Community Market, Inc.

4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Community Market, Inc. and Local Union 1116, Retail Clerks International Association, AFL-CIO, and Local Union 12, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO Strooza's Super Market and Local Union 1116, Retail Clerks International Association, AFL-CIO and Local Union 12, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Cases 18-CA-2704 and 18-CA-2705' October 3, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On July 10, 1969, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceedings, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent Community Market, Inc. filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial caminer's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations. 'As no exceptions were filed in Case 18-CA-2705 (originally consolidated for hearing with Case 18-CA-2704), we adopt the Trial Examiner's findings, conclusions, and recommendations therein. 'We agree with and adopt the Trial Examiner's finding that Respondent, Community Market, Inc., violated Section 8(a)(5) and (I) of the Act by refusing to execute the collective-bargaining agreement reached between the Union and the multiemployer association, of which it was a member. In doing so, however, we find that a proper request was made upon Community Market, Inc. to sign said agreement on the basis of the record evidence showing that after agreement had been reached and specific language adopted, the Unions prepared copies of the contract and submitted them to Mr. Mundt, the Association's bargaining agent, with the understanding that Mundt would distribute them for signature by the employer members. We find that Mundt's presentation of the contracts to the employer members, on behalf of the Unions, requesting their execution, constituted a proper "request" within the meaning of Section 8(d) of the Act. Moreover, in agreement with the Trial Examiner, we conclude that Section 10(b) does not bar the unfair labor practice finding made herein. We reach this conclusion, not on grounds that Community Market, Inc. has failed to show a refusal to sign the agreement before the 10(b) cutoff date, but rather on grounds that this Respondent did not affirmatively indicate it would not sign the agreement until its attempt to withdraw from the Association in July or August 1968, dates well within the 10(b) period. Cf. N.L.R.B. v. Strong, 386 F.2d 929 (C.A. 9), cert. denied 390 U.S. 920, ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondents, Community Market, Inc., Duluth, Minnesota, and Strooza's Super Market, Superior, Wisconsin, their respective officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: These cases were heard at Duluth, Minnesota, on April 22, 1969, pursuant to charges filed on December 6, 1968, and complaints and an order consolidating cases, issued February 18, 1969. The complaints allege that Respondents Community Market, Inc., and Strooza's Super Market, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, have refused to sign collective-bargaining agreements entered into on or about May 22, 1968, by the charging Unions and Area Retail Grocers Association, herein called the Association. All parties presented oral argument at the hearing and the General Counsel, the Union and Respondent Community have also filed briefs.' Upon the entire record, and my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENTS Strooza's Super Market, a Wisconsin corporation, is engaged in Superior, Wisconsin, and Community Market, Inc., a Minnesota corporation , is engaged in Duluth, Minnesota, in the retail grocery business . In the year preceding the issuance of the complaints , each respondent had gross annual sales over $500,000 and purchased goods valued at over $20,000 from out-of-State sources. I find that Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATIONS INVOLVED Local Union 1116, Retail Clerks International Association, AFL-CIO, and Local Union 12, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein referred to as the Unions, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of Events The Association and the Unions were parties to collective-bargaining agreements effective April 15, 1965, to April 15, 1968. The Association was represented in the 1965 contract negotiations by Attorney Daniel Mundt, 'The Chief Trial Examiner denied Respondent Strooza's motion to file a brief out of time. 179 NLRB No. 2 COMMUNITY MARKET, INC. who received bargaining authorizations from the Association's board of directors, its policy committee, and each member of the Association. Mundt met regularly with the policy committee, kept it informed of the progress of the negotiations, and submitted any "settlement" reached with the negotiators for the Unions to it for approval. The members of the Association signed individual copies of the contracts agreed upon with the Unions. The Association again selected Mundt in October or November 1967 to negotiate the 1968 contracts with the Unions. Mundt and the Association's secretary, Maurice Gilleland, selected the policy committee, which included Vice President Thomas Strooza of Strooza's Super Market. The Respondents signed copies of the following authorization form which Mundt sent to each member of the Association: Authorization Form I hereby authorize McCabe, Van Evera, Mundt, Koskinen and Clure in the person of Daniel H. Mundt, to represent me in the negotiations with the Retail Clerks Union and also with the Butchers Union for the 1968 negotiations. I understand that this authorization includes the authority to negotiate the necessary changes in language and cost items with respect to the labor contracts involving these unions. We further represent that we have the following employees on a part time and full time basis covered by contract with Retails Clerks 1116, and Meat Cutters and Butchers Local 12. Retail Clerks Contract: Full time employees Part time employees Butchers Contract: Full time employees Part time employees We agree to share the costs and expenses of negotiations and legal work on a prorata basis. The 1965 contracts contained a clause that employees shall not work on Sundays. Early in the 1968 contract negotiations, the Union negotiators proposed a ban on Sunday operation on the ground that some store operators "were using their family to operate on Sunday" and so took work away from the Unions' membership and encouraged other employers to operate on Sunday. The Union's Sunday closing provisions was approved by the Association's policy committee on April 30, 1968, and, on May 22, it voted to accept contracts proposed by the Unions. E. J. Gajewski, principal officer of Community Market, attended this meeting and objected to the Sunday closing provision. Gajewski's attorney, Conrad Fredin, also attended the meeting and, sometime before Gajewski's arrival at the meeting, protested that Mundt