Retail Clerks Local 588

National Labor Relations Board - Board Decisions

Jun 23, 1976

224 N.L.R.B. 1638 (N.L.R.B. 1976)

1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Local 588 , Retail Clerks International
Association , AFL-CIO and Raley 's and Indepen-
dent Drug Clerks Association , Party in Interest
Case 20-CB-3289
and 8(b)(1)(A) by seeking to compel application of
all the terms of its collective-bargaining agreement
with Raley's, including a union-security clause, to the
aforesaid group of employees
June 23, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On August 27, 1975, Administrative Law Judge
Jerrold H Shapiro issued the attached Decision in
this proceeding Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs, the Respondent Union filed cross-exceptions
and a supporting brief, and the Charging Party filed
a brief in answer to the Respondent's cross-excep-
tions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith
For many years Raley's has bargained and signed
separate contracts with the Respondent Retail Clerks
Local 588, Retail Clerks International Association,
AFL-CIO, and the Independent Drug Clerks Associ-
ation, which Unions represent the Company's food-
store and drug center employees, respectively, the
latter, pursuant to Board certification More recently,
after Raley's made certain physical changes at the
facilities shared by several foodstores and drug cen-
ters, the Respondent Union demanded that Raley's
apply their contract to both the foodstore and drug
center employees at the shared facilities affected by
the changes, and recognize the Respondent as the
exclusive representative of both categories of em-
ployees These demands were made in the form of
letters sent to the Company, asserting that the latter
had failed to apply the terms of their agreement cor-
rectly and invoking the grievance-arbitration provi-
sions of the aforesaid agreement
Contrary to the Administrative Law Judge, we
find, on the facts and for the reasons set forth below,
that the Respondent Union violated Section 8(b)(3)
of the Act by insisting adamantly on arbitration of its
demand that Raley's recognize it as the representa-
tive of the drug center employees Similarly, we find
that the Respondent Union violated Section 8(b)(2)
Background
Raley's operates a chain of 21 retail foodstores in
the State of California The Company also operates
11 drug centers, each located in the same building
with a foodstore, but maintained as a separate entity
Prior to the remodeling changes here involved-
which were designed to increase the flow of traffic
between the two retail operations-the selling areas
of the foodstores and the drug centers were separated
by solid glass floor-to-ceiling partitions or display
counters running almost the full length of the build-
ing Customer access to these stores could be gained
through separate doors leading directly into a food-
store or drug center or via a 15-foot open concourse
between the separate checkout counters maintained
by the foodstores and the drug centers, on one side,
and the front wall of the facility, on the other
Despite the changes that have resulted in less phys-
ical separation of the two retail operations, these op-
erations have continued, as in the past, to conduct
business under separate trade names (Raley's,
Raley's Drug Center), and to maintain separate tele-
phones and merchandise storage areas However,
they do share common shipping and receiving docks
As in the past, employees of the foodstores and the
drug centers are paid by checks drawn on separate
accounts and their worktime is recorded differently,
the former on timesheets, whereas the latter punch
timeclocks Employees in both the foodstores and the
drug centers perform some similar work, such as
packing and unpacking merchandise, checking for
damaged items, and pricing and shelving merchan-
dise However, drug center employees are also in-
volved in the selling of products requiring special
knowledge and training, such as cameras, sporting
goods, guns, expensive cosmetics, and electrical ap-
pliances There is no interchange among foodstore
and drug center employees One individual at each
location, however, the janitor, is responsible for
cleaning the entire facility, is on the foodstore pay-
roll, and is covered by Raley's agreement with the
Respondent Union
Drug center employees have been and continue to
be separately supervised and are under the control of
a manager who is responsible for the day-to-day op-
erations of the drug center to which he is assigned
Likewise, each foodstore manager is responsible sole-
ly for foodstore operations and, where foodstores
and drug centers occupy the same facility, neither
224 NLRB No 209
RETAIL CLERKS LOCAL 588 1639
manager exercises any authority over the other's op-
erations This separate supervisory chain of com-
mand is maintained up to the level of Raley's vice
president in charge of operations
There are considerable differences between food-
stores and drug center merchandising characteristics
and procedures The foodstores stock approximately
6,000 separate items which are more or less standard
in nature Demand for these items remains fairly
constant during the year They are reordered weekly
by means of an electronic ordering system connected
directly with Raley's suppliers, one of which handles
more than 70 percent of foodstores merchandise of-
fered for sale The drug centers stock between 20,000
and 30,000 different items, characterized as general
merchandise, including cameras, sporting goods,
guns, ammunition, cosmetic, and electrical appli-
ances Many of these items enjoy seasonal popularity
and, accordingly, orders are placed between 6 and 8
months in advance of the peak of seasonal demand,
with some 200 suppliers Because of the differences
in merchandising, many more internal business
forms are used by the drug centers Credit cards are
accepted for merchandise purchased in the drug cen-
ters whereas they are not accepted by the foodstores
Representation of Employees
The foodstore employees historically have been
represented by the Respondent Retail Clerks, and
the drug center employees by the Independent Drug
Clerks Association In 1963, the Respondent Union
for the first time demanded recognition as the exclu-
sive bargaining representative of drug center employ-
ees in two newly opened facilities near Sacramento,
California When Raley's refused, the Respondent
Union filed a petition for an election in an expanded
geographical area The Association, which had a col-
lective-bargaining agreement with Raley's covering
drug center employees at other previously estab-
lished locations, intervened The Association won the
election and was certified by the Board as the repre-
sentative of drug center employees in a unit covering
two counties within the State of California Thereaf-
ter, Raley's and the Association entered into a series
of collective-bargaining agreements, the most recent
one covering all employees employed by Raley's
drug centers in its retail stores within the State of
California, except for one county having no connec-
tion with this controversy This agreement contains a
union-security clause and a grievance-arbitration
provision
Likewise, the current agreement between the Re-
tail Clerks and Raley's, covering all employees work-
ing in the Employer's retail foodstores, including
those involved in the instant dispute, contains a
union-security clause and a broad grievance-arbitra-
tion pro"ision The work covered by this agreement
encompasses that connected with or incidental to the
handling or selling of all merchandise offered for sale
to the public in the Employer's foodstores The
agreement also contains the following provision
NON-FOODS DEPARTMENTS It is agreed that in the
event the Employer, after the execution of this
Agreement, institutes a non-food department,
either directly or by concession, in any retail
food store or stores within the geographical ju-
risdiction of this Agreement, then a non-food
clerk classification and rates of pay therefor may
be established
The agreement further defines a nonfoods depart-
ment as a "physically separated and distinctly de-
fined section of the food store, where only non-food
merchandise is displayed "
Events Giving Rise to This Proceeding
In 1974-75, Raley's instituted certain changes in
its store layout in order to encourage traffic between
the foodstores and 5 of its 11 drug centers, having
determined that patrons did not necessarily trade
with both the foodstores and the drug centers, de-
spite the open concourses adjoining them Thus,
Raley's substantially reduced the length of partitions
and display centers which theretofore separated the
two selling areas, removed the separate checkout
counters from the drug centers, and instituted a com-
mon checkout area to service both foodstore and
drug center customers I The common checkout coun-
ters are manned by foodstore employees covered by
the Respondent Union's collective-bargaining agree-
ment As a result of this change, one drug center
clerk at each of the five stores involved, who for-
merly manned the separate checkout counters, was
eliminated
Other changes instituted at the time the remodel-
ing took place were also designed to encourage cus-
tomers of one operation to become customers of the
other In one facility, the foodstore sales area was
extended by about 20 feet into the drug center selling
area by adding two additional rows of foodstore
