noted that White Front agreed to recognize
Respondent as the bargaining representative of its
"establishment or establishments located in Alameda
County, California" and to include employees of any
additional store or stores in the county as an accretion to
the Oakland unit. Although the Board and courts recognize
bargaining history-that is, past practice-as one determin-
ing factor on the issue of appropriate unit, any contractual
attempts ,by parties to describe the constitution of any
future appropriate bargaining unit rests or falls on the
accuracy of their determinations. Their designation of a
new store as an, "accretion" or as a "multi-store unit" does
not make it so; whether it is or not is strictly a question of
law.' Thus, Respondent's agreement with White Front
Oakland on the matter is not controlling.
Considering all factors, I find that the Newark store does
not constitute an accretion to the Oakland store and also
that the two stores do not constitute an appropriate
multistore bargaining unit: Normal tests for multiplant
units are administrative coherence, geographical cohesive-
ness, bargaining history, and mutual consent ; other factors
considered are common terms and conditions' of employ-
ment, substantial uniformity of wage systems and fringe
benefits, substantial integration of operations, interchange
of employees, and the like. 2
In the instant case, there is abundant evidence of
of retail chains. In this regard, the Newark store bears the
same relationship to all of the, White Front stores as, it does
to the Oakland store. It has in common with other stores in
Northern California a group manager and a central point
or warehouse for distribution of some of its merchandise
not delivered directly by vendors. The only thing that it has
in common with the Oakland store and not with the other
stores is that it is located in the same county, along with
another newly opened store in Richmond, California. As
stated in the Haag Drug Company ,case, 169 NLRB 877, 878,
"More significant [than centralized administrative control]
is whether or not the employees perform their day-to-day
work under the immediate supervision of a local store
manager who is involved in rating employee performance,
or in performing a significant portion of the hiring and
firing of the employees, and is personally involved with the
daily matters which make- up their grievances and routine
problems. "
The Newark store was staffed with new employees; there
has- been almost no interchange of unit employees with
Oakland or any other White Front store; the store manager
is in charge of the day-to-day operations of his store and is
responsible for the hiring, training, and rating of employ-
ees. The Newark store is run as a separate operation. Under
similar circumstances, the Board has found that a single-
store unit and not a multistore unit is appropriate.3
Accordingly, I find that the employees at White Front
Newark, Inc., constitute a separate appropriate bargaining
unit, that they are not an accretion to the Oakland store
unit, and that a multistore unit of these two stores is an
inappropriate bargaining unit. The fact that White Front
has previously extended existing union-security contracts to
new stores in Sacramento, California, and in Santa Clara
County; California, is not sufficient to establish a
bargaining history governing the instant case.
Respondent's picketing has been for the object of forcing
compliance with 'Appendix E of its,Oakland contract;,it_ has
not been for recognition as bargaining agent for a separate
bargaining unit at the Newark store. Thus, Respondent's
picketing has been for recognition and bargaining relations
in an inappropriate bargaining unit.
On June 6, 1969, White Front Newark filed a representa-
tion petition seeking an election in a unit of employees at
that store (Case 20-RM-1182). On September 11, 1969, the
Regional Director for Region 20 issued a Decision and
Direction of Election. Respondent filed- a request for
review. On September 18, 1969, the Regional Director
approved the withdrawal of the petition by White Front
Newark. The issue before me-is whether or not Respondent
had picketed for a union-security contract at the Newark
store at a time when 'it did not represent a majority of
employees at this store as a separate bargaining-unit. If the
Newark 'store were an accretion, then Respondent's
majority status, at Oakland would have been presumed to
continue until the contrary is shown. If the Newark store
were one in a two-store unit, then Respondent's majority
t .Sheraton-Kauai Corporation, 177 NLRB 'No. 13 enfd. 429 F.2d 1352 3 Melbet Jewelry Company, Inc, 180 NLRB No. 24; Sheraton-Kauai
(C.A. 9). Corporation, 177 NLRB No. 13, supra. Super Yalu Stores, Inc., 177 NLRB
2 PPG Industries, 180 NLRB No. 58. No. 63; Warehouse Markets, Inc., 175 NLRB No. 70.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status would be determined by a count at the two stores
together. Asa separate bargaining unit ,' Respondent must
establish that it represents a majority of the Newark
employees in order to picket for a union-security agreement
requiring these employees to become members of the
Union as a condition of employment . Section 8(a)(3)
authorizes 'an employer and a union, with some exceptions,
to make an agreement requiring union membership as a
condition of employment if such union is the representative
of a majority of the employees in the unit . Picketing for
such an agreement where the union does not represent a
majority of the employees constitutes a violation of Section
8(b)(2) of the Act .4
By the second week of operation (week ending March 16,
1969), Respondent had authorization cards from a majority
of the employees at the Newark store-108 cards out of 204
employees . Respondent had authorization cards from a
majority of the store employees during the period from
March 16 through August 24,1969 .5 When picketing began
at Newark on June 23, 1969 , Respondent had 75 cards out
of 123 employees.
Respondent makes two contentions regarding the change
in its majority status-that it had a majority when it
demanded the extension of its Oakland contract to cover
the Newark employees , and also when picketing began;
and that White Front caused - the loss of majority by
engaging in unfair labor practices.
