Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 944 (N.L.R.B. 1985)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safeway Stores, Inc. and Amalgamated Meat Cut- ORDER
ters and Allied Workers Union of Hawaii
United Food and Commercial Workers, Local 480
and Amalgamated 'Meat Cutters and Allied
Workers Union of -Hawaii . Cases 37-CA-2091
and 37-CB-553
30 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 14 December 1984 Administrative Law
Judge Michael D. Stevenson issued ' the attached
decision. The Respondent Union filed exceptions in
which the Respondent Employer joined. The Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to, a three-
member panel.
The Board has considered,-the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended Order
as modified.3
i We correct two factual errors
In see , II1,B,l,a,(2), par 1, of his decision , the judge erroneously stated
that a single representation election was conducted for the Respondent
Employer 's three Oahu Island , Hawaii stores When the 26 November
1963 election was held, however, the Employer had only one store oper-
ating on Oahu Island
In sec III,B ,I,a,(6), par 3, the judge erroneously stated that no formal
grievances had been filed at the Employer' s Maui Island store In fact,
the Respondent Union brought at least two grievances to the district
manager's attention , one of which proceeded to-arbitration That the dis-
trict manager rather than the store manager was involved in adjusting
these grievances is relevant in determining whether the Employer's Maul
store was accreted to an existing bargaining unit In light of the other
factors the j udge relied on, however, we agree there has been no accre-
tion here
2 In adopting the judge's conclusion that the Respondent Employer
unlawfully assisted the Respondent Union by allowing the Union to use
its Maui Island store facilities to solicit union membership , we emphasize
that the Employer had already unlawfully recognized the Union , thus fa-
cilitating its access to the store and giving union representatives the op-
portunity to tell employees the Union already represented them Contrast
Jolog Sportswear, 128 NLRB 886 (1960) (neutral employer's having grant-
ed union access to employees in order to solicit union membership, with-
out more, does not constitute unlawful assistance ), petition for review dis-
missed sub nom Kimbrell v NLRB, 290 F 2d 799 (4th Cir 1961)
We find it unnecessary to pass on the judge 's citations to and discus-
sion of Kroger Co, 219 NLRB 388 (1975), and Retail Clerks Local 870
(White Front Stores), 192 NLRB 240 (1971), in sec III,B,I,b, par 2 and
fn' 18. of his decision
a The judge found the Respondent Employer violated Sec 8(a)(3) and
(1) by entering into a collective- bargaining agreement containing a union-
security clause at a time when the Respondent Union did not represent a
majority of unit employees The clause required as a condition of em-
ployment that employees who were members of the Union remain mem-
bers and that those who were not members on their 31st day of employ-
ment become members The judge also found the Employer violated Sec
8(a)(3) and ( 1) by deducting union dues from its Maui Island store em-
ployees' wages and the Union violated Sec 8(b)(2) by . actually or con-
structively receiving those dues The judge, however, inadvertently omit-
ted provisions consistent with his findings - from his recommended Order
and notices -
The National Labor Relations -Board adopts the
recommended Order of the administrative 'law
judge as modified below and orders that
A. Respondent Safeway Stores, Inc., Kahului,
Hawaii , its officers , agents , successors, and assigns,
shall take the action set forth in the Order as modi-
fied. - -
1. Insert the following as-paragraph 1(c) and re-
letter the subsequent paragraphs.
"(c) Requiring as a condition of employment that
its Maui Island , Hawaii store employees who are
members of Respondent United Food and Com-
mercial Workers, Local 480 remain members and
that those who are not members on their-31st day
of employment become members; and deducting
union dues for the Respondent Union for those of
its Maui store employees who were not union
members before they transferred to, or otherwise
commenced work at, that store."
2. Substitute the following for paragraph 2(b).
"(b) Jointly and severally with Respondent
United Food and Commercial Workers, Local 480
reimburse all its former and present Maui Island,
Hawaii store employees , except those who were
union members before they transferred to, or other-
wise commenced work at, that store, for all initi-
ation fees, dues, or other moneys, if any, paid by or
withheld from them under contract with the Re-
spondent Union in the manner otherwise set forth
in the- remedy section of the judge's decision."
3. Substitute the attached notice to employees
(Appendix A) for that of the administrative law,
judge.
B. Respondent United Food and Commercial
Workers, Local 480, Honolulu, Hawaii, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 1(b) and re-
letter the subsequent paragraphs.
"(b) Actually or constructively receiving dues
Respondent Safeway Stores, Inc. has deducted
from the wages of those of its Maui Island, Hawaii
The finding that employees were coerced to support the Respondent
Union rests solely on the parties having entered a collective -bargaining
agreement , the agreement's union -security provisions, and the Union's
references to these provisions in speaking with employees Absent other
evidence of coercion , the judge 's recommended remedy and Order re-
quiring the Employer and the Union to reimburse employees must'be
amended to exclude those employees who were union members before
they transferred to, or otherwise commenced work at, the Employer's
Maui store Baines Service Systems, 248 NLRB 563 fn. 2 (1980), see Car-
penters Local 60 v. NLRB, 365 U S 651, 655-656 (1961)
Accordingly , we shall amend the Order and issue new notices to em-
ployees and members
In the posting paragraphs and in pars A,2,(f) and B , 2,(d) of his recom-
mended Order , the judge erroneously referred to Subregion 37, rather
than Region 20 We correct these inadvertent errors
- 276 NLRB No. 99
SAFEWAY STORES
store employees who were not union members
before they transferred to, or otherwise com-
menced work at, that store."
2. Substitute the following for paragraph 2(a).
"(a) Jointly and severally - with Respondent
Safeway Stores , Inc. reimburse all former and
present Safeway Stores ' Maui Island , Hawaii store
employees , except those who were union members
before they transferred to, or otherwise com-
menced work at, that store , for all initiation fees,
dues, or other moneys , if any , paid by or withheld
from them under contract with the Respondent
Employer in the manner otherwise set forth in the
remedy section of the judge 's decision."
3. Substitute the attached notice to employees
and members (Appendix B) for that of the adminis-
trative law judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United- States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT give unlawful assistance and sup-
port to United ` Food and Commercial Workers,
Local - 480, or any other labor organization, by
making our breakroom available for union,repre-
sentatives to solicit union membership and health
and .welfare plan applications after having unlaw-
fully recognized that labor organization as the col-
lective-bargaining representative of our Maui
Island, Hawaii store employees , and after providing
union representatives the opportunity to tell those
employees it already represented them.
WE WILL NOT assist and contribute support to
United Food and Commercial Workers , Local 480
by recognizing or bargaining with that labor orga-
nization concerning our Maui Island , Hawaii store
employees unless and until it has been certified by
the National Labor Relations Board as . the exclu-
sive bargaining representative of those . employees.
WE WILL NOT require as a condition of employ-
ment -that our Maui Island, Hawaii store employees
who are members of United Food and Commercial
Workers , Local 480 remain members and those
who are not members on their 31st day of employ-
ment become members and WE WILL NOT deduct
union dues for that labor organization from the
wages of those of our Maui store employees who
were not union members before they transferred to,
or otherwise commenced work at, that store. -
945
WE WILL NOT at our Maui Island , Hawaii store
give effect to, perform , or in any way enforce the
collective-bargaining agreement , or any modifica-
tions , extensions , or renewals thereof, or any other
contract , agreement , or understanding concerning
our Maui store, entered into with United Food and
Commercial Workers , Local 480, or any successor
thereto ; provided , however , that nothing herein
shall require us to vary or abandon any wage in-
crease or other benefits , terms, and conditions of
employment which we have established in per-
formance of that agreement.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL withdraw and withhold all recognition
from United Food and Commercial Workers,
Local 480 as the collective-bargaining representa-
tive of our Maui -Island , Hawaii store employees
unless and until that labor organization has been
certified by the National Labor Relations Board as
the exclusive bargaining representative of those
employees.