shelving In another, the dairy counter was moved
from the foodstore sales area to drug sundries, within
the drug center selling area, although it continued to
be serviced by a foodstore employee represented by
the Retail Clerks The remaining changes reduced
duplication of merchandise offered for sale at the
1 However Raley s continues to operate separate registers in the camera
and cosmetic departments of the several drug centers
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shared facilities, although some duplication contin-
ues 2
When the Respondent Union learned of these
changes it admittedly attempted to cause Raley's to
apply the terms and conditions of their agreement,
including its union-security clause, to the drug center
employees employed in the affected stores Thus, as a
result of these changes, the Respondent Union sent
letters to James Teel, Raley's vice president in charge
of store operations, asserting that the Company "has
opened a drug sundries department" [a "nonfoods"
department] at each of the remodeled stores without
complying with contract requirements governing the
payment of correct classification wage rates and ben-
efits to individuals in the newly created departments
In the same letters, the Union also demanded arbi-
tration of this grievance under the aforesaid agree-
ment The parties met and selected an arbitrator, but
the proceedings were suspended when Raley's filed
charges which led to the issuance of the instant com-
plaint
Analysis and Conclusion
At the outset, the Administrative Law Judge re-
jected the Respondent's contention that the Board
should defer to the arbitral process under Collyer 3 as,
in his view, the underlying issue presented by this
controversy is not contractual but, rather, relates
solely to a question of accretion, which we have held
is a matter solely within our competence to decide,4
and, further, because the Association would not be a
party to that proceeding 5 We agree
Nevertheless, the Administrative Law Judge rec-
ommended dismissal of the instant complaint He
found this case, where the Respondent's conduct oc-
curred without the Board having examined the
changed circumstances or made a ruling on the con-
tinued appropriateness of separate units, distinguish-
able from A 0 Smith 6 where the conduct found un-
lawful was in derogation of a prior Board de-
termination of a unit question 7 He reasoned that
2 For example the following items were transferred exclusively to the
foodstores cigarettes candy soda tissue and toilet paper Transferred ex
clusively to the drug centers health and beauty aids household gadgets
school supplies toothpaste sanitary napkins mops brooms and TV tubes
3 Collyer Insulated Wire A Gulf and Western Systems Co 192 NLRB 837
(1971)
4 See Hershey Foods Corporation 208 NLRB 452 (1974) Combustion Engi
neering Inc 195 NLRB 909 (1972)
5 Retail Clerks Union Local 324 (Esgro Inc) 206 NLRB 931 (1973)
6 Smith Steel Workers Directly Affiliated Labor Union 19806 AFL-CIO
(A 0 Smith Corporation 174 NLRB 235 (1969) enfd in relevant part sub
nom Smith Steel Workers v A 0 Smith Corporation 420 F 2d I (C A 7
1969)
7 Similarly the Administrative Law Judge distinguishes Sperry Systems
Management Division Sperry Rand Corporation v N L R B 492 F 2d 63
(C A 2 1974) where the court found that the union s conduct in seeking to
implement an arbitrators award was in direct contradiction of a prior
Board determination
an important and integral part of our national
labor policy favors the use by parties to a collec-
tive-bargaining agreement of the Agreement's
grievance-arbitration machinery to resolve dis-
putes the statutory rights of all of the par-
ties who are concerned about the outcome of
this dispute are sufficiently protected so that the
grievance-arbitration machinery should be al-
lowed to run to its conclusion, and the Board
should exercise its superior authority only when
it becomes necessary 8
Thus, although the Administrative Law Judge reject-
ed the Respondent's Collyer defense, he deferred to
the arbitration procedure in fact We cannot sub-
scribe to either his rationale or his result
Contrary to the view of the Administrative Law
Judge, here, as in A 0 Smith, supra, and Sperry
Rand, supra, the Union's insistence on application of
the terms of its contract to the drug center employees
amounted to adamant insistence that Raley's bargain
for a unit which the Board previously found to be
inappropriate It is irrelevant that the Board's unit
finding had been made prior to a change of circum-
stances As in virtually every case of alleged unfair
labor practices, the Respondent acts at its peril I if,
upon subsequent litigation before this Board, its po-
sition that the drug center employees have accreted
to the unit which it represents were found to be cor-
rect, then no violation would be found, but if it be
found that the drug center unit maintained its identi-
ty and continued to be separately appropriate, the
Respondent Union's insistence upon recognition as
the representative of employees in that unit contra-
venes the mandate of Section 8(b)(3) of the Act
In view of the foregoing, we must determine
whether the changes instituted by Raley's resulted in
an accretion of the drug center employees to the
foodstore unit represented by the Respondent
Union The Administrative Law Judge considered
the relevant evidence, in the event we disagreed with
his dismissal herein He found no accretion, holding
that the following factors "overwhelmingly counter-
balance" those relied on by the Respondent which
flowed from the changes instituted by the Company
(1) Continued separate day-to-day supervision of
foodstore and drug center employees, (2) absence of
any interchange between employees in the above
units, (3) separate administrative chain of command
up to the office of the Company's vice president in
charge of operations, (4) different merchandising
procedures governing the operation of the foodstores
8 ALJD sec IV D Analysis and Concluding Findings par 9
9 E g Melbet Jewelry Co Inc and I D S Orchard Park Inc 180 NLRB
107 (1969)
RETAIL CLERKS LOCAL 588 1641
and the drug centers, (5) separate bargaining history,
both before and after Board certification of the Asso-
ciation as representative of drug center employees,
which resulted in substantially different wages and
working conditions, and (6) the certification itself
We agree with the Administrative Law Judge that
the changes instituted by the Company have not im-
paired the separate community of interest shared by
drug center employees, that they remain an appropri-
ate unit for collective bargaining, and that it would
have been improper to extend the Respondent's con-
tract to the aforesaid employees "under the guise of
accretion " 10
Accordingly, we find that the Respondent Union's
insistence upon arbitration to compel recognition of
its as the representative of Raley's drug center em-
ployees was, and is, in the circumstances of this case,
insistence upon bargaining for an inappropriate unit
in breach of the Respondent's obligation to bargain
in good faith The Respondent's conduct thus was,
and is, violative of Section 8(b)(3) of the Act
Further, we find that, by insisting upon the appli-
cation of its entire contract, including the union-se-
curity provision, to Raley's drug center employees,
the Respondent Union has attempted and is attempt-
ing to cause Raley's to discriminate against the afore-
said employees in violation of Section 8(b)(2) We
find that the aforesaid conduct has the effect of re-
straining and coercing those employees in violation
of Section 8(b)(1)(A) of the Act 11
3 Independent Drug Clerks Association is a labor
organization within the meaning of Section 2(5) of
the Act, and at all times material herein has been,
and is, the exclusive representative of certain Raley's
drug center employees for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act
4 By insisting upon recognition as the representa-
tive of Raley's drug center employees, Respondent
Retail Clerks has insisted and is insisting upon bar-
gaming for an inappropriate unit and, therefore, has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(3) of the Act
5 By insisting upon application of its entire con-
tract, including the union-security provisions, to
Raley's drug center employees, Respondent Retail
Clerks has attempted to cause Raley's to discriminate
against the aforesaid employees and, therefore, has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(2) of the Act
6 By the aforesaid conduct, Respondent Retail
Clerks has restrained and coerced and is restraining
and coercing employees in violation of Section
8(b)(1)(A) of the Act
7 The unfair labor practices herein found are un-
fair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
ORDER
THE REMEDY
Having found that the Respondent Union has en-
gaged in unfair labor practices, as set forth above, we
shall order that it cease and desist therefrom and that
it take certain affirmative action designed to effectu-
ate the policies of the Act
CONCLUSIONS OF LAW
I Raley's, a California corporation, is an employ-
er engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
2 Respondent Retail Clerks Local 588, Retail
Clerks International Association, AFL-CIO, is a la-
bor organization within the meaning of Section 2(5)
of the Act, and at all times material herein has been,
and is, the exclusive representative of certain Raley's
