Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

May 7, 1969

175 N.L.R.B. 875 (N.L.R.B. 1969)

SAFEWAY STORES, INC. 875
Safeway Stores , Incorporated ' and Retail Clerks
Union Local No. 455 , affiliated with Retail Clerks
International Association , AFL-CIO.' Case
23-CA-2891
May 7, 1969
DECISION AND ORDER
On February 26, 1968, Trial Examiner Charles
W. Schneider issued his Decision in the
above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair
labor practices 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 to
the Trial Examiner's Decision and a supporting
brief.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner,
including those disposing of General Counsel's
Motion for Judgment on the Pleadings and
Respondent's response to the Trial Examiner's
Order to Show Cause, and finds that no prejudicial
error was committed.
The Board has considered the Trial Examiner's
Decision, the exceptions, brief, and the entire record
in this case, and, for the reasons set forth below,
finds limited merit in Respondent's exceptions. The
Board therefore adopts the findings, conclusions,
and recommendations of the Trial Examiner, only
to the extent consistent with this Decision and
Order.
As set out more !Fully in the Trial Examiner's
Decision, Respondent and the Union have an
established bargaining relationship covering a
multi-store unit of all retail clerks employed at
Respondent's Austin, Texas, retail food stores. At
the time of the events which gave rise to the
underlying representation proceeding here, there was
in effect a contract between Respondent and the
Union, dated April 27, 1964, and running until
April 2, 1967. The contract's recognition clause
described the unit as follows:
The Employer hereby recognizes the Union as
the sole collective-bargaining agent for all regular
full-time and regular part-time employees working
for the Employer in stores located in Austin,
Texas, excluding meat department employees,
managers, assistant managers, package boys,
watchmen, guards, and supervisors ....
' Herein called Respondent or the Employer.
'Herein called the Union.
During the term of that contract, Respondent added
a nonfood department (i.e., one in which such items
as drugs, cosmetics, and jewelry are sold) in one of
its established stores, and it opened two new stores
with a nonfood department and a snackbar in each.
Following the establishment of these additional
operations, the Union requested Respondent to
extend its contract to all the clerks hired or assigned
by Respondent to staff these operations, claiming
that all these employees were an accretion to the
existing contractual unit. Respondent granted this
request only in part.
It refused to accede to so much of the Union's
request as sought the inclusion of nonfood and
snackbar employees unless and until the Union first
furnished specific evidence that these employees had
designated the Union as their representative.
Respondent disputed the Union's accretion claim as
to these employees on the ground That it did not
have any nonfood departments or snackbars in any
of its stores at the time the aforementioned 1964
contract was executed, and asserted also that the
work of the disputed employees was different from
that of the clerks. Despite extended discussion of the
matter, the parties were unable to resolve their
differences about the unit placement of these
employees. Thereafter, Respondent filed with the
Board a petition for an election among the snackbar
and nonfood employees (Case 23-RM-193); and the
Union, in turn, filed a unit clarification petition
seeking the Board's determination that the disputed
employees were in fact an "accretion" to the
established contract unit. (Case 23-UC-20.)
After consolidating the two cases for hearing, the
Acting Regional Director issued a Decision and
Clarification of Bargaining Unit and Order in which
he found that the snackbar and nonfood employees
were an accretion to the existing contractual unit.
He therefore granted the Union's petition for
clarification and dismissed the Employer's RM
petition. The Employer requested the Board to
review the Decision, but the Board declined on the
ground that the request raised no substantial issue
warranting review. Respondent nonetheless refused
and continues to refuse to recognize the Union as
the representative of the snackbar and nonfood
employees, and this refusal gave rise to the unfair
labor practice charge and complaint in the instant
proceeding. The Trial Examiner found, as alleged in
the complaint, that Respondent had engaged and
was engaging in violations of Section 8(a)(5) and (1)
of the Act by reason of its aforesaid refusal.
Respondent's exceptions in this proceeding assert,
as did its request for review in the underlying
representation case, that the Acting Regional
Director improperly applied the Board's accretion
doctrine in determining that the disputed employees
were appropriately part of the contract unit of store
clerks without first ascertaining the representation
desires of such employees in a sell -determination
election. Respondent contends that the Board's
175 NLRB No. 146
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denial of the request for review is inconsistent with
the Board's finding in Food Employers Council,
Inc., 163 NLRB No. 58.' In that case, the Board
held that the operators of retail food stores similar
to those here involved had violated Section 8(a)(2)
of the Act by "accreting" the employees of newly
established snackbar operations to the contract unit
of store clerks represented by the Retail Clerks. The
Board rested its decision on findings that the
snackbar employees were engaged in a type of work
different from that performed by the store clerks;
had some differences in working conditions; enjoyed
a community of interest apart from the store clerks;
and therefore constituted a separate and distinct
operation from the existing clerks unit rather than
an accretion to that unit. The Board accordingly
concluded that the employers' extension of the
Retail Clerks' contract to the snackbar employees at
a time when Retail Clerks had not established its
majority status among them unlawfully infringed
upon the right of the snackbar employees to express
a free choice of their bargaining representative.