WE WILL jointly and severally with United Food
and Commercial Workers, Local 480 reimburse all
our present and former Maui Island , Hawaii store
employees , except those who were union members
before they transferred to, or otherwise com-
menced work at, that store , for all initiation fees,
dues, or other moneys , if any , paid by or withheld
from them under our contract with that labor orga-
nization, together with interest. -
SAFEWAY STORES, INC.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us -to post and abide by this notice.
WE WILL NOT receive unlawful assistance and
support from Safeway Stores, Inc. by its making its
breakroom available for our representatives to so-
licit union membership and health and welfare plan
applications after having unlawfully recognized us
as the collective-bargaining representative of its
Maui Island , Hawaii store employees,- and after
providing - our representatives the opportunity to
tell those employees we already represent them.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT actually or constructively receive
dues Safeway Stores has deducted from the wages
of those of its Maui Island, Hawaii store employees
who were not union members before transferring
to, or otherwise commencing work at, that store.
WE WILL NOT at Safeway Stores' Maui Island,
Hawaii store give effect to, perform, or in anyway
enforce our collective-bargaining agreement with
Safeway Stores or any modifications, extensions, or
renewals thereof.
WE WILL NOT act as the collective-bargaining
representative of Safeway Stores' Maui Island,
Hawaii store employees unless and until we have
been certified as their exclusive representative by
the National Labor Relations Board.
WE WILL NOT impliedly threaten - Safeway
Stores' Maui Island, Hawaii store employees that
they will lose their jobs if they do not join our
Union.
WE WILL NOT in any like or related manner re-
strain or -coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL jointly . and severally with Safeway
Stores reimburse all former and present Safeway
Stores' Maui Island, Hawaii store employees,
except those who were union members before they
transferred to, or otherwise commenced work at,
that store, for all initiation fees, dues, or other
moneys, if any, paid by or withheld from them
under - our contract with Safeway Stores, together
with interest.
UNITED FOOD AND COMMERCIAL.-
WORKERS , LOCAL 480
Carmen Plaza de Jennings, Esq,, of San Francisco, Cali-
fornia, for the General Counsel.
Gregory M. Sato, Esq. (Torkildson, Katz, Jossem & Fon-
seca), of Honolulu, Hawaii, for the Employer Safeway
Stores, Inc.
Randall Harakal, Esq., of Honolulu, Hawaii, for the
Union.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Honolulu, Hawaii, on
July 18, 19, and 20, 1984,1 pursuant to an order consoli-
dating cases , consolidated complaint and notice of hear-
ing2 issued by the Regional Director for the National
Labor Relations Board for Region 37 on February 15,
1984, and which is based on charges, filed by Amalga-
mated Meat Cutters &-Allied Workers Union of Hawaii
(Charging Party) on October 13. The complaint alleges
that Safeway Stores, Inc. (the Employer or Safeway) has
engaged in certain violations of Section 8(a)(1), (2), and
(3) of the National Labor Relations Act. -
The complaint also alleges that Respondent • United
Food & Commercial Workers Local 480 (the Union) has
engaged in certain violations of Section 8(b)(1)(A) and
(2) of the Act.
Issues
(1) Whether Employer, knowing that the Union did
not represent -a , majority of unit employees at its,Maui
store, committed one or more of .the following acts, the
result of which was to unlawfully encourage its. Maui
employees to join, support, or assist the Union:
(a) Recognized the Union at its Maui store.
(b) Agreed to and executed a collective-bargaining
agreement with the Union purporting to cover a unit of
employees at Employer's Maui store.
(c) Deducted union dues from Maui employee wages
without first obtaining valid, voluntary dues authoriza-
tion cards.
(d) Permitted union agents to utilize Employer's facili-
ties for union, organizing activities.
(2) Whether the Union received unlawful aid, assist-
ance, and support from Employer..
(a) By receiving and retaining dues moneys unlawfully
deducted from wages of Employer's Maui employees.
(b) By utilizing Employer's facilities with the latter's
permission for union activities.
• Whether union agents threatened Safeway Maui em-
ployees with discharge unless they signed union authori-
zation cards and union dues-deduction authorization
cards.,
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses, to-argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Employer.3 ' _
On the entire record of the case, • and from my obser-
vation. of the witnesses and their demeanor, I make .the
following. ,
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Both V Respondents admit that the Employer is a Mary-
land corporation which operates a retail food business
and With stores located in Honolulu (Oahu), Hilo
(Hawaii), and Kahului (Maui), State of Hawaii. They fur-
ther admit that during the past year, in the course and
conduct of Employer's business at its Honolulu, Hawaii
stores, ^ annually it purchases products, goods, and materi-
als valued in excess of $50,000 from sources located out-
side the State of Hawaii. Accordingly they admit, and I
find, that Safeway is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
i All dates herein refer to 1983 unless otherwise indicated
2 An amendment to complaint was issued on June 11,1984
3 The Union made an untimely motion for an extension of time in
which to file its brief, the motion was denied and no brief was ever filed
SAFEWAY STORES
II. THE LABOR ORGANIZATION INVOLVED
6
Both Respondents admit, and I find, that United Food
and Commercial Workers, Local 480 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
On September 10, Employer opened a new store and
its first store on the island of Maui , State of Hawaii.
Called a "super-store" because of its breadth of oper-
ations , the store became the 11th Safeway store in the
State of Hawaii . Certain events prior and subsequent to
the opening of the Maui store are relevant to the case.
1. Preopening facts ..
Employer opened its first Hawaii store on the island of
Oahu in the early 1960's. Shortly thereafter,- the Union
organized Safeway's employees, an election was held,
and_ on .November 26, 1963, a Certification of Represent-
ative was issued certifying the Union as the exclusive
representative of Safeway employees in the following
unit (G.C. Exhs. 2 and 3):
All regular full-time and regular part-time employ-
ees of Safeway Stores, Incorporated • at its Oahu,
Hawaii, operation, excluding office clerical employ-
ees, confidential employees, grocery, produce and
liquor department managers ,. meat department em-
ployees, guards and/or watchmen, and supervisors
as defined in the Act.
About February 2, 1964, the parties entered into the
first of several collective-bargaining agreements . -(G.C.
Exh. 7.) When the agreement was concluded , Employer
had three stores in existence , all on Oahu . Upon expira-
tion of the first agreement on February 4, 1967, the par-
ties subsequently entered into a second agreement effec-
tive October 29, 1967, through October 31, 1970. (G.C.
Exh. 8 .) This agreement covered a fourth Oahu store, in-
cluded by accretion.
Effective December 6, 1970, through December 1,
1973, a third agreement was reached between the parties.
This agreement was limited to the first Hawaiian store
located outside the island of Oahu . This store was
opened in the city of Hilo, island of Hawaii . (G.C. Exh.
9.) The Union had organized this store , and a bargaining
unit similar , to that described above was certified subse-
quent to a Board -supervised election . Other agreements
followed.
On December 30, 1973, a new agreement between the
parties was effective through January 1, 1977. (G.C.
Exh. 10) This agreement merged the Oahu and Hilo
stores into a single agreement and, for the first time, ex-
panded the recognition Clause to include "all full-time
and regular part-time employees covered by this Agree-
ment at the Company's present and future retail stores on
the Island of Oahu and Hawaii ." (art. I , sec. A)4 In the
* This language should be compared to the recognition language in the
first agreement (G C Exh 7) which covered the designated [present] em-
ployees on the island of Oahu (Sec I, H.)