foodstore employees for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act
10 Ibid
Cf Smith Stee l Workers Directly Affiliated Labor Union 19806 AFL-
CIO (A 0 Smith Corporation) 174 NLRB 235 241-242 (1969)
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondent,
Retail Clerks Local 588, Retail Clerks International
Association , AFL-CIO, its officers , agents, and rep-
resentatives, shall
1 Cease and desist from
(a) Insisting that Raley ' s recognize and bargain
with Respondent as the representative of Raley's
drug center employees
(b) Insisting upon application of its collective-bar-
gaining agreement , including the union -security pro-
vision , to Raley's drug center employees
(c) Filing or attempting to file grievances against
Raley's or demanding that Raley's arbitrate any
grievance over its recognition of Independent Drug
Clerks Association as the exclusive bargaining repre-
sentative of the aforesaid drug center employees
(d) Filing or attempting to file grievances against
Raley's or demanding that Raley's arbitrate any
grievance concerning the application of
Respondent ' s collective-bargaining agreement, in-
cluding the union-security provision , to the aforesaid
drug center employees
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any other manner restraining or coercing
employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, except to the extent that those
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
2 Take the following action which the Board
finds will effectuate the policies of the Act
(a) Post at its business offices and meeting halls in
El Dorado Hills, Sacramento, Rancho Cordova, Fair
Oaks, and Lake Tahoe, California, copies of the at-
tached notice marked "Appendix " 12 Copies of said
notice, on forms provided by the Regional Director
for Region 20, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to members are customarily posted Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material
(b) Mail to the Regional Director for Region 20
signed copies of the notice attached hereto marked
Appendix for posting by Raley's, the latter willing, at
its premises in El Dorado Hills, Sacramento, Rancho
Cordova, Fair Oaks, and Lake Tahoe, California, in
places where notices to employees are customarily
posted Copies of the notice, to be furnished by the
Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be re-
turned forthwith to the Regional Director for such
posting
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with
12 In the event that 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
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present evidence, the Board has found that we vio-
lated the National Labor Relations Act and has or-
dered us to post this notice and we will abide by the
following
WE WILL NOT insist that Raley's recognize and
bargain with us as the representative of Raley's
drug center employees
WE WILL NOT insist upon application of our
collective-bargaining agreement, including the
union-security provision, to Raley's drug center
employees
WE WILL NOT file or attempt to file grievances
against Raley's or demand that Raley's arbitrate
any grievance over its recognition of Indepen-
dent Drug Clerks Association as the exclusive
bargaining representative of the aforesaid drug
center employees
WE WILL NOT file or attempt to file grievances
against Raley's or demand that Raley's arbitrate
any grievance concerning the application of our
collective-bargaining agreement, including the
union-security provision, to the aforesaid drug
center employees
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of rights guar-
anteed in Section 7 of the Act, except to the
extent that those rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment as au-
thorized in Section 8(a)(3) of the Act
RETAIL CLERKS LOCAL 588, RETAIL CLERKS
INTERNATIONAL ASSOCIATION, AFL-CIO
DECISION
STATEMENT OF THE CASE
JERROLD H SHAPIRO, Administrative Law Judge The
hearing in this case, held on July 8, 1975, is based upon a
charge and amended charges filed by Raley's I against Re-
tail Clerks Local 588, Retail Clerks International Associa-
tion, AFL-CIO, herein called Respondent, and an amend-
ed complaint issued June 25, 1975, on behalf of the
General Counsel of the National Labor Relations Board,
by the Regional Director of the Board, Region 20, alleging
that Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(3), (2), and (1)(A) of the
National Labor Relations Act, as amended, herein called
the Act Respondent filed an answer to the amended com-
plaint denying the commission of the alleged unfair labor
practices
Upon the entire record, from my observation of the de-
meanor of James Teel, the sole witness, and having consid-
ered the posthearing briefs, I make the following
1 The initial charge was filed September 24 1974 and amended charges
were filed December 10 1974 May 1 1975 and June 5 1975
RETAIL CLERKS LOCAL 588 1643
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
Raley's Inc., herein called Raley's, is a California corpo-
ration which is engaged in the retail sale of groceries, meat
products and general merchandise at several locations in
California and Nevada. During 1974 Raley's received gross
revenues in excess of $500,000 and purchased and received
merchandise and supplies within California valued in ex-
cess of $50,000 which originated from points outside Cali-
fornia. Admittedly Raley's is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. Under the circumstances, I find that it will effectuate
the purposes of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Respondent , Retail Clerks Local
588, Retail Clerks International Association , AFL-CIO,
and the Independent Drug Clerks Association , herein
called the Association , each are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE QUESTION PRESENTED
The essential question to be decided is whether it is a
violation of the Act for Respondent to demand, through
the grievance-arbitration procedure in its collective-bar-
gaining agreement with Raley's, that a group of Raley's
employees who historically have been represented by the
Association should now, because of changed circum-
stances, be represented by Respondent and covered by the
terms and conditions of Respondent's collective- bargain-
ing agreement with Raley's.
IV. THE UNFAIR LABOR PRACTICES
A. The Setting, the Collective-Bargaining History, and the
Events in Chronology
The Charging Party, Raley's, operates a chain of retail
foodstores and drug centers in California. Raley's com-
menced its foodstore operation in 1936 and in 1958 opened
its first drug center. Now Raley's operates 21 foodstores
and 11 drug centers located in California. Although the
foodstores and drug centers are operated by Raley's, the
drug centers do business under the trade name, "Raley's
Drug Centers" 2 The drug centers are each situated in the
same building with a foodstore and prior to the remodeling
which triggered the instant dispute the selling area in all of
the drug centers was separated from the foodstores' selling
area by a floor-to-ceiling glass partition.3 The drug centers
and foodstores maintained separate checkout stands.
2 This is true for all of the drug centers except the one located in Raley's
El Dorado Hills store which, because its pharmacy was eliminated, is called
"Raley's Family Center" Under California law there must be a pharmacy
in order to use the title "Drug Center "
3 This was true for all the stores except the one located in El Dorado Hills
where the selling areas were separated by an unbroken row of fixtures
The clerks employed in the drug centers and in the food-
stores have been represented historically by different labor
organizations; the foodstore clerks by Respondent and the
drug center clerks by the Association When Raley's
opened a new store which contained both a foodstore and
a drug center it transferred experienced personnel from ex-
isting stores to the new location and, upon request, accord-
ed recognition to the Respondent for the foodstore clerks
and to the Association for the drug center clerks. Until
1963 Respondent made no demand on Raley's to represent
the drug center clerks. In 1963 when Raley's opened two
new facilities in the vicinity of Sacramento, California, Re-
spondent demanded that Raley's recognize it as the bar-
gaining representative of the drug center clerks employed
in these stores. Raley's refused and Respondent filed a rep-
resentation petition with the Board's Regional Director in
Case 20-RC-5353 which resulted in the Respondent enter-
ing into a Consent Election Agreement with the "Raley's
Drug Centers" whereby they agreed that the Board should
conduct a secret ballot election in a voting unit of "all
selling and non-selling employees of [Raley's Drug Cen-
ters] at its stores located in Sacramento and Yolo counties
California, excluding registered pharmacists, guards, and
supervisors as defined in the Act." The Association which
had a collective-bargaining agreement with Raley's Drug
Centers covering the drug center clerks intervened in the
representation proceeding and the Board then conducted a
secret ballot election in the above-described voting unit
comprised of 10 stores. A majority of the eligible voters
cast their ballots for the Association and on July 7, 1964,
the Board's Regional Director certified the Association as
the exclusive bargaining representative of Raley's Drug
Centers' employees in the above-described unit.
