Warehouse Markets, Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1969

174 N.L.R.B. 401 (N.L.R.B. 1969)

WAREHOUSE MARKETS
Warehouse Markets, Inc. Petitioner and Retail
Clerks Union, Local 1086, AFL-CIO. Case
18-RM-629
February 10, 1969
DECISION ON REVIEW
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On September 12, 1968, the Regional Director for
Region 18 issued a Decision and Direction of
Election in the above-entitled proceeding (attached
hereto), in which he found appropriate a unit of all
grocery and produce employees of the Employer's
new "Foodtown" store at St. Anthony Village,
rejecting the Union's contention that the St.
Anthony Village store is an accretion to an existing
multistore unit encompassing all grocery and
produce employees of "Foodtown" stores in the
Minneapolis and Saint Paul Twin Cities area, and
that the existing contract bars the petition herein.
Thereafter, the Union, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure,
Series 8, as amended, filed a request for review of
the Regional Director's Decision on the grounds
that the Regional Director erred in finding the new
store not to be an accretion, and in refusing to
consider an arbitration award, issued September 11,
1968, in which the official arbitrator found that the
St. Anthony store is an accretion to the multistore
unit and that the multistore contract covers the new
store.'
On October 9, 1968, the National Labor
Relations Board by telegraphic Order granted the
request for review and stayed the election pending
decision on review.' The Employer filed a brief in
opposition to the request for review.
The Board has considered the entire record in this
case with respect to the issues under review and, not
finding any merit in the consideration advanced by
the Union, hereby affirms the Regional Director's
Decision.
Accordingly, the case is hereby remanded to the
Regional Director for Region 18 for the purpose of
holding an election pursuant to his Decision and
Direction of Election, except that the payroll period
for determining eligibility shall be that immediately
preceding the date below.3
'Although this award was issued the day before the Regional Director's
Decision, the award itself is not discussed by the Regional Director nor
was a copy of it made a part of the record prior to the issuance of his
Decision The Union , however , attached a copy of said award to its request
for review.
'The telegraphic Order further stated that , in the absence of good cause
shown to the contrary, the arbitrator ' s award would be incorporated into
the record of this proceeding Inasmuch as no party advanced any reason
not to include this award , it has been incorporated in the record herein.
'An amended election eligibility list, containing the names and addresses
of all the eligible voters , must be filed by the Employer with the Regional
401
MEMBERS BROWN AND ZAGORIA, dissenting:
We would find an accretion in this case for the
reasons stated by the arbitrator. Accordingly, we
would dismiss the petition.
Director within 7 days after the date of this Decision on Review No
extension of time to file this list may be granted except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed . Excelsior
Underwear Inc, 156 NLRB 1236
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, a hearing was held before
a hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its powers in connection with this
case to the undersigned Regional Director.
Upon the entire record in this case, the Regional
Director finds
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The labor organization involved claim(s) to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.'
'The Union' s position is that a collective bargaining agreement exists
which is a bar to the petition Additionally , the Union requested that this
matter be deferred pending the outcome of an arbitration case wherein the
parties have submitted the issue as to whether the above-mentioned
agreement or any subsequent agreement applies to the Employer's St.
Anthony store. The Employer contends that there is no contract in effect
covering the St . Anthony store
Messrs Dudowitz and Lipshultz own all of the stock of four
corporations operating a chain of food stores under the name "Foodtown."
In addition to the store involved herein located in St Anthony Village,
Minneapolis , there are four stores in St . Paul and three in Minneapolis.
For several years the employees of Foodtown stores have been covered by
single collective bargaining agreements executed by this Union, Local 789
of the same International , and the various corporations operat.ng
Foodtown stores. The stores within the jurisdiction of the respective Local
were serviced by that Local
The term of the contract which the Union asserts as a bar ran from
February 23, 1965 , through February 22, 1968. This agreement has an
automatic renewal clause providing for renewal of the agreement from year
to year unless notice is given 60 days prior to the expiration period. There
is no evidence in the record that notice was given to forestall automatic
renewal but during the investigation of Case No 18-CA-2613 the Union
claimed that a new agreement superseded the one asserted as a bar in this
case However, in light of my decision below, it is unnecessary in this case
to determine whether the contract asserted as a bar was renewed or
whether a new agreement was negotiated
In the fall of 1967 the Employer commenced remodeling a building to
house the St Anthony store which was eventually opened in March 1968
In December 1967 the Union took the position in a letter to the Employer
that under its collective bargaining agreement it represented the employees
of present and future Foodtown stores in the Twin Cities area and
considered the St. Anthony store an accretion to the existing unit The
Union now contends that the St Anthony store accreted to the existing
unit in December 1967 and therefore its contract encompassing Twin Cities
area Foodtown stores bars an election at this time
When the St Anthony store opened, no equipment was transferred from
other stores, the original inventory being ordered by the Employer from
wholesalers as opposed to being moved from other stores The employees
at the St Anthony store were newly hired for the specific purpose of
staffing that store . However , before the hiring was completed, it was
174 NLRB No. 70
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The following employees of the Employer constitute
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All grocery and produce employees of the Employer's
St Anthony Village store; excluding meat department
employees , managers , guards and supervisors as
provided in the Act.2
[DIRECTION OF ELECTION3 omitted from
publication.]