947
1977-1919 "agreement there - was still another change in
the recognition clause. The parties expanded geographi-
cal coverage to include "the Company's present and
future retail stores within the geographical jurisdiction of
. Local 480. (G.C. Exh. 11, art.- 1, sec. A.) This lan-
guage was continued in the 1980- 1983 agreement as
well. (G.C. Exh. 5.)
Upon expiration of the agreement referred to immedi-
ately above, the parties were unable to reach agreement
and an economic strike ensued.5 This strike began on
June 5 and lasted until September 4. In order to exert
maximum economic pressure, the Union caused two or
more union employees from mainland sister locals to
come to Hawaii and remain there for the duration of the
strike, working on behalf of the Union.
One of the major issues in the strike was whether
Safeway would agree to extend the recognition language
to include the Maui store which was then in the process
of its preopening preparation. Initially, the Employer op-
posed this. (G.C. Exh. 12.) Subsequently, agreement -was
reached on- a new contract on September 2, and ratified
by vote of the membership (Oahu and Hawaii stores
only) on September 4. The new agreement, effective
May 1 through April 27, 1986, did contain an expansive
recognition clause covering "all regular full-time and
regular part-time employees employed in the retail stores
on the Island of Oahu, Maui, and Hawaii." (G.C. Exh. 6,
art. I, sec. B.)
2. Postopening facts
The general store manager at Maui was Billy Richard-
son, a witness at hearing. Formerly manager at the Hilo
Safeway store, Richardson began working at the Maui
store on July 6. Approximately 200 employees had been
involved in preopening work. By September 10, another
100 employees had been hired so that approximately 300
employees were working in the store once it opened to
the public. The store contained the usual departments
such as meat, produce, bakery, Oriental, variety, and
others. Most of these departments were staffed by man-
agers who were responsible to Richardson and to his
first and second assistant store managers.
Richardson was responsible to a district manager
whose office was located at one -of the retail stores on
Oahu. The extent of -Richardson's authority and the
nature of his relationship with his district manager will
be discussed in detail below.
On September 13, a group of union officials came to
the Maui store and remained there through September
14. Their activities at the Maui store constitute another
segment of this case. The group consisted of Miyashiro,
Sidney Lee, International representative for the United
Food & Commercial Workers (UFCW) assigned to the
Hawaii region, and the two mainland union representa-
tives who had come to Hawaii to participate and assist
the Union in strike activities. Their names were White-
5 In his testimony , Wayne Miyashiro , union president and negotiator
(GC Exh 6), characterized the strike as an unfair labor practice
strike " (R Exh 59) This appears to be erroneous , and, in any event,
there is no issue in the case'as to the type of strike which occurred
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side and Vespoli. All except for Vespoli testified at the
hearing.
The purpose of the four men's visit to Maui was to ex-
plain the • new contract which purported to cover the
Maui employees and to sign up new members for the
Union and for union health and welfare plans. With the
agreement of Richardson, the union representatives used
the employee breakroom, located to the rear of the store
and on the second level, near the store manager's office.
Both before employees began working and after they fin-
ished, and during lunch and rest breaks, the men talked
to employees in the breakroom for the purpose described
above. A controversy developed between Whiteside and
an employee named Estella Ann Kennison over remarks
purportedly made by the former. This dispute constitutes
another segment of the case and will be resolved below.
After the four men finished their work, they returned
to the union offices in Honolulu Miyashiro and Lee then
contacted Rev. Duncan, an Episcopal priest, whose
church was located near the union offices. Lee allegedly
gave the membership cards signed by Maui store em-
ployees to Rev. Duncan together with a list of Safeway
Maui employees which Lee had received from Safeway
officials. Rev. Duncan then allegedly conducted a card
check and, on September 29, Rev. Duncan purportedly
wrote a letter reporting the results of the card check
(union Exh. 7):
To whom it may concern:
This is to certify that I , The Rev. Rudolph A.
Duncan , have examined the membership application
forms for the employees of Safeway Stores, Inc.
Store No.-220 Kahalui , Maui against a list provided
by the management of that organization . I find that
the majority of the employees have signed member-
ship applications authorizing the United Food and
Commercial Workers International Union AFL-
CIO to represent them for the purpose of collective
bargaining.
Faithfully,
/s/ The Rev. Rudolph A. Duncan
The Episcopal Church of Hawaii
Queen Emma Square
Honolulu, HI 96813
Rev. Duncan did not testify nor was any evidence pre-
sented as to his absence from the case.
B. Analysis and Conclusions
1. Case against Employer
The General Counsel contends that Employer violated
Section 8(a)(1) and (2) of the Act by recognizing the
Union as the exclusive bargaining representative of its
employees at its Maui store, by entering into a collective-
bargaining agreement with the Union purporting to
cover unit employees, and by permitting union agents to
utilize Employer's facilities for union organizing activi-
ties . The General Counsel also alleges that Employer
violated Section 8(a)(1) and (3) of the Act by entering
into a , collective-bargaining agreement which contained a
union-security clause, by deducting union dues . without
obtaining valid voluntary dues-deduction authorizatior
forms, and by transmitting these dues to the Union
To decide these and related- questions, I first turn to
the doctrine of accretion raised by Safeway. -
a. Accretion
Respondents contend that the Maui store employees
were simply an accretion to the bargaining unit em-
ployed at the nine Oahu and one Hilo stores.6 I begin
the discussion by defining the relevant term:
An accretion is simply the addition of a relatively
small group of employees to an existing unit where
these additional employees share a sufficient com-
munity of interest with the unit employees and have
no separate identity. The additional employees are
then properly governed by the unit's choice of bar-
gaining representatives.7
Having determined what "accretion" is, I turn next to
a recent Board decision for guidance on the factors
which determine when accretion is present . Like the case
cited above, this case also involves an administrative law
judge finding accretion only to be reversed by the Board
which ordered the complaint dismissed . In Towne Ford
Sales, 270 NLRB 311, 311-312 (1984), the Board restated
its guidelines on the doctrine of accretion and again
stresses familiar themes: -
The Board has followed a restrictive policy in
finding accretion because it forecloses the employ-
ees' basic right to select their bargaining representa-
tive. We stated in Melbet'Jewelry Co., 180 NLRB
107, 110 (1969), that the Board "will not, under the
guise of accretion, compel a group of employees,
who may constitute a separate appropriate unit, to
be included in an overall unit without allowing
those employees the opportunity of expressing their
preference in a secret election."
In examining this issue, the Board has identified
several factors as especially important in a finding
of accretion. One" of these elements is the degree of
interchange- of employees between the affiliated
companies. Mac Towing, 262 NLRB 1331 (1982). No
weight is assigned , to the fact that interchange is
feasible when in fact there has been no actual inter-
change of employees. Combustion Engineering, 195
NLRB 909, 912 (1972). Another important element
is whether the day-to-day supervision of employees
is the same in the group sought to be" accreted.
6 Subsequent to the Maui store , Safeway opened a 10th the store on
Oahu called the Muliani store This store was apparently accreted to the
unit represented by the Union The General Counsel raises no issue as to
this store and I express no opinion as to its accretion
Safeway Stores, 256 NLRB 918, 924 (1981) In the Safeway case, the
Issue was whether the'employer 's delicatessen department involving five
employees was an accretion to the employer's bakery department Both
departments were located in the same store Reversing the administrative
law judge who found accretion , the Board stated (at 918), it has found
accretion "only when the additional employees have little or no separate
group identity and when the additional employees share an over-
whelming community of interest with the preexisting unit to which they
are accreted "
SAFEWAY STORES
.Save-It Discount Foods, 263 NLRB 689 (1982);
Weatherite Co., 261 NLRB 667 (1982). This element
is particularly significant, since the day-to-day prob-
lems and concerns among the employees at one lo-
cation may not necessarily be shared by employees
who are separately supervised at another location.