Subsequent to the certification the Association and
Raley's Drug Centers entered into a series of collective-
bargaining agreements covering the employees employed
in the drug centers, the most recent agreement being effec-
tive September 4, 1973, through September 4, 1976. The
agreement recognizes the Association as the representative
of all employees employed by Raley's Drug Centers in its
retail stores within California except for Tehama County
and excludes from the bargaining unit the store manager,
assistant store managers, registered pharmacists and secur-
ity officers. The Agreement contains a lawful union securi-
ty clause requiring membership in the Association as a
condition of continued employment and has a grievance
procedure ending with binding arbitration to resolve dis-
putes concerning the application or the interpretation of
the agreement.
There are two collective-bargaining agreements between
Raley's and the Respondent which are pertinent to this
case. The first one was effective from June 1, 1971, through
May 31, 1974, and the successor agreement is currently in
effect from June 1, 1974, until February 26, 1977. These
agreements, which in pertinent part are essentially identi-
cal, for the sake of convenience will be referred to as the
Agreement. Section 1, entitled "Recognition and Contract
Coverage" provides in paragraph "(a)" that Raley's recog-
° Raley's meat department employees employed in the food stores have
always been represented by the Butchers Union
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nizes the Respondent as the sole collective-bargaining rep-
resentative "of all employees working in the Employer's
retail food stores within the geographical jurisdiction of the
[Respondent] covering Sacramento, Yolo, Placer, El Dora-
do, Amador, Calaveras, Tuolumne, and Stanislaus Coun-
ties, except meat department employees and supervisors
within the meaning of the National Labor Relations Act,
as amended." The employees covered by the Agreement
are required as a condition of continued employment to
become and remain a member of Respondent. Paragraph
"(b)" and "(c)" of section 1 reads:
(b) CLERK'S WORK: The work covered by this Agree-
ment shall be performed only by members of the ap-
propriate unit as defined in Section I(a) hereof and
such work shall consist of all work and services con-
nected with or incidental to the handling or selling of
all merchandise offered for sale to the public in the
Employer's retail food stores including the demonstra-
tion of such products, but excluding
r
(C) NON-FOODS DEPARTMENTS: It is agreed that in the
event the Employer, after the execution of this Agree-
ment, institutes a non-food department, either directly
or by concession, in any retail food store or stores
within the geographical jurisdiction of this Agreement,
then a non-food clerk classification and rates of pay
therefor may be established under the following con-
ditions:
The Agreement then sets out several conditions for the es-
tablishment of a nonfoods clerks classification which pays
a lower hourly rate of pay than the food clerks classifica-
tion. Specifically, it defines "food and non-food merchan-
dise" in these terms:
Food Merchandise: Food merchandise shall consist
of all foodstuffs, including pet supplies, liquor and
other beverages, nursery items, shoe and metal polish-
es, light globes, candy and tobacco products, insecti-
cides, all household paper goods, and all household
cleaning and laundry supplies. None of the named
categories of food merchandise may be removed from
the Employer's food operation to a non-food depart-
ment.
Non-Food Merchandise: Non-food merchandise
shall consist of any merchandise other than that in-
cluded in the definition of food merchandise:
Then, defines a nonfood department: "A non-foods de-
partment shall consist of a physically separated and dis-
tinctly defined section of the food store, where only non-
food merchandise is displayed." The Agreement requires
that "all persons performing non-food work in a non-food
department shall be covered by this Agreement, except
only that a single owner or lessee of such a department
shall be exempt," and, as a last condition provides:
In the event the Employer fails to observe the terms
of this section in any respect, the Union shall notify
the Employer in writing of such violation, and it shall
be corrected. Following such notice if the Employer
again violates the terms hereof and it is so determined
by the Adjustment Board or an Arbitrator, then, in
such event, such Employer shall no longer be entitled
to a non-food clerk classification, and the food clerk
rates shall thereafter become applicable to all non-
food work in the Employer's store where the violation
occurred.
Finally, the Agreement contains a grievance procedure
ending in binding arbitration by a neutral arbiter on "all
claims, disputes and grievances arising . . . during the term
of this Agreement over the construction and application of
this Agreement."
The 11 drug centers, as previously indicated, are situated
under the same roof as the food stores and before the
changes which occurred in 1974 and 1975 were separated
from the foodstores by a glass partition and had separate
checkout counters for their customers. In 1974 and 1975 on
various dates this situation changed in the following five
stores: Saratoga Way, El Dorado Hills; Freeport Blvd.,
Sacramento; Folsom Blvd., Rancho Cordova; San Juan
Ave., Fair Oaks; and Crescent V Shopping Center, So.
Lake Tahoe.' The Employer determined that in spite of an
open concourse area between the checkout counters its
customers did not necessarily trade with both the foodstore
and the drug center, so, the Employer decided to improve
the ease of customer access between the drug center and
foodstores located in these five locations. Raley's removed
the partitions which separated the drug center's selling area
from the foodstores'. Also, the drug centers in these stores
no longer maintained their own checkout counters rather
the customers who purchased items stocked in the drug
centers' selling area checked them out in centralized check-
out counters operated by foodstore clerks. Three of the five
drug centers in which the above changes occurred, the Sac-
ramento, Rancho Cordova, and Fair Oaks stores, were part
of the multistore unit for which the Association was certi-
fied by the Board's Regional Director at the time of the
issuance of the certification.6 All five of the stores however
are a part of the certified bargaining unit and are covered
under the current collective-bargaining agreement as well
as by the previous agreements between the Association and
Raley's Drug Centers.
When it learned that the partition had been removed in
the five stores and that the stores used common checkout
stands operated by food clerks Respondent admittedly at-
tempted to cause Raley's to apply the terms and conditions
of its Agreement, including the union security clause, to
the drug center clerks employed in the affected stores.'
5 These five stores are herein collectively called the stores or the five
stores and separately referred to as the El Dorado Hills, Sacramento, Ran-
cho Cordova, Fair Oaks, and Lake Tahoe stores
6 The other two stores apparently did not commence to operate until after
the date of the 1964 representation election
r In Its brief Respondent contends its grievance was limited to the wages
and benefits that Raley's was obligated to pay the drug center clerks under
the terms of Respondent's collective-bargaining agreement and that Re-
spondent has not demanded compliance with the remainder of the Agree-
ment I disagree Respondent in its answer admitted that paragraph 15 of
the amended complaint was true This paragraph in effect alleges that since
March 24, 1974, Respondent has attempted to cause Raley's to apply the
terms and conditions of its Agreement with Respondent which contains a
union security agreement to the drug center employees Moreover, at the
RETAIL CLERKS LOCAL 588 1645
Respondent's president wrote identical letters to Raley's
executive vice president which read:
It has been reported by Business Representative
that your organization has opened a Drug
Sundries Department in your [name of store].
The Business Representative further advises the
Union that although he has requested your compli-
ance with the existing bargaining agreement insofar as
the payment of correct classification, wage rates and
benefits, your store manager has failed and refused to
apply the contract correctly in this department.
Accordingly, the Union requests an immediate meet-
ing of a Board of Adjustment within the time limits
specified in the Agreement to consider this grievance.
Please advise me as to the earliest date and time at
which the Board of Adjustment may be convened.
Thereafter representatives of Respondent and Raley's met
and selected an impartial arbitrator to consider the griev-
ance but when Raley's filed the unfair labor practice
charges in this case and the complaint issued the represen-
tatives of Raley's and Respondent agreed to suspend the
arbitration until the Respondent's right to proceed to arbi-
tration was clarified by the Board in this proceeding.
