Rock Springs Retail Merchants Association

National Labor Relations Board - Board Decisions

Jan 29, 1971

188 N.L.R.B. 261 (N.L.R.B. 1971)

ROCK SPRINGS RETAIL MERCHANTS ASSN. 261
Rock Springs Retail Merchants Association and Retail
Clerks International Association, Local 102, AFL-
CIO, Petitioner . Case 27-RC-3877
January 29, 1971
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, BROWN , AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held at Rock Springs, Wyoming, before Allison
E. Nutt, Hearing Officer of the National Labor Rela-
tions Board.' Following the hearing and pursuant to
Section 102.67 of the Board's Rules and Regulations
and Statements of Procedure, Series 8 , as amended,
the Regional Director for Region 27 transferred this
case to the Board for decision. A brief has been filed
with the Board by Petitioner.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
4. Petitioner in its original petition sought a unit
consisting of all employees employed by 31 named
members of the Association,' excluding meat depart-
ment employees and statutory exclusions. Petitioner,
at the hearing and in its brief, alternatively seeks a
unit limited to the employees of the five member-
employers who actually signed a 1968 collective-bar-
gaining agreement with District 50,3 with the same
' International Union of District 50, Allied and Technical Workers, herein
called District 50, had a collective -bargaining agreement with certain mem-
ber-employers of the Association which expired on June 30 , 1970. Although
duly served with notice of hearing , District 50 did not enter an appearance
at the hearing or otherwise express interest in continuing to represent em-
plo2yees employed by member-employers within the appropriate unit.
Prior to the hearing , the Regional Director ascertained that 12 of the 43
employers named in the petition were not part of the multiemployer bargain-
mp group and dismissed the petition as it applied to them.
The five signatories to the 1968 agreement are C A. West Company, F.
W. Woolworth , Union Merchantile & Supply Co., Del Duce Drug , Inc, and
Safeway Store , Incorporated . All are retail merchants doing business in Rock
Springs.
exclusions as above. That limited unit was earlier
sought by Petitioner in Case 27-RC-3844, decided
June 5, 1970.4 The parties have stipulated that the
record in that proceeding be made a part of the record
in the instant proceeding. The Employer's position is
that the only appropriate unit is one encompassing all
of the remaining 31 member-employers.
The Employer is an informal association of over 40
retail merchants doing business in Rock Springs, Wy-
oming. There are no formal documents setting forth
requirements or obligations of membership, which is
open to any retailer in Rock Springs. The Association
does not collect dues or fees and it has no officers
other than a chairman. The chairman of the Associa-
tion, presently LeRoy Russell, is designated by the
Rock Springs Chamber of Commerce. Russell is also
a member of the chamber's board of directors. How-
ever, it was stated that chamber of commerce mem-
bership is not a prerequisite to membership in the
Association.
TheAssociation sponsors various communitywide
merchandising programs and, through committees,
has for many years negotiated collective-bargaining
agreements. There is no evidence in the record estab-
lishing that association members agree in advance to.
be bound by the results of the Association's bargain-
ing. In this regard, Chairman Russell, himself the
manager of a retail shoe store, testified that he had not
seen the most recent collective-bargaining agreement
until after it had expired and that he did not consider
himself, as an employer-member of the Association,
bound to the agreement as he did not sign it. The only
member-employers to sign the 1968 agreement with
District 50 were the five employers who actually nego-
tiated the agreement.' Moreover, only these same five
employers have consistently participated in negotia-
tions for, and have subsequently signed bargaining
agreements with, District 50 throughout the 1960's.
There is no evidence that nonsigners were regularly
asked to sign or were provided with copies of the
agreements, although various association members
have sporadically signed agreements prior to the 1968
agreement.
We have often addressed ourselves to the standard
to be applied in assessing the existence of a multiem-
ployer bargaining unit. Whether such a unit functions
within the framework of an association or under an
informal understanding between otherwise unrelated
employers, the Board looks for sufficient indication
from the history of the bargaining relationship be-
tween the employers and the union of intent to be
The Regional Director in that case dismissed the petition , finding, in part,
that there was insufficient evidence to determine the scope of any possibly
appropriate multiemployer unit
The 1968 agreement states, in its preamble , that it is entered into by "the
undersigned Retail Merchants of Rock Springs ... " and District 50.
188 NLRB No. 41
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
governed by joint action .6 It is clear from the forego-
ing recital of the facts in this case that an association-
wide unit does not exist, and that only the five
signatories to the 1968 agreement have manifested, by
their past and current participation in negotiations
and their mutual acknowledgement of the agreement,
an unequivocal intention to be bound by group rather
than individual bargaining . On the other hand, the
nonsignatory members of the Association apparently
considered the agreement produced by the efforts of
the five signatories to be no more than a convenience
and binding upon them only after individual post hoc
examination . By their behavior , it appears that the
nonsignatories did not agree , at the outset, to be
bound by the bargaining results of the negotiating
committee and have not since executed the "group"
agreement with sufficient regularity to permit an in-
ference of intent to be bound . Accordingly , as alterna-
tively requested by Petitioner, we shall direct an
election in a multiemployer unit comprised of the em-
ployees of the five employers who signed the 1968 and
earlier agreements , as to whom we find that a true
6 See Weyerhaeuser Company, 166 NLRB 299, 300 ; The Kroger Co, 148
NLRB 569; Van Eerden Company, etc., 154 NLRB 496. See, also , Council of
Bagel and Bialy Bakeries, et al , 175 NLRB No. 148
multiemployer group has been established.
On the basis of the foregoing and the entire record
in this case, we find the following employees consti-
tute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All employees of C. A. West Company, F. W.
Woolworth, Union Mercantile & Supply Co.,
Del Duce Drug, Inc., and Safeway Stores, Incor-
porated, Rock Springs, Wyoming, excluding
meat department employees , store managers, su-
pervisors , guards , and watchmen as defined in
the Act.
[Direction of Election 7 8 omitted from publication.]
7 In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote , all parties
to the election should have access to a list of voters and their addresses which
may be used to communicate with them . Excelsior Underwear Inc., 156
NLRB 1236; N. LR B v. Wyman -Gordon Co., 394 U . S. 759 . Accordingly, it
is hereby directed that an election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer with the
Regional Director for Region 27 within 7 days of the date of this Decision
and Direction of Election. The Regional Director shall make the list available
to all parties to the election . No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside the
election whenever proper objections are filed.
6 Unless Distract 50 makes application to the Regional Director for Region
27 within 10 days from the date of this Decision , we shall not accord District
50 a place on the ballot