Renzetti's Market, 238 NLRB 174, 175 (1978).8
To these guidelines, I add others extracted from various
Board decisions: (1) geographical proximity; (2) integra-
tion of operations; (3) integration of machinery and prod-
uct lines ; (4) similarity of working conditions, skills, and
functions; (5) common control over labor relations; (6)
collective-bargaining history; and (7) the number of em-
ployees to be acquired as compared with the existing op-
eration.9
Before turning to evaluate the specific factors enumer-
ated above, I should refer briefly to a presumption in the
law, as explained in the case of Friendly Ice Cream Corp.
v. NLRB, 705 F.2d 570, 576 fn. 4 (1st Cir. 1983). There
the court reviewed the history of the Board's unit deter-
minations in the area of multistore retail operations and
noted a significant change in the law:
... the Board in 1962 rejected this view [unit
should embrace all employees within the categories
sought who perform their work within the Employ-
er's administrative or geographic area ], replacing it
with a policy which found single store units to be
"presumptively appropriate unless it be established
that the single plant has been effectively merged
into a more comprehensive unit so as to have lost
its individual identity ." [Citations omitted.] 10
I turn now to evaluate the facts of the instant case in
light of the Board's guidelines discussed above. In the
normal situation some elements militate toward and some
against accretion , so that a balancing of them is neces-
sary.11 In this analysis I have taken the liberty of chang-
ing the sequence of the guidelines in such a, way that
seems more convenient to me.
(1) Geographical proximity
Safeway's Maui store is located approximately 100
miles , from the island of Oahu and approximately 200
miles from Hawaii (Hilo store). At least four major inter-
island commuter airlines service the Island of Maui on a
daily basis . (U. Exhs. 6c-d.) The flights take 15 to 20
minutes and do not include time to and from respective
airports on the various islands nor delays caused by
weather or mechanical problems . To fly from Maui to
Oahu round trip costs between a high of $79 to $29.95
(using volume flight coupons). Employer argues in its
brief, that geographical proximity is not a significant
factor to this accretion determination . I find that it is
8 See also Weatherite Co, 261 NLRB 667, 669-670 (1982).
9 C Moms, The Developing Labor Law, Vol. I, Chap 10, Sec 5 (Ac-
cretion) 369-370 (2d ed 1983).
10 V..LM Jeans, 271 NLRB 1408 (1984), Sol's, 272 NLRB 621 (1984)
11 Gould, Inc, 263 NLRB 442, 445 (1982)
949
very significant and the distance involved here weighs
strongly against a finding of accretion.12
(2) Bargaining history
Here too, this factor weighs against accretion. Elec-
tions were conducted initially for the three original Oahu
stores (single election) and for the Hilo store in 1970.
Given the nature of the State of Hawaii, each island
seems to be a separate self-contained market. Thereafter,
as the other Oahu stores were opened, they were accret-
ed into the original unit . It is unnecessary to determine
whether these prior accretions were lawful-or not. 113 As-
suming the validity of this past practice, it does not sup-
port what the Respondents attempt in the present case
on the island of Maui.
Employer contends that, under the contract recogni-
tion clause, six stores have been accreted without objec-
tion by Charging Party or the General Counsel. Assum-
ing this to be the case , it shows only that accretion is
proper for stores located on the same island. There is no
precedent in this case for interisland accretion of
Safeway stores.
(3) Degree of interchange among employees
Richardson, the store manager, testified that he was as-
signed to the Maui store on July 6. About 3 or 4 weeks
before the store opened, a training instructor named Ms.
Daily assigned to the district office on Oahu came over
and hired approximately 300 employees. Initially, and
later after the store opening, applicants for employment
were referred to the store only after screening by Wai-
luki Unemployment Service. Once referred, the applicant
was subject to further interviews by Ms. Daily and, after
opening, by Richardson. The Maui applicants were hired
for the Maui store.
There was some evidence of interchange of employees
between the Maui store and other Safeway stores. Out of
300 employees initially hired, approximately 14 were
transferred to Maui. Of these, almost half were charac-
terized as "Temp Strike Help." (G.C. Exh. 15a.) No evi-
dence was presented to show that any employees were
hired on Maui for other Safeway locations, or that Maui
employees, once hired, later transferred to other loca-
tions. Given the extremely small percentage of inter-
change, the one-way nature of the interchange, and the
fact that Safeway may have felt an obligation to tempo-
rary strike employees to find a place for them, away
from the stores whose picket lines they crossed, I find
that because new employees were hired specifically for
the Maui store and there was minuscule interchange of
employees, these factors do not support accretion.14
12 See Sunset House, 167 NLRB 870, 874-875 (1967), enfd 415 F 2d
545 (9th Cir 1969)
12 See Super Valu Stores, 177 NLRB 899, 900 (1969)
14 Again it should be noted that, although interchange may be feasible
between Safeway stores , I assign no weight to this factor where there has
been no significant interchange
950 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Centralized administrative control including
day-to-day, supervision and integration of
operations, machinery, and product lines
Each Safeway store is separately managed by a store
manager, one or more assistant managers and subman-
agers of the various departments contained within the
store. Each store manager within the State of Hawaii re-
ports to a district manager This district manager is in
turn assisted by various staff persons called "merchandis-
ers " This staff acts as a liaison with the department man-
agers in the various stores.. They are responsible for in-
ventory control of meat, produce, bakery, etc., and do
not have line supervisory control over their counterparts
in the branch stores. Store managers hire, fire, lay off,
promote, make work assignments and schedules, and run
store advertisements in local papers, all technically sub-
ject to the approval of the district manager, which is
given as a matter of course in most instances. The indi-
vidual store manager also supervises training of new em-
ployees which is done in-store, by the department-head
such as the produce manager or, in the-case of baggers,
by the senior and most competent bagger. In connection
with his advertising duties, the store manager decides
what food coupons should be published in the- local
newspapers for later redemption in the branch stores. Fi-
nally, concerning customer complaints, these are almost
always handled in-store. -If the customer service employ-
ee cannot resolve the matter, then the store manager will
look into it. In only very few instances does a complaint
get to the district office. The district manager generally
sets the hours of store operation based on the advice of
the store manager and the latter's knowledge of.- local
conditions. The store manager or his assistant is author-
ized to permit time off for illness or personal reasons. No
store manager of one store has any authority in another
store unless specifically authorized by,the district manag-
er due to a temporary assignment . About once a month,
the store manager will meet with the district manager in
his office or meet with him at a local store which varies
from time to time. I conclude that these factors do not
support accretion due to the decentralized nature of ad-
ministration control.
The integration of operations, machinery, and product
lines is also a factor to be considered here. This discus-
sion need not be lengthy. All Safeway stores are more or
less the same . While there is some difference between the
"super-store" concept such as in Maui and other
Safeway stores, the differences are not significant. The
items sold are similar with some allowance for local
tastes . The location of the items for sale are uniform in
each store, andthe prices of items are set outside the
store. As noted above, there are some differences 'in
hours of operations between stores, based in part on the
store manager's evaluation of local competition. This is
particularly true of holiday hours. However, all Safeway
stores are opened 7 days a week. Employees are paid by
checks from the Fremont, California office, 15 sometime
'15 The headquarters office in Fremont is responsible for Safeway oper-
-ations in several western States, including Hawaii, and is apparently the
next administrative level after the district office -
after the local store sends in the timecards each week.