As a comparison shows, the duties and working
conditions of the snackbar employees in this case
are substantially the same as those of the snackbar
employees in Food Employers Council. As in Food
Employers Council, the snackbars are operated
apart from the food store checking area and have
separate registers. The snackbar employees perform
a different type of work from that performed by the
represented store clerks. There is no interchange
between snackbar employees and store clerks.
Moreover, the starting rate of pay for snackbar
employees appears to differ from that of the
represented store clerks, and they work under the
general direction of a snackbar manager who has no
authority over the represented employees. On the
issue of accretion, this case thus appears
indistinguishable from Food Employers Council."
Accordingly, after full consideration, the Board
now finds that it erred in allowing the snackbar
employees to be accreted to the existing contract
unit.' It follows that Respondent was justified in
refusing to recognize the Union as the representative
of the snackbar employees in the absence of
independent proof that a majority of these
employees desired the Union as their representative.
We conclude, accordingly, that Respondent did not
violate Section 8(a)(5) and (1) of the Act by refusing
to recognize and bargain with the Union as the
representative of its snackbar employees.
'At a date subsequent to the filing of the exceptions herein , the Ninth
Circuit Court of Appeals handed down its decision enforcing the Board's
Order in that case N L R B v Food Employers Council, Inc., 399 F 2d
501
'See also Piggly Wiggly California Company, 144 NLRB 708; The Boy's
Market, Inc, 156 NLRB 105.
'Unlike our dissenting colleague, we can attach no significance to the
fact that no other union seeks to represent these employees . Indeed, a
careful reading of Food Employers reveals that no such distinction is
warranted Thus, in that case, although the Board noted the presence of a
"rival" union , it ultimately explicated its findings and conclusions only on
those facts enumerated herein Additionally , we cannot place any reliance
We reject as without merit, however, that part of
Respondent's exceptions which questions the
application of the accretion doctrine to the
non-foods department clerks. These clerks are
assigned mainly to the stacking of non-foods items
such as drugs and cosmetics on several aisles
adjacent to, and looking exactly alike, all other
aisles in Respondent's stores. Apart from the
merchandise handled, the work of the nonfood
clerks, as well as their general conditions of
employment, are indistinguishable from those of the
represented store clerks. We find, accordingly, that
the Respondent's refusal to bargain with the Union
as the representative of these employees is in
violation of section 8(a)(5) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Safeway Stores, Incorporated, Austin, Texas, its
officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail
Clerks Union, Local No. 455, affiliated with Retail
Clerks International Association, AFL-CIO, as the
exclusive collective-bargaining representative of
employees in the following appropriate unit:
All regular full-time and regular part-time
employees including nonfood department
employees employed at its Austin, Texas stores,
excluding all meat department employees,
snackbar employees, store managers, assistant
store managers, nonfood managers, package boys,
watchmen, guards, and supervisors as defined in
the Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Retail
Clerks Union, Local No. 455, affiliated with Retail
Clerks International Association, AFL-CIO, as the
exclusive representative of the employees in the
above-described appropriate unit with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, and embody in
a signed agreement any understanding reached.
(b) Post at its Austin, Texas stores, copies of the
attached notice marked "Appendix." Copies of said
notice, on forms to be provided by the Regional
Director for Region 23, after being duly signed by
an authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
on the fact that Respondent recognized the Retail Clerks as bargaining
representative for some snackbar employees at its Dallas operations in the
absence of evidence - lacking here - as to the circumstances under which
such recognition was granted
'In the event that the Board 's Order is enforced by a decree of a United
SAFEWAY STORES, INC.
posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this Order,
what steps it has taken to comply herewith.