B. A Description of the Five Stores Involved in the Dispute
(1). The physical layout of the five stores is essentially
the same. The foodstore is on one side, the drug center on
the other, and there is a common customer parking lot.
Prior to the changes which triggered the Respondent's
grievance the selling areas of a store's drug center and food
market were separated by a floor-to-ceiling glass partition
except in one store where this separation was accomplished
by the use of an unbroken line of fixtures. The partition
did not extend the full length of the store. There was an
open concourse of about 15 feet between the selling areas,
through which customers could pass freely, in front of the
checkout counters. There were separate exits and entrances
for the drug center and food market, and each had its own
checkout counters but in view of the concourse it was not
necessary for customers to enter directly into the drug cen-
ter in order to gain access to this department. Large signs
in front of the building denote the drug center and food-
store respectively. Each facility maintains separate phones
and their backrooms where merchandise is stored are sepa-
rated by a wall, but merchandise is received and shipped
from a common shipping and receiving dock.
The sole changes in the above physical appearance of
the five stores which triggered the instant dispute are as
follows: The partitions which divided the selling areas in
hearing Respondent through its attorney conceded that Respondent's posi-
tion in this proceeding and in the grievance -arbitration proceeding was that
the drug center clerks employed in the five stores in dispute were covered by
all of the provisions of the Respondent 's Agreement Under the circum-
stances I reject Respondent 's contention that the disposition of this case is
governed by the Board 's decision in Local 445, International Union of Elec-
trical, Radio and Machine Workers , AFL-CIO (Sperry Rand Corporation),
208 NLRB 183 (1973)
the food stores and drug centers were removed ; the sepa-
rate set of checkout counters for the drug centers and food-
stores were removed and replaced with a centralized island
of checkout counters which service both areas; the separate
exits and entrances were removed from the drug centers;
and, in one store an access way was created between the
backrooms of the drug center and the market which the
Employer intends to eliminate by building a wall.
(2). The five stores employ the following approximate
numbers of drug center clerks and foodstore clerks: 8 Sac-
ramento, 7 drug and 33 food ; Fair Oaks, 6 drug and 16
food ; Rancho Cordova , 6 drug and 15 food ; Lake Tahoe,
15 drug and 33 food.'
(3). The female drug center clerks wear yellow smocks.
The males are not required to wear a uniform but those
that chose to do so wear red vests identical to those worn
by the senior head clerk , a foodstore clerk . The foodstore
clerks wear red aprons.
The drug center clerks punch a timeclock using a time-
card whereas the foodstore clerks record their time on a
timesheet . Both types of employees are paid by check;
however, the foodstore clerks are paid on a Raley's check
whereas the drug center clerks are paid by a check drawn
on a special account maintained by Raley's for the drug
centers and the checks are inscribed, "Raley's Drug Cen-
ters."
The foodstore clerks and drug center clerks in general
have the same skills and perform the same type of work.
They receive and unpack merchandise , check it for dam-
aged items , price and shelve merchandise, and prior to the
change in circumstances involved herein , both the drug
center as well as the foodstore clerks recorded and bagged
customers ' merchandise at the checkout counters . The drug
center clerks who are responsible for sporting goods, ex-
pensive cosmetics , cameras and electrical appliances need
a special knowledge of these products since they are not
self-service items but often require selling by the clerk10
These clerks are given special training to familiarize them-
selves with this merchandise.
There is no employee interchange or transfer of employ-
ees between the drug centers and the food stores. There is
one employee , however, the store janitor who cleans up in
both the drug center and food store areas and is covered by
the terms of Raley's Agreement with Respondent.
The above description of the clerks holds true for the
five stores involved herein for all times prior to and after
the changes involved herein except that the drug center
clerks no longer continued to checkout and bag customers'
merchandise after the separate checkout counters were
eliminated for the drug centers ." This has reduced the em-
8 Drug center clerks refer to employees employed in the drug centers who
are covered by the Association' s agreement Food store clerks refer to em-
ployees employed in the foodstores covered by Respondent's agreement
9 The business in this store is seasonable The above figures are for the
summer months Employment falls off by 50 percent during the other
months
10 Of the drug centers involved herein all but the El Dorado store handle
the above merchandise The El Dorado drug center does not have a cosmet-
ic bar
ii The clerks who worked in a drug centers' camera department or cos-
metic bar continued to check out a limited amount of merchandise since
these departments retained separate cash registers.
1646 DECISIONS OF N.•_TIONAL LABOR RELATIONS BOARD
ployment complement in each of the five drug centers by
about one clerk.
(4). The drug center clerks at all times before and after
the changes made in the five stores involved herein have
been separately supervised. Each drug center has its own
manager who supervises the drug center's operation. A
foodstore manager supervises its operation. The drug cen-
ter manager prices and orders the merchandise sold in the
drug center, develops sales campaigns, schedules and as-
signs the work to the drug clerks and hires, fires, and disci-
plines the drug clerks. The drug center manager has no
authority over the foodstore clerks or the operation of the
foodstore nor does the foodstore manager have any au-
thority over the drug center clerks or the operations of the
drug center.
The drug center manager is responsible to the "Drug
Center Supervisor" who reports to the "drug buyer" who,
in connection with merchandising, answers to the "mer-
chandising manager" and in connection with operational
aspects to James Teel, Raley's vice president in charge of
operations. The foodstore manager is responsible to the
"supermarket supervisor" who reports to the "grocery buy-
er" who answers to the "merchandising manager" where
merchandising problems are involved and to James Teel in
connection with the operational aspects of the store. All of
the above-described management personnel except for the
store managers are located in Raley's corporate headquar-
ters. Teel has the final responsibility over labor relations
for both the foodstores and the drug centers.
(5). Although 6,000 items are stocked in the separate
foodstores, anywhere between 20,000 and 30,000 are car-
ried in the separate drug centers. Raley's categorizes its
drug center products as general merchandise and these
items include cameras, electronic equipment, sporting
goods including guns and ammunition, expensive cosmet-
ics, toys and a myriad of other household items including
the usual health and beauty products. In view of the sea-
sonal popularity of a substantial number of the general
merchandise items, as contrasted to food items, the or-
dering process used in a drug center is totally different
from that used in a foodstore and in many instances or-
dering takes place 6 to 8 months in advance of peak season
rather than weekly, as is the case with items stocked in the
foodstore. Unlike the foodstore, where all ordering is done
by way of an electronic system, a running perpetual inven-
tory is kept in the drug centers and the drug center manag-
er deals with numerous outside sales persons. A drug cen-
ter orders its merchandise through about 200 suppliers who
are represented by sales persons, whereas 70 percent of the
foodstore's buying is done through one supplier.
Although many of the products sold in the drug centers
are self-service items, the drug center clerks frequently per-
form selling functions with respect to cameras, electronic
products, cosmetics and sporting goods. Unlike the market
clerks who perform no selling whatsoever, drug center
clerks who handle this merchandise are required to have
product knowledge in order to effectively deal with the
customers. As a result, the drug center clerks attend semi-
nars sponsored by the manufacturers for the purpose of
becoming familiar with new product lines.
Due to the different type of merchandise offered for sale,
the separate ordering procedures and merchandising meth-
ods, a substantial number of internal business forms, not
used by the foodstores, have been devised by the drug cen-
ters in carrying out their business operations. These forms
include receiving reports, repair orders, weekly ad copy,
firearms control sheet, recap of store purchases, markdown
reports, and prescription reports. Also unlike the food-
stores the drug centers accept credit cards and the drug
clerks are required to prepare the necessary charge slips.