Respondent contends that White Front Newark could
have and should have adhered to the Oakland contract in
March and June, when it represented a majority of the
employees , in the Newark unit ; that as it had been selected
by a majority of 'these employees as their bargaining
representative, it should have a reasonable time to function
in, this capacity. But the point is that it at no time sought
recognition as bargaining representative for these employ-
ees as a separate bargaining unit . Furthermore, a union's
right to a reasonable time to function as bargaining
representative does not arise until it is vested with that
status either by certification or recognition or by the
commission of unfair labor practices by the employer
calculated to destroy majority status and to interfere with a
free election.
There is no certification or recognition of Respondent as
to the Newark store . Respondent contends that it had an
ample majority status at the Newark store but that it was
dissipated by unfair labor practices of White Front; and
that the Company had stated at one time that when
Respondent was able to secure signed authorization cards
from a majority of employees in the appropriate bargaining
unit, it ,would submit to an immediate card check , but a few
days later it withdrew this offer . Also, Respondent
contends,, and made offer of proof in this connection, that
44 employees who were union members and employed at
the Oakland store were refused transfers to the Newark
store during the period of February and March 1969,
4 Crown Cafeteria 130 NLRB 1551,'enfd. 301 F.2d 149 (C.A. 9); Little
Iraigi 's Italian Foods, 153 NLRB 392; Hart Motor Express, Inc., 164 NLRB
382.
S For 3 weeks after August 24, Respondent would have continued to
have a majority status if the undated cards of Blakeman , Freitas, and
Smocynski were counted , but there is no indication as to when these cards
were signed , and they have not been counted.
immediately before the opening of the Newark store ; thafif
this had been allowed , Respondent's majority would have
continued beyond August 1969 . Respondent further
offered to prove that some of these employees were told by
supervisors -at White Front, Oakland, at the time of their
.requests for transfers that there would be. no transfers
because White, Front- did not want a.,union,at the Newark
store. Respondent contends that it would not have become
a minority union picketing for a union-security contract if it
had not been for unfair labor practices by White-Front. But
the alleged conduct of White Front complained of occurred
in. February and March ,1969. This is well over 6 ,months
prior to, the initial charge herein , filed on December 12,
1969.
In the absence of a timely and meritorious charge,
Respondent is barred by Section 1,0(b) of the, Act from
establishing that White Front committed an unfair labor
practice prior to the 6-month limitation period, even though
offered only to defend an unfair labor practice Respondent
is charged with committing.6 Furthermore, I find that there
is an insufficient relationship between the alleged conduct
of White Front in February and March 1969 and a loss of
majority, status , by the Respondent in the latter part of
August 1969, particularly in view', of the fact that
Respondent acquired a substantial majority status in the
latter part- of March 1969, after the alleged , conduct; and
maintained it for approximately 5 months.
I find that by picketing White Front Newark, Inc., on
and after August 31, 1969„and by picketing at White ,Front
Pleasant Hill, Inc., White Front SanJose, Inc., White.Front
Stores, Inc., White Front San Francisco, Inc., White ,Front
South San Francisco, Inc., and White Front, Richmond,
Inc., on dates as found herein , all for the purpose of, forcing
White Front Newark, Inc., to adhere to the-terms of a
union=security contract, -Respondent has thereby ,attempted
to cause White Front Newark to discriminate- against its
employees in violation of Section 8(a)(3) of the Act.
W. TILE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set'foith in 'section III,
above, 'occurring in connection with the operations of the
Employers 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 thereof.
Upon the basis of the ' foregoing findings of fact and the
entire record in this case , I'make the following:
CONCLUSIONS , OF LAW
1. White Front Stores, Inc., White Front Newark, Inc.,
White Front, Pleasant Hill, Inc., White, Front San Jose, Inc.,
White Front San,,Francisco,, Inc., White. Front South San
6 Local No. ' 8280, United Mine Workers of America, 166 NLRB 271,
enfd. 422 F 2d 115. On June 20, 1969, and August 4, 1969,' Respondent
filed charges agamst White Front alleging, among other things , refusals to
transfer union members from Oakland to Newark. (Case, 20-CA-5640)
These charges were dismissed on August 29, 1969 ; this dismissal was
appealed; and on March 11, 1970, the appeal was dented by the General
Counsel.
RETAIL CLERKS UNION, LOCAL 870 247
Francisco, Inc., and White Front Richmond, Inc., are
employers engaged in commerce and in an industry
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Clerks 'Union, Local 870, Retail Clerks
International Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By picketing White Front Newark, Inc., on and after
August 31, 1969, and bypicketing'White Front Stores, Inc.,
White Front Pleasant Hill, Inc., White Front San Jose, Inc.,
White Front San Francisco, Inc., White Front South San
Francisco, Inc., and White Front Richmond, Inc., as found
herein, all for the purpose of forcing White Front Newark,
Inc., to adhere to the` terms of a union-security contract, at
a -time when -Respondent did not represent a majority of
White Front' "Newark, Inc., in an appropriate unit,
Respondent has thereby attempted to cause White Front
Newark, to discriminate against its employees in- violation
of Section 8(a)(3) of the Act, and has thereby engaged in a
violation of Section 8(b)(2) of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
TAE REMEDY
Having found that Respondent has engaged in an unfair
labor practice violative of Section 8(b)(2) of the Act, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]