Warehouse Markets, Inc.

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