Regarding advertising Raley's maintains one advertising
department but separate persons within that department
work exclusively on items handled in the foodstores or
drug centers. Occasionally a drug center and foodstore will
advertise using the same ad but on other occasions the ad
will differentiate between the drug center and foodstore.
The merchandise stocked in the drug center and foodstore
is advertised by means of circulars distributed throughout
the store in addition to the usual separate signs posted in
the drug center and foodstore as well as the signs posted on
the front of the store.
From the start of operations there was always some du-
plication of merchandise carried by the drug centers and
foodstores. For example, each sold health and beauty aids,
household gadgets, cigarettes, light bulbs, plants, candy,
writing paper, tissues, sanitary napkins, mops, dustpans,
tissues, insecticides, TV tubes, shoe polish, and beverages.
As part of its plan to make the total operation more eco-
nomical Raley's when it removed the partition separating
the drug center and foodstore selling areas also eliminated
some of this product duplication and as a result such items
as cigarettes, candy, soda, tissue paper, and toilet paper are
now offered for sale only in the foodstores and other items
such as health and beauty aids, household gadgets, school
supplies, tooth paste, sanitary napkins, mops, brooms, TV
tubes are now offered for sale only in the drug centers.
Other changes in merchandise distribution which were
made when the partitions were removed was the transfer of
the dairy cooler from the foodstore's sales area into the
drug center's sales area since it was believed that this
change would increase foot traffic into the drug centers.
And in the Sacramento store the foodstore's sales area was
extended by about 20 feet into the drug center's selling
area by the addition of two rows of foodstore shelving.
C. The Positions of the Parties
The General Counsel and Charging Party contend that
the drug center clerks employed in the five stores involved
in this dispute constitute an appropriate bargaining unit
separate and apart from the foodstore clerks and that a
combined unit of food and drug clerks is inappropriate,
and, under the circumstances , Respondent violated Section
8(b)(3) of the Act by using the grievance -arbitration ma-
chinery in its agreement with Raley's to compel Raley's to
cease recognizing the Association and to instead recognize
the Respondent as the drug certer clerks' bargaining repre-
sentative in an inappropriate unit. It is also urged that
Respondent violated Section 8(b)(2) and (1)(A) by
attempting , through the use of the contractual
grievance-arbitration procedure , to compel Raley's to ap-
ply Respondent 's collective-bargaining agreement, includ-
RETAIL CLERKS LOCAL 588
mg the union security provision, so as to cover the drug
center clerks, even though Respondent does not represent
these employees
Respondent defends on several grounds (1) Raley's has
effectively closed and eliminated the drug centers in the
five disputed stores leaving only a foodstore, thus, the only
remaining appropriate unit is the unit defined by
Respondent's collective-bargaining agreement, a unit of
food and nonfood department employees employed in the
food stores By the terms of the agreement Respondent
contends Raley's was obligated to recognize the Respon-
dent as the representative of the drug center clerks and
apply the agreement to these employees, (2) assuming that
the disputed drug centers were not closed or eliminated
Respondent claims it is still entitled to lawfully represent
the drug center clerks because, as the result of changed
circumstances, they constitute an accretion to the unit of
foodstore clerks represented by Respondent, (3) regardless
of the merit of Respondent's claim to representative status
over the disputed drug center clerks the Respondent's right
to use its contractual grievance procedure to resolve dis-
putes covered b., its Agreement is specifically sanctioned
by the Act and cannot be the basis of an unfair labor prac-
tice charge where as here Respondent has acted in good
faith upon a colorable contractual claim and has not un-
dertaken a strike or other coercive action which would be
disruptive of the bargaining relationship in the contract
unit or would otherwise be disruptive of employees' statu-
tory rights, (4) the Board should apply its Collyer doc-
trine 12 and defer to the contractual grievance-arbitration
procedure
D Analysis and Concluding Findings
The Respondent and the Association have historically,
in separate bargaining units, represented the drug center
clerks and foodstore clerks employed in Raley's 11 stores,
each group covered by a separate collective-bargaining
agreement The whole record including this bargaining his-
tory demonstrates that prior to the changes which triggered
this dispute that a unit consisting solely of the drug center
clerks was an appropriate unit within the meaning of the
Act Respondent does not contend otherwise and does not
challenge the appropriateness of a unit limited to the drug
center clerks at the six stores not involved in this litigation
It is only at the five stores in which Raley's made the
above-described changes that Respondent, because of the
changes, urges that the drug center clerks in the affected
stores are now a part of Respondent's bargaining unit Re-
spondent argues that the remodeling of these stores and the
other related changes left,
one retail facility at each location, and it was clearly
the supermarket The non-food section of the store
was thus physically, logically and semantically a de-
partment "Raley's Drug Centers" as an entity and
trade name no longer existed in those stores
It follows, Respondent argues, that a unit consisting of
12 Collyer Insulated Wire A Gulf and Western Systems Co 192 NLRB 837
(1971)
1647
drug center employees at the five disputed stores is no lon-
ger an appropriate bargaining unit inasmuch as the
changed circumstances have caused them to become an
integral part of the food s*ores covered by Respondent's
collective-bargammg agreement with Raley's which pro-
vides "all persons performing non-food work in a non-food
department shall be covered by this agreement "
The law is settled, however, that unless unit accretion is
established, an employer and union may not, without the
majority consent of the employees to be added, expand an
established bargaining unit to take in a group of employees
who have not designated the union as their bargaining rep-
resentative Melbet Jewelry Co, Inc, and I D S -Orchard
Park, Inc, 180 NLRB 107 (1969) As the drug center clerks
have not separately designated the Respondent as their
majority representative, one of the questions to be resolved
in this proceeding is whether or not a finding is warranted
that these employees in the five disputed stores have be-
come merged through accretion into Respondent's food-
store bargaining unit However before reaching this ques-
tion it is necessary to evaluate Respondent's further
contentions that the Board should defer this matter to the
parties contractual grievance-arbitration machinery pur-
suant to its policy of favoring arbitration, as expressed in
Collyer Insulated Wire, 192 NLRB 837 (1971), or dismiss
the complaint because as a matter of law the means used
by Respondent, the filing of a grievance, to compel the
Employer to extend Respondent's contract is not the type
of conduct which constitutes a violation of the Act
The short answer to Respondent's Collyer defense is that
for me to recommend that this matter be deferred pending
a decision by an arbitrator would be contrary to control-
ling Board precedent The Board has held that where unit
accretion is the issue, "it will not eschew its statutory obli-
gation to decide that issue itself " Hershey Foods Corpora-
tion, 208 NLRB 452, 456-457 (1974) and Combustion Engi-
neering, Inc, 195 NLRB 909 (1972) In Combustion
Engineering addressing itself to the contention that the
Board should respect an arbitrator's award involving the
question of unit accretion, the Board stated
With respect to the award of the arbitrator, the
question of whether the existing contract was intend-
ed, or can be construed, to cover those employees [of
the newly acquired plant] who were hired after its ef-
fective date is a question for the arbitrator, but his
conclusion on that issue does not govern or guide the
Board in its disposition of the issue presented here
For, though the arbitrator answered the question in
the affirmative, it is nevertheless the obligation of the
Board to determine whether the employees at [the
newly acquired plant] constituted an accretion to the
existing unit On the facts before us, we agree with the
Trial Examiner that such a finding is not warranted
here
As prevailing Board law does not warrant deferral to an
arbitrator's award on the issue involved in this case I reject
Respondent's Collyer defense 13
13 Also deferral to arbitration in this case would not be appropriate since
it appears that the Association one of the parties affected by the instant
Contin ued
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assuming arguendo that the disputed drug center clerks
are not an accretion to the Respondent's contractual bar-
gaining unit I shall evaluate the General Counsel's claim
that by using the contractual grievance machinery to com-
pel Raley's to extend its contract with Respondent to cover
the drug center clerks that Respondent has violated Section
8(b)(3) of the Act. In support of this position both the Gen-
eral Counsel and Raley's principally rely on Smith Steel
Workers, Directly Affiliated Labor Union 19806, AFL-CIO
(A. O. Smith Corporation), 174 NLRB 235 (1969) enfd. in
part sub nom. Smith Steel Workers v. A. O. Smith Corpora-
tion, 420 F.2d 1 (C.A. 7, 1969). Also relevant in evaluating
the General Counsel's contention is the decision of the
court of appeals in Sperry Systems Management Division,
Sperry Rand Corporation v. N.L.R.B, 492 F.2d 63 (C.A. 2,
1974).