MEMBER BROWN, dissenting in part:
Unlike my colleagues, I do not believe that Food
Employers Council, supra, requires reversing the
original determination in the present case that
snackbar employees were properly accreted to the
existing contractual unit. In Food Employers
Council the court of appeals found "considerable
eridence that snackbar employees do share a certain
community of interest' with the employees
represented by the respondent union", and held only
that the Board did not abuse its discretion in that
proceeding (399 F.2d 501, 505). The record in the
present case establishes that Respondent has in fact
extended its Dallas, Texas, contract with another
Retail Clerks' local to snackbar employees; that
snackbar and other employees are paid a similar
wage scale, work common hours, and participate in
the same company benefit programs; and that all
employees are under the overall supervision of the
store manager. In Food Employers Council,
moreover, snackbar employees of some employer
members of the Council were represented by another
union (Joint Board or Local 694), and the Retail
clerks' own contract in that case expressly excluded
those culinary employees who were represented by
the Joint Board or Local 694. There is no such
contractual exclusion in the present case, and no
other union claims or even seeks to represent the
snackbar employees under consideration here.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Retail Clerks Union Local No. 455, affiliated with
Retail Clerks International Association , AFL-CIO, as
the exclusive collective-bargaining representative of all
our following employees:
All regular full -time and regular part-time employees
including nonfood department employees employed at
the Austin , Texas, stores , excluding all meat
department employees , snackbar employees, store
managers , assistant store managers , nonfood
managers , package boys, watchmen, guards, and
supervisors as defined in the Act, as amended.
WE WILL upon request bargain collectively with the
above-named Union as exclusive bargaining
representative of the employees in the above -described
States Court of Appeals, the words "a Decree of the United States Court
of Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
877
unit and if an understanding is reached we will sign a
contract with the Union.
Dated By
SAFEWAY STORES,
INCORPORATED
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building , 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-228-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
CHARLES W. SCHNEIDER, Trial Examiner: The
Respondent is Safeway Stores, Incorporated; the Union is
Retail Clerks Union Local No. 455, affiliated with Retail
Clerks International Association, AFL-CIO.
On April 27, 1964, the Respondent and the Union
executed a collective bargaining agreement expiring on
April 2, 1967, covering certain employees in the
Respondent's stores located in Austin, Texas. Subsequent
to the execution of the contract, and during its term, the
Respondent established snackbars and/or nonfood
departments at several of its stores in Austin. The
Respondent and the Union being unable to agree
concerning the representation of the employees involved in
the additional operations, representation petitions were
filed with the Regional Director by the Respondent and
the Union in August 1967. The Respondent's petition
(Case 23-RM-193) requested a separate bargaining unit
for the snackbar and nonfood department employees. The
Union's petition (Case 23-UC-20) sought to have the
existing contract unit clarified to include the snackbar and
nonfood department employees. The Respondent
requested an election among the snackbar and nonfood
department employees.
Upon these petitions a consolidated hearing was held,
on the record of which the Acting Regional Director on
October 6, 1967, issued a Decision and Clarification of
Bargaining Unit and Order. In this Decision the Acting
Regional Director found that the snackbar and nonfood
department employees were an accretion to the
contractual unit, were not a separate and distinct group,
and were integrated with the remainder of the
Respondent's Austin operations. The Acting Regional
Director accordingly found that there was no question of
representation concerning those employees and dismissed
the Respondent's petition in Case 23-RM-193. He further
ordered the contractually recognized unit to be clarified as
set out hereinafter in section III to reflect addition of the
snackbar and nonfood department employees.
Thereafter the Respondent filed with the Board in
Washington, D.C., a Request for Review of the Acting
'Administrative or official notice is taken of the representation
proceedings , Cases 23-RM - 193, 23-RM -200, and 23 -UC-20. See Sec. 9(d)
of the National Labor Relations Act.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director 's Decision , to which Request the Union
filed a Statement in Opposition. On November 9, 1967,
the Board denied the Respondent ' s Request for Review on
the ground that it " raises no substantial issues warranting
review."
The Complaint Case
The Respondent thereafter declining to recognize the
Union as the representative of the snackbar and nonfood
department employees, the Union filed an unfair labor
practice charge upon which the Regional Director issued a
complaint on December 28, 1967, alleging that the
Respondent had refused to bargain upon request with the
Union in the unit as clarified by the Acting Regional
Director . In due course the Respondent filed its answer in
which it admitted most of the allegations of the
complaint, but denied others. Specifically the
Respondent ' s Answer admitted the jurisdictional
allegations of the complaint , the status of the Union,
actions of the Acting Regional Director and the Board
recited above , and the Respondent ' s refusal to bargain
with the Union in the clarified unit following the action of
the Acting Regional Director and the Board . However,
the Respondent denied that the unit as clarified by the
Regional Director and alleged in the complaint is an
appropriate unit, and further denied that the Union is the
representative of the employees therein . Accordingly, the
Respondent also denied that its refusal to bargain in such
unit constituted an unfair labor practice.
Thereafter the General Counsel filed a Motion for
Judgment on the Pleadings . On January 24, 1968 , I issued
an Order to Show Cause on the General Counsel's
Motion, in which the parties were directed to show cause,
if any, on or before February 9, 1968, as to whether or
not the Motion should be granted.