This is done after the store manager or his assistant ap-
proves them. The Fremont, California office also handles
the refuse company and armored car contracts. The store
manager has authority for window board-up service as
needed. The store manager is also responsible to the dis-
trict office for profits and if the manager does not meet
his monthly goal to increase sales and reduce expenses,
he is liable to be scolded by the district manager.
To evaluate the facts in this immediate section of the
decision, I turn to Friendly Ice Cream Corp. v.- NLRB,
supra, 705 F.2d 570, 577-578 (1st Cir. 1983). There the
court stated:
The administration of the Friendly chain is a
casebook study in centralized control. Like most
retail chains, Friendly relies -upon uniform policies
which regulate practically every aspect of the indi-
vidual stores' operations. But the company's deter-
mination of the most efficient form of organization
cannot be ascribed controlling significance in mat-
ters of unit determination. Otherwise, "an employer,
by centralizing all matters of labor policy, [could]
prevent the NLRB from selecting as appropriate a
unit of smaller dimensions - than the employer's
whole enterprise even though that smaller`unit was
the one which in light of all the relevant factors the
NLRB determined would be appropriate under [the
Act]." NLRB v. Living and Learning Centers, Inc.,
652 F.2d at 215.
In the context of a retail chain operation, one of
the most weighty factors in determining the appro-
priateness of a single store unit is the'degree of con-
trol vested in the local store manager . Such control
does not specifically refer to the local manager's
freedom to establish prices, decor or menus-
though control of these decisions might be indica-
tive of the level of -integration of the employer's
business . Rather, the Board considers as significant
the local manager's effective control of those areas
"which most directly-affect the restaurant's employ-
ees." Magic Pan, Inc. v. NLRB, 627 F.2d, 105, 108
(7th Cir. 1980) (per curiam).
Using the standards described by the court, I- find that
Richardson, the Maui Safeway manager exercised signifi-
cant authority to those matters which most directly
affect the Maui'employees. Accordingly, I weigh the fac-
tors addressed here against accretion. - -
On the other hand, I weigh in favor of accretion the
similarity of -working conditions, skills, and functions.
For the same reasons noted above, Safeway unit employ-
ees perform basically the same functions at one store-as
- at another. The skills and functions of the checkout
clerks, stockboys, and baggers are all approximately
identical. .
(5) Number of Maui employees compared to the .
other Safeway stores ,
The record is not crystal clear on this point but there
is no question that there were fewer unit employees at
Maui than in the existing Safeway unit. More specifical-
SAFEWAY STORES 951
ly, as of September 10, there were 150-200 employees at
the Maui store.16 As of'the same date, unit employees at
the other 10 Safeway stores numbered between 300-400
employees. Thus, the new facility would add between 33
percent to 50 percent 'more employees to the existing
unit.- I weigh this factor in favor of accretion in this case.
(6) Common control over labor relations
Employer notes that labor relations, like other aspects
of Safeway's administration, are centrally controlled by
the San • Francisco Division. It, then focuses on the duties
.and responsibilities of Theodore Picard, Safeway branch
manager of the Northern California Division of Industri-
al Relations. Picard testified at hearing that he negotiates
all contracts and handles, all grievances that arise in
northern California, northern Nevada, and Hawaii.
When Picard's sweeping testimony is considered in the
context of this case,. it is not to be accepted completely
at face value. For example, Maui Store Manager Rich-
ardson has substantial responsibility in the area of labor
relations' Thus,, if a Maui employee desires reassignment
to a new job, the procedure is to make the.request in
writing through the department head who makes a rec-
ommendation, and then to Richardson, who makes the
final decision. If a,Maui employee has a problem with a
paycheck, the employee goes through Richardson's sec-
retary'fiist to attempt to resolve the matter.
For those occasions when a formal grievance is filed
(as of the day of hearing, none had been filed at the
Maui store it is, filed with Richardson and with the dis-
trict office concurrently. Then, Richardson has the first
opportunity to settle the matter. Once the Union came in
on behalf of two' cashiers' who claimed they were not re-
ceiving the proper wages. Without a' formal written
grievance being filed, Richardson and the Union worked
together to settle the matter in-store. While this factor is
not as strong as others opposed to accretion, I find that
it tilts in that direction and will count it accordingly.
To recapitulate, I find in favor of accretion only the
rather unimportant factors of integration of operations
and product lines and' the similarity of working condi-
tions, skills, and functions and number of Maui employ-
ees as compared to other Safeway' unit employees. Op-
posed to accretion are the more significant factors of
geographical proximity, bargaining history, degree of
interchange among employees, centralized administrative
control, day-to-day supervision, and common control
over labor relations.- I compare the summary above to
the summary provided by Prof. Morris of what he be-
lieves are the controlling criteria regarding accretion:
. . . a new facility would likely be treated as an in-
dependent operation and not an accretion where (1)
new employees are hired specifically for the new fa-
cility, (2) the facility • is separately managed, (3)
there is no interchange of employees between the
new and previous operations, and (4) either the faci-
lilties are geographically distant or the operation of
16 This is the only relevant number since the accretion is alleged to
have occurred on the day the store opened
the new facility is autonomous despite close geo-
graphical proximity.17
I count all four of these factors against accretion in the
present case. Based on the above analysis, therefore, I
must conclude there is no accretion in this case.
b. Recognition clause
Having decided that no accretion occurred in this
case, I turn now to consider what effect, if any, the rec-
ognition clause of the collective-bargaining agreement
has on the allegations of the complaint. I conclude that
Safeway's reliance on the recognition clause, like its reli-
ance on the doctrine of accretion, must be rejected.
The recognition clause in this case has been recited in
the "Statement of Facts" and need not be repeated. In
Houston Division of Kroger Co., 219 NLRB 388 (1975), a
case cited and relied on by the Employer, the Board
held that recognition clauses like the one in issue here,
characterized by the Board as "additional store clauses,"
are valid in situations where the Board is satisfied that
the employees affected are not denied their right to have
a say in the selection of their bargaining representa-
tive.18 The Board went on to hold over strong dissents
by Members Kennedy and Penello that the effect of the
additional stores clause was to waive the employer's
right to demand an election at the additional store, so
long as majority status was shown by a card check or
some other method. The Kroger case cited above turned
on the undisputed fact, which the Board repeatedly men-
tions, that the union had majority status. This central
factor is missing from the present case. i 9
To be sure, the Union argued at hearing that it had
majority status at the Maui store based on the card check
conducted by Rev. Duncan. The flaws in Respondent's
reliance on the "Rev. Duncan" part of the case are mani-
fest.
First, the report of Rev. Duncan alleging showing the
Union had a majority support is dated September 29.
The report is allegedly based on union activity of Sep-
tember 13 and 14 on Maui. However, the union agents
told Safeway employees that the store had already rec-
ognized them as the bargaining agent, suggesting the
'membership applications were only a formality. It cannot
reasonably be argued that Rev. Duncan's card check
report would relate back, even prior to September 13
and 14, to justify Safeway's recognition of the Union
prior to the obtaining of the cards.
Second, neither Rev. Duncan nor the cards and em-
ployee list which Lee gave to the Reverend, to make the
card check, were offered nor admitted into evidence. As
to the latter items, the following colloquy occurred be-
tween me and witness Lee:
Q. Did you also say you personally were the one
that gave the cards to Rev. Duncan?
A. Yes sir.
17 C Moms, The Developing Labor Law , supra at 370
re Retail Clerks Local 870 (White Front Stores), 192 NLRB 240 (1971).