necessary to utilize employees from other Foodtown stores for
approximately two or three weeks. Since this initial period the employees
of the St. Anthony store have interchanged minimally (on only two or
three occasions ) with employees of other Foodtown stores. However, some
supervisory personnel were obtained from other Foodtown stores.
At the time of the hearing there were approximately 35 employees in the
St. Anthony store of whom 30 are employed in the grocery and produce
departments . None of the employees in the unit have been transferred from
other Foodtown stores The manager of the Foodtown store is responsible
for placing merchandise orders, stocking the shelves and otherwise running
the day-to-day operation at the St. Anthony store . He has the authority to
hire employees, but generally full-time employees are interviewed by a
roving supervisor to whom the manager is directly responsible.
Product advertisements to consumers are made under the single label of
Foodtown . Occasionally , however, individual stores advertise special sales
existing only at that store. There is a uniform pricing policy for all
Foodtown stores which is set by Mr Lipshultz Pay and fringe benefits are
uniform in all Foodtown stores . The payrolls are all compiled at the office
which is used for all the corporations The records for all corporations are
kept at an accountant's office who services all corporations . Instruction is
provided from the central office to the store manager on the new lines of
goods that the store manager is to buy from the wholesaler A separate
bank account is maintained for the St Anthony store and its performance
is evaluated separately from other stores.
On at least one occasion in the past , the Union has been voluntarily
recognized as the representative of a subsequently opened store in
Minneapolis without an election. There is no evidence in the record
concerning the circumstances surrounding the opening of this particular
store.
The Union ' s brief discusses at some length the pattern which has
emerged from the collective bargaining relationship between the parties
over the past 10 years. This pattern does evidence a desire on the part of
the parties to deal with each other in the broadest possible unit in the Twin
Cities area. In establishing bargaining units , the Board has held that a
single-location unit in a multi- location enterprise is presumptively
appropriate unless there has been a bargaining history in a more
comprehensive unit or functional integration of such a sufficient degree to
obliterate the separate identity of a single location . Haag Drug Company,
Inc , 169 NLRB No. I 1 While the instant case does not present the
question of whether a single-store unit or a multi -store unit is appropriate
but rather the question of whether or not employees at a subsequently
established location can be assumed into an existing multi-store unit
without their consent, the factors considered in determining these two
questions are very similar In a like circumstance the Board concluded that
whether a contract could be extended to cover employees of a subsequently
established operation without their consent was only for the Board to
decide Beacon Photo Service, Inc, 163 NLRB No 98 Only where the
subsequently established operation is an accretion to an existing unit will
the Board permit a contract to bar a petition Even though a contract
covering the existing unit may exist in this case , it will not bar the instant
petition if the St . Anthony store is not an accretion to the existing unit.
Based on the entire record , including the fact that the store involved
herein has only recently opened, has separate immediate supervision, is
staffed with new employees who very infrequently interchange with other
Foodtown employees , was established with new equipment and a new
inventory of products , is separately rated on its performance and is owned
by a separate corporation , I conclude that it is a separate economic unit
and not an accretion to the existing contract unit Super Markets General
Corporation , 170 NLRB No 61, Beacon Photo Service , Inc., supra As
noted above, the Union alternatively requests that this matter be deferred
pending the outcome of a pending arbitration case However , even if an
arbitrator were to conclude that the agreement applied to the St . Anthony
store, the Board has held that unless there is accretion , the contract cannot
serve as a bar Therefore , in view of my decision above regarding accretion
herein, I see no necessity to await the outcome of arbitration.
'The unit is in accord with the agreement of the parties
3An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
within seven (7) days of the date of this Decision and Direction of Election.
The Regional Director shall make the list available to all parties to the
election . In order to be timely filed, such list must be received in the
Regional Office , 316 Federal Building , 110 South Fourth Street,
Minneapolis , Minnesota 55401, on or before September 19, 1968. Under
Board directives , no extension of time to file this list may be granted
except in extraordinary circumstances, nor shall the filing of a request for
review operate to stay the filing of such list Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed Excelsior Underwear Inc., 156 NLRB 1236
I