Rock Springs Retail Merchants Association

ROCK SPRINGS RETAIL MERCHANTS ASSN. 261 Rock Springs Retail Merchants Association and Retail Clerks International Association, Local 102, AFL- CIO, Petitioner. Case 27-RC-3877 January 29, 1971 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, BROWN , AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held at Rock Springs, Wyoming, before Allison E. Nutt, Hearing Officer of the National Labor Rela- tions Board.' Following the hearing and pursuant to Section 102.67 of the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director for Region 27 transferred this case to the Board for decision. A brief has been filed with the Board by Petitioner. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this case, the Board 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 claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. Petitioner in its original petition sought a unit consisting of all employees employed by 31 named members of the Association,' excluding meat depart- ment employees and statutory exclusions. Petitioner, at the hearing and in its brief, alternatively seeks a unit limited to the employees of the five member- employers who actually signed a 1968 collective-bar- gaining agreement with District 50,3 with the same ' International Union of District 50, Allied and Technical Workers, herein called District 50, had a collective-bargaining agreement with certain mem- ber-employers of the Association which expired on June 30, 1970. Although duly served with notice of hearing, District 50 did not enter an appearance at the hearing or otherwise express interest in continuing to represent em- plo2yees employed by member-employers within the appropriate unit. Prior to the hearing, the Regional Director ascertained that 12 of the 43 employers named in the petition were not part of the multiemployer bargain- mp group and dismissed the petition as it applied to them. The five signatories to the 1968 agreement are C A. West Company, F. W. Woolworth , Union Merchantile & Supply Co., Del Duce Drug, Inc, and Safeway Store , Incorporated . All are retail merchants doing business in Rock Springs. exclusions as above. That limited unit was earlier sought by Petitioner in Case 27-RC-3844, decided June 5, 1970.4 The parties have stipulated that the record in that proceeding be made a part of the record in the instant proceeding. The Employer's position is that the only appropriate unit is one encompassing all of the remaining 31 member-employers. The Employer is an informal association of over 40 retail merchants doing business in Rock Springs, Wy- oming. There are no formal documents setting forth requirements or obligations of membership, which is open to any retailer in Rock Springs. The Association does not collect dues or fees and it has no officers other than a chairman. The chairman of the Associa- tion, presently LeRoy Russell, is designated by the Rock Springs Chamber of Commerce. Russell is also a member of the chamber's board of directors. How- ever, it was stated that chamber of commerce mem- bership is not a prerequisite to membership in the Association. TheAssociation sponsors various communitywide merchandising programs and, through committees, has for many years negotiated collective-bargaining agreements. There is no evidence in the record estab- lishing that association members agree in advance to. be bound by the results of the Association's bargain- ing. In this regard, Chairman Russell, himself the manager of a retail shoe store, testified that he had not seen the most recent collective-bargaining agreement until after it had expired and that he did not consider himself, as an employer-member of the Association, bound to the agreement as he did not sign it. The only member-employers to sign the 1968 agreement with District 50 were the five employers who actually nego- tiated the agreement.' Moreover, only these same five employers have consistently participated in negotia- tions for, and have subsequently signed bargaining agreements with, District 50 throughout the 1960's. There is no evidence that nonsigners were regularly asked to sign or were provided with copies of the agreements, although various association members have sporadically signed agreements prior to the 1968 agreement. We have often addressed ourselves to the standard to be applied in assessing the existence of a multiem- ployer bargaining unit. Whether such a unit functions within the framework of an association or under an informal understanding between otherwise unrelated employers, the Board looks for sufficient indication from the history of the bargaining relationship be- tween the employers and the union of intent to be The Regional Director in that case dismissed the petition, finding, in part, that there was insufficient evidence to determine the scope of any possibly appropriate multiemployer unit The 1968 agreement states, in its preamble, that it is entered into by "the undersigned Retail Merchants of Rock Springs ... " and District 50. 188 NLRB No. 41 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD governed by joint action .6 It is clear from the forego- ing recital of the facts in this case that an association- wide unit does not exist, and that only the five signatories to the 1968 agreement have manifested, by their past and current participation in negotiations and their mutual acknowledgement of the agreement, an unequivocal intention to be bound by group rather than individual bargaining. On the other hand, the nonsignatory members of the Association apparently considered the agreement produced by the efforts of the five signatories to be no more than a convenience and binding upon them only after individual post hoc examination. By their behavior , it appears that the nonsignatories did not agree, at the outset, to be bound by the bargaining results of the negotiating committee and have not since executed the "group" agreement with sufficient regularity to permit an in- ference of intent to be bound. Accordingly, as alterna- tively requested by Petitioner, we shall direct an election in a multiemployer unit comprised of the em- ployees of the five employers who signed the 1968 and earlier agreements, as to whom we find that a true 6 See Weyerhaeuser Company, 166 NLRB 299, 300 ; The Kroger Co, 148 NLRB 569; Van Eerden Company, etc., 154 NLRB 496. See, also, Council of Bagel and Bialy Bakeries, et al, 175 NLRB No. 148 multiemployer group has been established. On the basis of the foregoing and the entire record in this case, we find the following employees consti- tute a unit appropriate for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All employees of C. A. West Company, F. W. Woolworth, Union Mercantile & Supply Co., Del Duce Drug, Inc., and Safeway Stores, Incor- porated, Rock Springs, Wyoming, excluding meat department employees, store managers, su- pervisors, guards, and watchmen as defined in the Act. [Direction of Election 7 8 omitted from publication.] 7 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote , all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc., 156 NLRB 1236; N.LR B v. Wyman-Gordon Co., 394 U. S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 27 within 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 . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. 6 Unless Distract 50 makes application to the Regional Director for Region 27 within 10 days from the date of this Decision , we shall not accord District 50 a place on the ballot