19 See W. C DuComb West, 239 NLRB 964, 966 (1978) -
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
, Q. When you gave him the cards, you. also gave
him a list of employees that you had received from
Mr. Johnson? [Safeway official]
A. That's correct.
Q. At a later time you received back from Rev.
Duncan what you had given to him, is that correct?
A. Yes sir.
Q. Where are the cards now that you gave to
Rev. Duncan.
A. Here on the desk by counsel.
Q. In counsel's possession? You've seen them
there? -
A. Yes.
Q. And you're able. to ascertain that the exact
number of cards which you had given , to Rev.
Duncan are now in the possession of counsel?
A. There might be a few more that came in after
that date.
Q. Where is the employer's list that you gave to
Rev. Duncan? . .
A:,That would be the local union office.
Q. That is not here in this hearing room at this
time?
A. It possibly might be in one of those folders. I
don't know.
I draw adverse inferences from Respondent 's failure to
produce-Rev. Duncan, the cards, and the employee list. I
find that, had they been produced, they would not have
supported Respondents' position.20 Accordingly, I "fmd
no evidentiary basis to support the alleged letter of Rev.
Duncan (U. Exh. 7) and, assign it no weight in this
case. 21
Alternatively , assuming arguendo , that I erred above
in analyzing the evidence with respect to Rev. Duncan's
card check , I am still required to find no valid showing
of majority support which would render the "additional
store" clause applicable to this case . In NLRB Y. Retail
Clerks Local 588, 587 F.2d 984, 986-987 (9th Cit. 1978),
the facts were similar to those in the present case. The
court carefully stated the law with respect to accretion
and a "new stores" clause:
All parties proceeded on the assumption that em-
ployees of any new store should simply be accreted
to. the respective, multi-store units in accordance
-20 See Martin Luther King, Sr., Nursing Center, 231 NLRB 15 fn. 1
(1977) -
Bt In Its brief, Safeway argues that the adverse inference rule does not
apply here , because the General Counsel "did not challenge nor did she
present any evidence to contradict the validity of the card check " This
argument is frivolous. First , Safeway's evidence did not even , approach
prima facie evidence of a valid card check There is no valid foundation
to exactly what Rev. Duncan did or how he arrived at his conclusion
that majority status was shown. Further, the number of cards given to
Rev Duncan and the number of names on the employee list have not
been proven . The letter purportedly signed by Rev Duncan is not cred-
ited and, even if - it were , it falls far short of sufficient foundation for a
valid card check Finally , I find that the General Counsel at no time con-
ceded the validity- of the card check. Accordingly , her challenge to the
Respondents' card check evidence was continuing and persuasive. -Alter-
natively, if an adverse inference is not appropriate here, I assign little or
no weight to the evidence regarding Rev. Duncan because of the lack of
foundation and because of its hearsay nature.
with the existing contracts . This, of course, denied
employees of a new store their freedom _ of choice,
for an election is never held . New, store employees
are simply subsumed into the larger unit without
anyone ascertaining whether they desire union rep-
resentation, and if so, . whether. they desire to join
the larger unit : The new stores clauses were relied
on to justify this practice:
The courts have 'frowned on this contractual
usurpation of'§ 7 rights . . . . Since contract rights
cannot exist independent of the union's right to rep-
resent the unit, the new stores clause cannot bind
the new employees despite the employer's acquies-
cence. [Citation omitted.]
Board policy has been to deny efficacy to such
clauses, "and this court has explicitly approved this
policy.` E.g., 'Sheraton -Kauai Corp. v. NLRB, 429
F.2d 1352 (C.A. 9, 1970).2 Thus, when a new store
is opened , union representation cannot be forced on
the new employees ; they must be allowed to decide
their own representation . NLRB v. Sunset House,
415 F.2d 545 (C.A. 9, 1969). Employee freedom of
choice will be denied only when the new employees
have no separate identity from employees in the ex-
isting unit ... that is, when the new store cannot
itself constitute an appropriate unit .' Presumptively,
a new store can constitute an appropriate unit, and
consequently the new employees should rarely be
accreted to the existing unit. Sheraton-Kauai Corp. v.
NLRB, supra. Of course, the new employees can
choose, through an - election or more informal meth-
ods, to_ join the existing unit.
Thus, respondent argues ' that, by enforcing the
new stores clause when hiring drug employees at
the, Auburn location , Raley's (and IDCA) violated
Board policy favoring freedom of choice over ac-
cretion, and that this nullifies the IDCA. card major-
ity and its recognition by, Raley's. In Sheraton-
Kauai, supra, this court held that union authoriza-
tion cards obtained pursuant to a new, stores clause
that also included a union shop proviso were in-
valid.-Under such circumstances, coercion is inher-
ent, the court said. -
But - even if we accept respondent 's argument, it
does not provide a defense to these charges. Re-
spondent 's majority among Auburn foodstore em-
ployees was obtained by enforcing its new stores
clause. Thus, if respondent 's contentions are cor-
rect, its majority among foodstore employees was
also illegitimate because coerced . Consequently, its
storewide majority, as evidenced by the cross-check
"election," would also be invalid . By demanding
recognition and executing a contract on -behalf of
employees it did not legitimately represent , respond-
ent- violated the Act even under its construction of
the applicable law and facts.... '
2 The most such clauses do is waive the employer's absolute
right to demand an election; instead the employer must accept al-
ternative methods.of proving majority support Retail Clerks Intl
SAFEWAY STORES'
Ass'n, Local 455 v NLRB, 166 U S. App • D C. 422, 510 F 2d 802
(1975).
Thus, applying the' principles of law stated above to
the instant case, 1-find that, under Respondents' own ar-
gument, there is virtually a conclusive presumption that
,the majority support they claim to have obtained pursu-
ant to` the "new stores" -clause is coerced and is of no
value in producing a defense to the charges here.
- In light of the discussion above, I find the evidence
against" Safeway overwhelming ' and the General Coun-
sel's arguments convincing. Accordingly, I find that the
Employer 'violated Section 8(a)(1) and (2) of the Act by
recognizing the Union at' its Maui store and-by purport-
ing to enter into a collective-bargaining'agreement with
the Union purporting to cover a unit of Maui Safeway
employees, when the Employer knew the-Uiiion did hot
represent a majority of Maui unit employees.22
I find further that Safeway unlawfully assisted the
Union by permitting union agents to utilize its facilities
on September 13 and 14 for the purpose of obtaining
union membership applications and union health and
welfare applications.23 Not only were union representa-
tives-permitted to use the employee breakroom for the
better parts of 2 full days, they were also permitted to
stand near the employee timeclock to better direct em-
ployees to the breakroom prior to the beginning of the
shift. All of this was done with the acquiescence of Store
Manager Richardson.. There is even evidence that the
district manager was in the store for part of the relevant
period:
Finally, I find that Safeway also violated Section
8(a)(1) and (3) of the Act by discriminating in regard to
the hire or-tenure or terms or conditions of employees in
that Safeway's purported labor agreement with the
Union contained .a union-security clause. Pursuant to this
clause,' Safeway "deducted union dues without obtaining
valid voluntary dues-deduction authorization forms.24
Contrary to Safeway (Br. 29-31), I find that the member-
ship applications were tainted, coerced, and without
force and effect to justify the dues deductions. 2 5'In this
respect, I also credit the testimony of Doreen Nakasone,
a cashier at the Maui store and witness at hearing,-
I asked [Miyashiro] about the union , was there any
probation period. He said it was 45 days. I asked
did we, have to sign and he said-whether we
signed then or later, we still have to sign in 45. days.