In A. O. Smith a union sought to file grievances with an
employer over the employer's recognition of another union
as the bargaining representative of certain employees.
Those employees had been represented by this union, prior
to the time when the Board, in a unit clarification proceed-
ing 14 during the term of the union's contract with the em-
ployer, held that the employees in question should be in-
cluded in the unit represented by the other union. When
the employer refused to submit the matter to arbitration,
the union filed a suit in a Federal district court under Sec-
tion 301 of the Labor Management Relations Act to com-
pel arbitration. The Board 15 concluded that these actions
amounted to adamant insistence by the union that the em-
ployer continue to bargain with it for a unit which the
Board had already found inappropriate, and hence consti-
tuted a refusal to bargain in violation of Section 8(b)(3) of
the Act.
The Seventh Circuit in A O. Smith sustained the
Board's finding that the union violated Section 8(b)(3) by
insisting that the employer continue to recognize it as the
representative of employees whom the Board, in a unit
clarification proceeding, had excluded from its unit and
included in a unit represented by another union. The court
rejected the union's contentions that it was merely seeking
to exhaust its contractual grievance procedures in order to
demand arbitration as a necessary precondition for com-
mencing an action under 301 of the Taft-Hartley Act to
enforce its bargaining agreement. While the court was of
the view that the Board could not base an unfair labor
practice finding on the filing of a suit under Section 301, or
on the taking of steps to exhaust contract grievance proce-
dures as a prerequisite to a suit undertaken in good faith, it
could, the court held, make such a finding on the basis of
the union's insistence on recognition and bargaining for a
unit which the Board had found inappropriate in its unit
clarification decision. That decision, the court noted, pre-
dispute, would not be a party to the arbitration proceeding See Retail
Clerks, Local 324 (Esgro, Inc), 206 NLRB 931 (1973)
14A 0 Smith Corporation, 166 NLRB 845 (1967)
15 Chairman McCulloch and Member Zagoria dissenting, were of the
view that the union's actions were merely designed to enable it to exercise its
lawful privilege to institute a lawsuit under Section 301 to compel arbitra-
tion, since the attempt to exhaust the grievance-arbitration provisions of the
contract was a prerequisite to filing of such a suit under various Supreme
Court decisions
eluded any recourse by the union to arbitration or other
grievance procedures by leaving no contractual issues
which could be arbitrated.
The thrust of both the Board and the court' s decision in
A. O. Smith is that after a valid Board decision of the ap-
propriate bargaining unit under Section 9 of the Act, a
union's attempt to represent workers outside that unit con-
stitutes a failure to bargain. "Once the Board has de-
termined that the Union is not the correct representative of
those employees, it is under a duty to refrain from demand-
ing continued recognition as their representative. Where
the Board's determination is correct, subsequent insistence
upon recognition by the union violates Section 8(b)(3)."
Smith Steel Workers, supra, 420 F.2d at 8. In the instant
case, unlike A. O. Smith, there has been no defiance by
Respondent of the "Board's superior authority":16 The
Board has never determined that as the result of the recent
changed circumstances the drug center clerks and food-
store clerks employed in the disputed stores constitute
either an appropriate or an inappropriate unit or whether
the drug center clerks continue to constitute an appropriate
unit or have become accreted to the Respondent's contrac-
tual unit.
Likewise the court's decision in Sperry Rand, supra, is
distinguishable from the instant situation. There the court
held that the respondent union violated Section 8(b)(3) of
the Act by successfully prosecuting a grievance resulting in
an arbitration award in effect granting the union in that
case, which represented employees of Sperry Rand in New
York, representation rights of certain employees of Sperry
Rand employed at a plant in Vallejo, California, and by
the union's subsequent efforts to enforce that award al-
though those efforts were confined to threats to file further
grievances. In the Sperry Rand case some of the union's
efforts to enforce the arbitration award occurred immedi-
ately after the Board had validly determined that the Valle-
jo employees constituted a separate appropriate unit and
after these employees chose not to be represented by the
union. The respondent union in Sperry Rand, unlike the
Respondent in this case, acted in direct contradiction of a
Board determination. Also, in Sperry Rand, unlike this
case, there was in existence an arbitrators award repugnant
to the policies of the Act which the union was attempting
to compel the employer to implement immediately. Thus,
in that case the time was ripe for the Board to impose its
superior authority and protect the employees statutory
rights.
To recapitulate, when it filed the contractual grievance
upon which the General Counsel bases a claim of unfair
labor practices the Respondent did not act in defiance of
any prior Board determination nor is Respondent attempt-
ing to compel Raley's to implement an arbitrator's award.
This is not a situation where a union 's contractual claim is
solely and simply an effort to obtain from an arbitrator a
ruling inconsistent with either a Board unit clarification
order or other Board determination. Nor is this a situation
where the Respondent is attempting to implement an
arbitrator's award inconsistent with the policies of the Act.
16 See Carey, President of the International Union of Electrical, Radio &
Machine Workers, AFL-CIO v. Westinghouse Electric Corp, 375 U S 261,
271-272
RETAIL CLERKS LOCAL 588 1649
Here, using peaceful means, the grievance-arbitration pro-
cedure, Respondent has tried to have the Employer give
effect to a contract provision. The record establishes that
Respondent filed this grievance in good faith based upon a
contract claim which, under the changed circumstances,
was a reasonable one. Respondent undertook no strike or
other action which would disrupt its bargaining relation-
ship with Raley's and is not trying to implement an
arbitrator's award giving the Respondent representational
rights over employees it does not represent. For all of these
reasons I am of the opinion that the record does not dem-
onstrate by a preponderance of the evidence that the Re-
spondent has refused to bargain within the meaning of Sec-
tion 8(b)(3) of the Act or has violated Section 8(b)(2) and
(1)(A) of the Act as alleged in the amended complaint. Cf.
Carey v. Westinghouse Electric Corp.,17 375 U.S. 261, 271-
272. This conclusion is based in substantial part on the fact
that an important and integral part of our national labor
policy favors the use by parties to a collective-bargaining
agreement of the Agreement's grievance-arbitration ma-
chinery to resolve disputes. Local 174, Teamsters Chauf-
feurs, Warehousemen & Helpers of America v. Lucas Flour
Co., 369 U.S. 95, 105 (1962); also see Section 203(d)
LMRA. This policy must be accommodated to the policies
underlying the Act's several unfair labor practice provi-
sions and, I realize, that at times there may be a conflict.
