Retail Merchants Association of Terre Haute

r, In the Matter of RETAIL MERCHANTS ASSOCIATION OF TERRE HAUTE, INDIANA, EMPLOYER AND PETITIONER and RETAIL CLERKS INTERNA- TIONAL ASSOCIATION, LOCAL ' UNION No. 983, AFL, UNION Case No. 35-RM-10.Decided April 25, 1949 DECISION, AND ORDER Upon a petition duly filed, a hearing was held before Harold V. Carey, a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. The motion made by the Union to dismiss the petition is granted for the reasons set forth in paragraph 3. - Upon the entire record in the case, the Board 1 finds : 1. The Employer 2 is an association of 22 retail stores in Terre Haute, Indiana. In the aggregate, the member stores annually pur- chase in excess of $7,940,000 worth of goods of which more than 75 percent is purchased outside the State of Indiana. Only 2 members annually purchase less than $35,000 worth of goods, of which 100 percent is purchased outside of Indiana. All the members make a small proportion of their sales outside Indiana. Upon the basis of the foregoing facts, we find, contrary to the Union's contention, that the Employer is engaged in commerce within the meaning of the National Labor Relations Act.3 2. Retail Clerks International Association, Local Union No. 983, AFL, herein called the Union, is a labor organization claiming to represent only the employees of the members of the Employer. ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Houston and Murdock]. 2 The Association has power under its constitution to negotiate labor contracts binding upon its members. It is clear that the Association possesses sufficient authority to engage in collective bargaining on behalf of its members to be deemed an employer within the meaning of Section 2 (2) of the Act. 3 Matter of Retail Employee Relations Commission, 80 N. L. It. B. 1478. 83 N. L. R. B., No. 14. 112 RETAIL MERCHANTS ASSOCIATION OF TERRE HAUTE, IND. 113 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer requests an association-wide unit of all nonsuper- visory employees engaged in selling merchandise directly to customers, contending that this unit is warranted by: (1) the long history of multiple-employer bargaining among the city retailers and (2) the provision in its constitution authorizing the Employer to negotiate labor contracts for its members. The Union disclaims any interest in representing employees within that unit,-' which it contends is in- appropriate. Since 1936, there have been three different retail employers' asso- ciations in Terre Haute, which have negotiated hours, minimum wages, and grievance procedures, with the Union through negotiating committees.' The majority of substantive terms of collective bar- gaining, such as working conditions, employees benefit programs, ac- tual wages, bonuses, percentage commissions, etc., have been deter- mined by negotiation between the Union and the individual stores, or in some cases have not been the subject of bargaining. The Employer was organized in May 1948, allegedly as a successor to the Retail Merchants Division of the Chamber of Commerce. Its membership, however, includes only 22 of the 57 unionized retail employers within Terre Haute, although 40 or more had been mem- bers of its predecessor. The 22 members include individually and corporately owned businesses, some local and others members of State or national chains.6 The members are further diversified in their operations, dealing in furniture, shoes, jewelry, women's ap- parel, and department goods. The present contract relates only to hours, minimum wages, and grievance procedures,7 and the Employer admits that consideration of other substantive terms on an associa- tion-wide basis has been precluded by the diverse practices and re- quirements of the member employers. ' Consistently with its disclaimer, the Union met with the Employer "as agent" for the employer members, negotiated the unsigned contract currently in operation , ratified the terms thereof, but refused to sign the contract unless it was signed individually by the members. See infra, note 15. 5 Retail Merchants Association (1936-1942 ) ; The Retail Merchants Division of the Chamber of Commerce of Terre Haute (1942-1948) ; The Retail Merchants Association of Terre Haute, the Petitioner ( 1948- ). In 1947, the Union negotiated approximately 17 contracts with individual Terre Haute retail store employers and 40 contracts through the negotiating committee of the Retail Merchants Division of the Chamber of Commerce, for the unionized members of that group. Many labor policies of the members of the chains are not locally determined. ° See supra, note 4. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following factors militate against the requested unit : 8 (1) the absence of any history of complete collective bargaining; 9 (2) the absence of such bargaining as we have found contributes to the stabili- zation of labor relations; 10 (3) the failure of the Employer to include within its membership the majority of unionized retail stores within the area, or even of its predecessor; 11 (4) the divergent employment and working conditions of the various employees.12 The fact that the employers have designated the association to ful- fill, in whole or part, their obligation of bargaining with the represent- ative of their employees, is not determinative of the propriety of the requested unit.13 Although employers have the statutory right to designate their bargaining representative,1¢ they cannot, by such designation alone, determine the unit appropriate for purposes of col- lective bargaining. Under the circumstances, we consider the requested association- wide unit inappropriate, and we shall therefore dismiss the petition 15 ORDER Upon the basis of the entire record in this case, the National Labor Relations Board hereby orders that the .petition filed in the instant matter be, and it hereby is, dismissed. . 8 See Matter of Associated Shoe Industries of Southeastern Massachusetts , Inc., et at., 81 N. L. R. B. 224. 9 See Matter of Norcal Packing Company, et at., 76 N. L. It. B. 254; cf. Matter of Wirts Distributing Company, et at., 82 N. L . R. B. 669 . As the earlier contracts have fallen far short of complete collective bargaining contracts , they do not constitute a history of collective bargaining which can be given weight . See Matter of Stanolind, Oil & Gas Co., 67 N. L. R . B. 375, and 58 N. L. It. B. 412; Matter of Standard Oil Company of Indiana, 56 N. L . It. B. 1101, 1103 ; Matter of Corn Products Refining Co., 52 N. L. It. B. 1324. 10 See supra, note 9. Compare Matter of Sterling Pulp & Paper Co., 77 N. L. It. B. 63. n See Matter of Wirts Distributing Company, et at., supra. 12 See supra, note 8. Compare Matter of New Bedford Cotton Mfgrs' Assn., 57 N. L. It. B. 1345. 13 See Matter of W. W. Fruit Company, 60 N. L. R. B. 164, fn . 3, and Matter of Murray Motor Transport, 81 N. L. It. B. 93. 14 Section 8(b) (1) (B ) of the Act as amended. 15 As we are dismissing the petition on the ground that the unit requested is inappro- priate, we need not consider whether any question concerning representation exists when a union disclaims representation within a multiple -employer unit claimed to be appropriate by an employer , but claims to represent a majority of the employees of the individual employers within the multiple-employer unit. See however , Matter of York Motor Express Company, 82 N. L. R. B . 801; Matter of Standard -Coosa-Thatcher Company, 80 N. L. It. B. 50.