To me this statement is coercive on its face, because it
implies termination by the store if the card was not
signed'within 45 days. Further, when considered in con-
text of Miyashiro's `other remarks, that the Union had
22 Masters-Lake Success, Inc, 124 NLRB 580, 592-593 (1959), as mode-
feed 287 F 2d 35 (2d Cir 1961), Monfort of Colorado, Inc., 256 NLRB 612
(1981), enfd 683 F 2d 308 (9th Cu. 1982). Even if Safeway believed, in
good faith , that the Union represented a majority of its Maui employees,
good faith is-no defense to the 8(a)(2) violation found here . Ladies Gar-
ment Workers (Bernhard-Altmann Texas Corp) v NLRB, 366 U S 731
(1961)
22 Vernitron Electrical Components, 221 NLRB 464 (1975), enfd: 548
F.2d 24 (1st Cir. 1977).
24 NLRB Y. Western Budding-Maintenance Co, 402 F 2d 775 (9th Cir.
1968); NLRB v. Campbell Soup Co, 378 F.2d 259 (9th Cir 1967).
2 s Monfort of Colorado, supra, 256 NLRB at 620.
953
held out in the strike to include the Maui store under the
.contract and that he represented the Union who was rep-
resenting the Maui unit employees, the effect of Miya-
shiro's statement in issue becomes even more pro-
nounced.26
Although it is true that of the 50-60 membership appli-
cations solicited by the two union agents , there is evi-
dence calling into- question only 2. Yet under the facts
and circumstances of this case, I find that it was probable
that the agents did not'vary their remarks by employees,
but remained consistent. Further, their presence in the
breakroom as they identified themselves as representa-
tives of the Union already representing unit employees
was itself sufficiently coercive to invalidate the member-
ship applications.27
In conclusion, I'note the controversy which arose at
hearing with respect, to the union dues. According to
representations by union counsel and witnesses, a wide-
spread error was first detected in its bookkeeping system
during the hearing. Allegedly, the Union's records re-
flected receipt of dues from Safeway on behalf of Maui
unit employees, but such dues in fact had not been trans-
mitted by Safeway nor, received by the Union. On behalf
of Safeway, Picard testified that, notwithstanding, union
records showing receipt of relevant dues deductions, the
dues had been deducted, but not . transmitted to the
Union. According to' Picard, shortly after the instant
charges ' had been filed, Safeway officials consulted with
counsel 'and decided to hold all Maui union dues in
escrow until this case was resolved. Picard also testified
that Safeway had received dues only for those employ-
ees who had executed dues authorization forms. Other
than Picard's testimony and the anguished claims of
union, representatives that they had not been receiving
the moneys that their own records said they had been re-
ceiving, there was no other evidence to support this
aspect of the case. More specifically, there was not pro-
duced any' dues-authorization forms, whether or • not
signed by Maui employees, no•proof of escrow accounts,
amounts contained therein, or when exactly established,
or any convincing explanation of how-the Safeway com-
puter printouts reflected the transmission of the.dues to
the union organization.
In light of the above, I decline to involve myself in
this aspect of the case. Whether or not the dues have ac-
tually been transmitted to the Union is not essential and I
make no fording on that point. Assuming,- arguendo, that
the'dues are in escrow, I ford that the Union has con-
structive possession. Because 'there is no accretion, the
dues deductions were unlawful and I so fmd.28 I leave
26 Safeway states in its brief that both Miyashiro and Whiteside denied
making the statements attributed to them by Kennison and Nakasone Al-
though Whiteside did make such a denial, Miyashiro did not . I will con-
sider the issue of Whiteside's alleged - statement below.
21 Sheraton-Kauai Corp. v. NLRB, 429 F 2d 1352, 1357 (9th Cir. 1970),
Farmers Energy Corp., 266 NLRB 722 (1983). In accord with the Board's
instruction in Farmers Energy, I have examined both the pre-and postre-
cognition conduct of the Respondents to make the relevant findings.
2e Sheraton-Kauai Corp., 177 NLRB 25 ( 1969), enfd . 429 F.2d 1352
(9th Or. 1970).
.:954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for compliance the sorting out of which party actually
has the union dues which were unlawfully deducted and
the reimbursement of affected employees in a manner
more fully described in the remedy portion of this deci-
sion.
2. Case against Union
a.' Conclusionary findings
In light of my findings regarding accretion, and the
additional stores clause , the evidence in this case is suffi-
cient to show that the Union has restrained and coerced
employees in the exercise of their Section 7 rights in vio-
lation of Section 8(b)(1)(A) of the Act. Thus, I find that
the Union violated the Act by receiving unlawful aid
and assistance from Safeway on September 13 and 14 in
that-Safeway made its facilities available to the Union
under the facts and circumstances recited above.29
I find further that the Union violated Section 8(b)(2)
of the Act by entering into a collective-bargaining agree-
ment • with Safeway purporting to cover, Safeway Maui
employees and purporting to contain a union-security
provision when the Union did not represent an un-
coerced majority of unit employees. As a result of such
action , the Employer discriminated against affected em-
ployees. ;
Finally, I find that the Union violated Section
8(b)(1)(A) of the'Act for actually or constructively' re-
ceiving union dues deducted pursuant to a union -recogni-
tion clause in an invalid collective-bargaining agreement.
b. Whitehead's alleged coercive statement
Estella Ann Kennison, a former Maui employee" of
Safeway,' testified that, on September 13, a man identified
as Oscar Whiteside made a certain statement to her
which, 'if credited, would be coercive and would support
the General Counsel's theory that the 2-day membership
solicitation activity was. hopelessly tainted. Allegedly,
Whiteside told her that if she did not sign this card
(union membership application) she "was going to be out
on her ass." Whiteside took the stand and denied making
the statement . I credit his denial. -
Although several other persons were in and about the
breakroom , no one else heard the alleged remark. No
other witnesses testified that similar remarks were made
to them . Kennison never mentioned the alleged remark
at the time ; rather she waited until sometime in October
or November when she mentioned the alleged remark to
Lee. Kennison's husband is an official of another union
and it seems to me likely that, if the remark had been
made, she -would promptly have reported it.
On the other hand, Whiteside seemed like an experi-
enced union agent . As the only black person involved in
this case, Whiteside would not very likely have ad-
dressed an , Oriental-Hawaiian person in the way alleged,
when the Union was making every effort to create good
relations with the Maui employees.
In the final analysis , whether I believe Kennison or -
not on this point-and • I ' do not-there is little or no
29 See Franklin Convalescent Center, 223 NLRB 1298 (1976)
effect on the General Counsel's case. I do, however, rec-
ommend thrt this allegation be dismissed.
CONCLUSIONS OF LAW
1. Respondent Safeway Stores, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent United Food & Commercial Workers
Local 480 is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent Safeway Stores, Inc. and Respondent
United Food &' Commercial Workers Local 480 have
violated Section 8(a)(1) and (2) and (b)(1)(A) of the Act
respectively as follows:
(a) Safeway Stores, Inc. for giving and United Food &
Commercial Workers Local 480 for receiving unlawful
assistance and support in a union organizing, campaign
such as Safeway making its breakroom available for
union representatives to solicit union membership appli-
cations and union health and welfare applications and
permitting union representatives to tell employees that
their union represented them as a result of prior.action
by Safeway.
(b) Safeway Stores, Inc. for giving and United Food &
Commercial Workers Local 480 for accepting recogni-
tion when both Respondents knew that United Food &
Commercial Workers Local 480 did not represent an un-
coerced majority of employees.
(c) Safeway Stores, Inc. for giving and United Food &
Commercial Workers Local 480 for accepting recogni-
tion prematurely when the additional stores clause in the
collective-bargaining agreement was invalid and when
there was no accretion.