On February 8, 1968, the General Counsel, and on
February 9, 1968, the Respondent, filed responses to the
Order to Show Cause, the Respondent's in the nature of a
brief. The Respondent also forwarded a copy of its first
original amended answer filed with the Regional Director
on February 8, 1968. Along with its brief the Respondent
also filed three additional motions, the gist of which are
as follows : ( 1) to dismiss the complaint on the ground that
the Decision and Order clarifying the unit is void because
in excess of statutory authority, and requesting leave to
file a brief developing that point at length; (2) to
consolidate the motion to dismiss with the motion for
judgment on the pleadings , and (3 ) to abate the unfair
labor practice proceeding pending disposition of a second
petition for an election among the snackbar and nonfood
employees which the Respondent filed with the Regional
Director on February 8, 1968 (Case 23-RM-200).
The motion to consolidate the motion to dismiss with
the motion for judgment on the pleadings is granted. The
other motions are denied for the following reasons:
The motion to dismiss raises one of the same basic
issues raised in the representation cases and by the
pleadings and other motions in the unfair labor practice
case, namely , whether the Regional Director should have
ordered an election and whether he properly included the
disputed employees in the contractual unit, and whether
these issues were finally decided in the representation case.
Opportunity to file a brief on all matters at issue was
afforded by the Order to Show Cause on the Motion for
judgment on the Pleadings . No ground is disclosed for
not having argued fully in the brief filed in response to
that order all matters at issue . As to the motion to abate
because of the pendency of the representation petition in
Case 23-RM-200, I am administratively advised that this
petition was dismissed by the Regional Director on
February 16, 1968. The motion in this respect is therefore
moot.
Ruling on Motion for Judgment on the Pleadings
The Respondent contends that the Union has never
presented evidence that it represents the snackbar and
nonfood employees , that the Union has never been validly
certified as their collective bargaining representative, and
that there is no statutory authority for the procedure of
clarifying an uncertified bargaining unit by adding
employees thereto without an election.
However, the Respondent 's contentions as to whether
an election should be held or the unit clarified instead
were decided by the Acting Regional Director in the
representation proceeding , and review of that decision was
denied by the Board . So far as the authority of the Trial
Examiner is concerned , the issues were thus finally
decided there . It is established Board policy, in the
absence of newly discovered or previously unavailable
evidence or special circumstances not to permit litigation
before a Trial Examiner in a complaint case of issues
which were or could have been litigated in a prior related
representation proceeding .' No newly discovered or
previously unavailable evidence or special circumstances
are asserted here by the Respondent.
The refusal to bargain being conceded, there is no issue
litigable before a Trial Examiner , and therefore no matter
requiring hearing . The motion for judgment on the
pleadings is consequently granted, and I hereby make the
following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is now , and has been at all times material
herein, a Maryland corporation with its principal office
located in Oakland, California, and is engaged in the
operation of retail stores in several cities in the State of
Texas , including its Austin , Texas retail stores which are
the only ones involved in this proceeding.
During the past 12 months, a representative period,
Respondent in the regular course and conduct of its
business operations derived gross revenues in excess of
$500,000 from its retail sales, and during the same period
of time purchased and had delivered directly to its Texas
retail stores from points outside the State of Texas, goods
valued in excess of $50,000.
Respondent is now , and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is now , and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
'Macomb Pottery Company , 157 NLRB 1616, 376 F.2d 450 (C.A. 7,
1967); Howard Johnson Company, 164 NLRB No. 121; Metropolitan Life
Insurance Company, 163 NLRB No. 71. See Pittsburgh Plate Glass Co.
v. N.L.RB , 313 U.S 146 , 162 (1941 ); Rules and Regulations and
Statements of Procedure , National Labor Relations Board , Senes 8, as
revised January 1 , 1965, section 102.67 (f), 102.69(c).
SAFEWAY STORES, INC. 879
M. THE UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All regular full-time and regular part-time employees
including snackbar employees and nonfood employees
employed at the Austin, Texas stores, located at 6825
Burnett Road, 2025 West Ben White Boulevard, and
1109 Interregional Road; excluding all meat department
employees, store managers, assistant store managers,
nonfood managers, package boys, watchmen, guards,
and supervisors as defined in the Act, as amended.
At all times since October 6, 1967, the Union has been
the representative for the purposes of collective bargaining
of all employees in the appropriate unit, and, by virtue of
Section 9(a) of the Act has been and is now the exclusive
representative of all employees in said unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
Commencing on or about November 20, 1967, and
continuing to date, the Union has requested, and is
requesting, Respondent to bargain collectively with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit.
Commencing on or about November 20, 1967, and at
all times thereafter, Respondent did refuse, and continues
to refuse, to bargain collectively with the Union as the
exclusive bargaining representative of all the employees in
the appropriate unit.
By such action the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) of the Act
and has interfered with, restrained and coerced its
employees in violation of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]