The A. 0. Smith case is an example of such a conflict
where the Board, as described above, found that the dam-
age done to the parties bargaining relationship and to em-
ployees' statutory rights, on balance, outweighed the statu-
tory policy favoring the parties uninterrupted use of the
contractual grievance procedure, and because of this the
Board imposed its "superior authority." The instant dis-
pute, however, is not yet ripe for the "Board's superior
authority" which can be imposed when, if ever, an arbitra-
tor resolves the dispute in a manner repugnant to the poli-
cies of the Act, and the Union attempts to implement the
award. Then either Raley's, the effected employees, or the
Association, can protect the statutory rights involved by
filing a timely charge with the Board. In other words, the
statutory rights of all of the parties who are concerned
abcut the outcome of this dispute are sufficiently protected
so that the grievance-arbitration machinery should be al-
lowed to run to its conclusion, and the Board should exer-
cise its superior authority only when it becomes necessary.
Based upon the foregoing, I shall recommend that the
amended complaint be dismissed in its entirety. In view of
this it is not necessary to pass on the Respondent's claim of
accretion, but, in the event the Board disagrees with my
above conclusions I shall evaluate the evidence pertaining
to the question of whether, because of changed circum-
stances, the drug center clerks in dispute no longer consti-
tute an appropriate bargaining unit separate and apart
from the food store clerks and have been accreted to the
Respondent's contractual bargaining unit
17 In Carey two disputing unions and an employer were involved in a
dispute in which each union sought the assignment of the disputed work of
the employees One of the unions sued under Section 301 to compel arbitra-
tion of the controversy under the bargaining agreement The Supreme Court
approved generally of the use of the contractual remedies to resolve such
disputes where the Board has not spoken
To support its accretion claim, Respondent relies essen-
tially upon the following changes made by Raley's when it
removed the partitions in the five stores in dispute: (1)
There no longer is a barrier between the food and nonfood
items in the remodeled stores. General merchandise is dis-
played on gondolas directly across or adjacent to food gon-
dolas. The aisles of the foodstore extend into the drug cen-
ter and the dairy cases in all five stores and food fixtures in
one store were moved into or added to the drug center's
selling area; (2) the drug center's separate entrances and
checkout stands have been eliminated and replaced by
common entrances and centralized checkout counters serv-
ing both the drug center and foodstore. What formerly
looked like two separate stores now appears as one store
with common ingress and egress and common checkout
counters, so, customers who now shop in the drug centers
are serviced by food clerks when they checkout their mer-
chandise at the checkout stands; (3) nonfood items in the
food store's selling area were eliminated and now are sold
only in the drug centers and other items were eliminated
from the drug center's selling area and now are only sold in
the foodstore; (4) the drug center clerks and food store
clerks now work in close proximity to each other with full
opportunity for contact and conversation and, as always
has been the case, the foodstore and drug center clerks for
the most part perform similar duties and use the same
skills.18
The foregoing considerations appear material mainly to
the question of whether a combined unit of the drug center
clerks and foodstore clerks would be appropriate for the
purposes of collective bargaining. The question of the ap-
propriateness of the enlarged unit that will result from an
accretion is, of course, always involved where accretion is
in issue. Also involved is whether a finding of accretion
would result in an undue and reasonably avoidable impair-
ment of employees' freedom of choice.) Relevant to this is
the separate unit appropriateness of the employees' group
that would be added to the established unit without a voice
in the matter if accretion is sanctioned. It is to a consider-
ation of this aspect of the case that I now turn.
There can of course be no doubt whatever that the drug
center clerks in dispute formed an appropriate bargaining
unit prior to the time Raley's remodeled the five stores.
These employees were covered by the Association's collec-
tive-bargaining agreement in a unit composed solely of
Raley's drug center clerks. The Association has historically
represented and negotiated bargaining agreements on be-
half of these employees and the five drug centers where
they are employed are a part of the bargaining unit which
was certified by the Board's Regional Director in 1964.
After the five stores were remodeled Raley's continued to
maintain the drug centers at those locations on an indepen-
18 Some drug center clerks who sell cameras, sporting goods, and cosmet-
ics, as previously indicated, need greater skills than normally are associated
with a clerk's fob
19 This consideration is particularly pertinent in the instant case since the
effected employees are currently represented by a labor organization which
has historically represented them Moreover, the employees in three of the
stores in the dispute were among those who selected the Association as their
bargaining representative in the Board-conducted election held in 1964.
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent basis from the foodstores . 20 The managers of the food
stores have no authority over the managers of the drug
centers. The drug center manager is in complete charge of
the day-to-day operations of the drug center . He schedules
the drug center clerks and assigns their work and hires,
fires, and disciplines them without the foodstore manager's
intervention . He also orders merchandise directly for in-
ventory and unlike the foodstore manager fixes the prices
of items for sale. As a result of the independence of the
drug centers there is no interchange or transfer of employ-
ees or supervision between the food stores and drug cen-
ters. And because of the long history of representation by
the Association the drug center clerks' terms and condi-
tions of employment including wages, fringes , seniority,
work rules, etc., differ substantially from the working con-
ditions of the foodstore clerks.
Upon the foregoing facts, I am unable to agree with
Respondent 's contention that as a result of changed cir-
cumstances the drug center clerks in dispute are no longer
part of Raley's drug center bargaining unit embodied in
the current Association Agreement . Although the removal
of the partitions and other related changes have placed the
drug center clerks and foodstore clerks in closer proximity
to each other , the changes have not otherwise impaired the
community of interest shared by the drug center clerks, I
am of the view that all of the factors which I have set forth
above, including the historical bargaining relationship be-
tween the Association and Raley's Drug Centers,21 over-
20 The drug centers now, as in the past , are treated as a separate division
of Raley's Thus , the Employer named in the Board's certification and in the
current agreement between Raley 's and the Association is "Raley's Drug
Centers" not Raley 's or Raley 's Inc Also the drug center clerks are paid by
check which designates the Employer as "Raley 's Drug Center" and which
are drawn on a special drug center account The drug centers and food
markets have separate day-to-day supervision and have a substantially sepa-
rate chain of command within the corporate structure , use different business
forms and follow different merchandising and ordering procedures
21 "The Board has long held that it will not disturb an established bar-
gaining relationship unless required to do so by the dictates of the Act or
other compelling circumstances" The Great Atlantic & Pacific Tea Company,
Inc, 153 NLRB 1549, 1550 ( 1965) Here the whole record fails to establish
whelmingly counterbalance those circumstances which
otherwise militate toward a finding of accretion .22 I find
for these reasons that the drug center clerks involved in this
dispute along with the other drug center clerks in the
Association 's contractual bargaining unit constituted an
appropriate bargaining unit at all times material herein and
that under these circumstances it would have been improp-
er for Raley 's, absent the consent of the drug center clerks,
to have extended Respondent 's contract to cover these
clerks under the guise of accretion . Melbet Jewelry Co., su-
pra, 109-110.
Upon the foregoing findings of fact and the entire rec-
ord, I make the following:
CONCLUSIONS OF LAW
1. Raley's Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and it
will effectuate the purposes of the Act to assert jurisdiction
herein.
2. Retail Clerks Local 588, Retail Clerks International
Association , AFL-CIO, the Respondent , is a labor organi-
zation within the meaning of Section 2(5) of the Act, and at
all times material herein has been , and is, the exclusive
representative of all the employees in the bargaining unit
described in this Decision for the purpose of collective bar-
gaining with respect to wages, rates of pay, hours of em-
ployment, or other conditions of employment.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(b)(3), (1)(A), and (2) of the
Act.
[Recommended Order for dismissal omitted from publi-
cation ]
either a statutory reason or "other compelling reason" to disturb Raley's
established bargaining relationship with the Association at the five stores
involved in this dispute
22 The cases of Gerbes Super Markets, Inc, 176 NLRB 11 (1969), and
Safeway Stores, Incorporated, 175 NLRB 875 ( 1969), relied on by Respon-
dent in support of a contrary finding are distinguishable on their facts