4. Respondent Safeway violated Section 8(a)(1) and (3)
of the Act by maintaining a union-security clause in an
invalid collective -bargaining agreement (as to Safeway
Maui employees) pursuant to which Safeway deducted
union dues without obtaining valid voluntary dues-de-
duction authorization forms.
5. Respondent United Food & Commercial Workers
Local 480 violated Section 8(b)(2) for receiving the bene-
fits of the dues deduction under the circumstances stated
in paragraph 4 above.
6. Respondent United Food &- Commercial Workers
Local 480 has violated Section 8(b)(1)(A) of the Act
when its • agent, Miyashiro, coerced an employee into
support for the Union by threatening her with implied
loss of employment.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Except as specifically found herein, Respondents en-
gaged in no other unlawful conduct.
THE REMEDY30
Having found that Respondents engaged in certain
unfair labor practices, I will recommend that they be or-
so Early in the hearing, an issue arose regarding Safeway 's costs in
complying with the General Counsel 's subpoena . The General Counsel
needed the records because of the Union 's initial denial of jurisdictional
Continued
SAFEWAY STORES,
dered to cease and desist therefrom and to take other ac-
tions designed to- effectuate the purposes and policies of
the Act. Respondent Employer will be required to with-
draw and withhold recognition from Respondent United
Food & Commercial Workers Local 480 and to cease
giving effect to the collective-bargaining agreement
which these parties had heretofore executed effective
May I through April 27, 1986, until such time as Re-
spondent- United Food & Commercial Workers Local
`•480 shall have been certified-by the Board as the exclu-
sive representative of the employees in question. I shall
further recommend that Respondent Union cease and
desist from acting as the collective-bargaining representa-
tive of Safeway's Maul employees. However, nothing in
this Order shall authorize or require the withdrawal or
elimination of any wage increase, or other benefits,
terms, or conditions of employment which may have
been established pursuant to the performance of that
agreement. I further recommend that both Respondents
jointly and severally reimburse all present and former
Maui employees for all initiation fees, dues, or other'
moneys exacted from them by or on behalf of Respond-
ent United Food & Commercial Workers Local 480 pur-
suant to the dues-checkoff provisions of the aforemen-
tioned ` collective-bargaining contract, together with in-
terest thereon computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977).31_
On these findings of fact- and conclusions of law and
on the -entire record, I issue the following recommend-
ed32
ORDER
A. Respondent, Safeway Stores; Inc., Kahului, Hawaii,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Giving unlawful assistance and support to United
Food & Commercial Workers Local 480 in a union orga-
nizing campaign such as Safeway making its breakroom
available for union representatives to solicit union mem-
bership applications and union health and welfare appli-
cations and permitting union representatives to tell em-
ployees that their union represented them as a result of
prior action by Safeway. -
(b) Assisting or contributing support to United Food &
Commercial Workers Local 480 by recognizing or bar-
gaining with -such labor organization as the exclusive
representative of its Maui, Hawaii store employees-
allegations in the complaint At hearing , the Union amended its answer to
admit all or most of the allegations in question By that time, however,
Safeway had already procured the subpoenaed records and incurred costs
amounting to $468 . 16 (E Exhs. 1-4) Nowhere in its well-written and
comprehensive brief does Safeway discuss the issue of its alleged , costs,
the culpability, if any , of the Union for causing the costs , and my author-
ity, if any , to order the Union to reimburse Safeway I conclude that I
lack authority to resolve this matter, and make no findings . Safeway's
remedy, if it exists, will have to be in some other forum
'i See Isis Plumbing Co, 138 NLRB 716 (1962), for rationale on inter-
est payments. _
ss If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
955
unless and until the union is certified by the Board as the
collective-bargaining representative of the . employees
pursuant to Section 9(c) of the Act.
(c) Maintaining or • giving any force: or. effect at Maui,
Hawaii,-to the collective-bargaining agreement effective
May `l, 1983, between Respondent Employer and Re-
spondent Union; and (with respect to Maui store only) to
any renewal, extension, or modification thereof; provid-
ed, however; that -nothing in this Order shall authorize
the withdrawal or elimination of any wage increase or
other benefits, terms, and conditions of employment
which may have been established pursuant to the per-
formance 'of the contract: -
(d) In any like or related manner interfering with, re-
straining , or coercing employees in' the exercise of the
rights guaranteed them by Section 7 of the Act.33
2. Take the following affirmative action designed to ef-
fectuate 'the purposes and policies of the Act.
(a) Withdraw and withhold all" recognition from
United Food & Commercial Workers Local 480 as the
collective-bargaining representative of its Maui employ-
ees unless and until the labor organization has been certi-
fied by the National Labor Relations Board as the exclu-
sive 'representative of such employees at its store at
Maui, Hawaii. "
(b) Jointly and severally reimburse all former and
present employees employed at its store at Maui, Hawaii,
for all initiation fees, assessments, and other. moneys, if
any, paid by or withheld from them in the manner pro-
vided in the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its store at Maui, Hawaii, copies of the at-
tached, notice marked "Appendix A"34 Copies of the
notice, on forms provided by the Regional Director for
Region 37, after - being signed by the Respondent's Em-
ployer authorized representative, shall be posted by the
Respondent Employer . immediately • upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent Employer to ensure that the notices are not
altered, defaced, or covered-by any other material.
(e) Upon being furnished the same by the Regional Di-
rector, post the notice marked "Appendix B" in the same
manner as "Appendix A."
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps it has taken
to comply.
ss H,ckmott Foods. Inc., 242 NLRB 1357 (1979)
3* If 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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respondent United Food & Commercial Workers
Local 480, Honolulu, Hawaii, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Receiving unlawful assistance and support from
Safeway Stores, Inc., such as Safeway making its break-
room available for union representatives to solicit union
membership applications and union health and welfare
applications and permitting union representatives to tell
employees that their union represented them as a result
of prior action by Safeway.
(b) Maintaining or giving any force or effect at the
Maui, Hawaii store to the collective-bargaining agree-
ment effective May 1, 1983, between Respondent Em-
ployer and Respondent Union, and to any renewal, ex-
tension, or modification thereof; provided, however, that
nothing in this Order shall authorize the withdrawal or
elimination of any wage increase or other benefits, terms,
and conditions of employment which may have been es-
tablished pursuant to the performance of said contract.
(c) Acting as exclusive bargaining representative of the
employees at Safeway Stores, Inc., Maui, Hawaii, for the
purposes of collective bargaining, unless and until the
labor organization shall have been certified by the Board
as the collective-bargaining representative of the'employ-
ees.
(d) Impliedly threatening employees of Safeway
Stores, Inc., Maui, Hawaii, with loss of employment if
they do not become members of Respondent Union.
(e) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
(a) Jointly and severally with Safeway Stores, Inc. re-
imburse all former and present employees at its store at
Maui, Hawaii, for all initiation fees , assessments, and
other moneys, if any, paid by or withheld from them in
the manner provided in the remedy section of this deci-
sion.
(b) Post in its offices and meeting halls copies of the
attached notice marked "Appendix B."35 Copies of said
notice, on forms provided by the Regional Director for
Region 37, after being signed by Respondent Union's of-
ficial representative , shall be posted immediately upon
receipt and be maintained by it for 60 consecutive days
in conspicuous places including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Respondent Union and its agents to
ensure that such notices are not altered, defaced, or cov-
ered by any other material.
(c) Forward to the Regional Director signed copies of
Appendix B for posting by Safeway Stores, Inc., at its
store at Maui, Hawaii, for 60 consecutive days in places
where notices to employees are customarily posted.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
115 See fn. 34, supra