did not have the authority to bargain for Gajewski on Sunday closing of his store. On May 23 or 24, Mundt advised the Unions that the Association had accepted their contract proposals. Mundt and the union negotiators thereafter worked out the precise wording of the contracts and Mundt invited the Association's members to a meeting at the Hotel Duluth. Mundt explained the contract changes at the meeting and distributed for signature copies of the contracts prepared by the Unions. Thomas Strooza testified that he left the meeting when contracts were distributed for signature. Strooza further testified that he received copies of the 1968 Meat Cutters and Retail Clerks contracts by mail and that the Association's secretary, Maurice Gilleland, "was around with one too, probably sometime in June." 5 Community Market resigned from the Association in July or August 1968. It had been a member for 10 or more years. In November 1968, Secretary-Treasurer La Flamme of the Meat Cutters told Thomas Strooza that the Union was going to set the first Sunday in January 1969 as a "deadline" for Sunday closing of the store. Strooza's Super Market, which had paid Association dues in 1967 and 1968, ceased doing so in January 1969.2 B. Analysis and Conclusions Section 8(d) of the Act expressly defines the duty "to bargain collectively" to include "the execution of a written contract incorporating any agreement reached if requested by [the other] party." See also, H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 526. This same requirement applies to a multiemployer agreement reached with a union by an authorized representative of the employer, acting on his behalf. N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245, 247 (C.A. 2), cert. denied 385 U.S. 1005; N.L.R.B. v. Jeffries Banknote Company, 281 F.2d 893, 896 (C.A. 9). Where the employer attempts to withdraw from the multiemployer unit before such agreement is reached, his bargaining obligation depends on a determination whether the attempted withdrawal was timely. And absent unusual circumstances, an attempted withdrawal following the commencement of negotiations on a multiemployer basis is not timely. See N.L.R.B. v. Spun-Jee Corporation, 385 F.2d 379, 381-382 (C.A. 2); Retail Associates, Inc., 120 NLRB 388, 395. The Association has no formal authority to bargain collectively for its members. However, the record shows that the Association's board of directors selected Attorney Mundt to conduct the 1965 contract negotiations with the Unions, that Mundt reported back to a "policy committee" of Association members, and that, upon negotiation of contracts approved by the policy committee, each member of the Association signed separate but identical copies of the contracts. The Association followed the same bargaining procedure for the 1968 contract negotiations - selection of Mundt as negotiator, formation of a policy committee to consider and pass upon contract proposals as reported by Mundt, and the signing by members of separate but identical copies of the 1968 contracts negotiated with the Unions. I find from these facts that the members of the Association "clearly evinced an intention to engage in multi-employer bargaining." N.L.R.B. v. Dover Tavern Owners' Association, 412 F.2d 725 (C.A. 3). I find no merit in Respondents' contention they they did not authorize the Association to bargain in their behalf. They acquiesced in the Association's bargaining procedure, including the selection of Mundt as a bargaining negotiator, they never advised the Unions of any limitations on the authority of the Association to represent them,' and they made no effort to bargain in their own behalf. Having committed themselves to bargain on a multiemployer basis, Respondents were not free to withdraw from such bargaining once negotiations began. I find that Respondents did not timely withdraw from the Association and that they were obligated to sign the agreements reached by the Association with the Unions. 'Strooza's Super Market, upon joining the Association in 1967, reduced its Sunday operations from 8 a.m.-6 p.m. to 8 a.m.-1 p.m. because of the 1965 contract provision barring Sunday work by employees. As the "Authorization Form" signed by Respondents authorized Mundt 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows no direct request by the Unions that Respondents sign the 1968 contracts. It is undisputed, however, that Respondents refused to sign the 1968 contracts because they contained a Sunday closing provision and that they have continued to operate on Sunday.' I find in these circumstances, as such action would have been an "exercise in futility," that the Unions were not obliged to seek Respondents' signatures to the contracts. The John J. Corbett Press, Inc., 163 NLRB No. 26; Service Roofing Company, 173 NLRB No. 44. I find, rather, since Respondents' attempted withdrawals from the bargaining unit were ineffective, that it was incumbent upon Respondents to take steps to sign any agreement reached. Idem. Respondents contend that any refusal on their part to sign the 1968 contracts occurred more than 6 months before the Unions filed charges against them on December 6, 1968, and hence that the present proceeding is barred by Section 10(b) of the Act.' Respondents are under a continuing obligation to sign the 1968 contracts, and I have found that the Unions are not required to make a formal demand upon them to sign the contracts because such a demand would be futile. I find, accordingly, that the charges properly are based upon Respondents' continuing violation of its statutory obligation to sign the contracts, and therefore that they support the complaints whether or not Respondents refused to sign the contracts before June 6, the Section 10(b) cutoff date. Cf. N.L.R.B. v. Strong, 386 F.2d 929 (C.A. 9), cert. denied 390 U.S. 920. In any event, as it is well settled that Section 10(b) "was meant to be and is no more than an ordinary statute of limitations" which must be affirmatively raised,' the burden was on Respondents to establish that they refused to sign the contracts before June 6. The evidence introduced by the General Counsel showed that the Association's policy committee voted on May 22 to accept contracts proposed by the Unions, that Mundt and the union negotiators thereafter worked out the exact wording of the contracts, and that copies of the contracts prepared by the Unions were distributed to members of the Association at a meeting called by Mundt to explain the contract changes. Thomas Strooza testified that he left this meeting when contracts were distributed for signature, that he received copies of the contracts by mail, and that Secretary Gilleland of the Association was "around" with contracts "probably sometime in June." Respondent Community offered no evidence on the tender of contracts to it for signature. As the record fails to show the dates of events after May 22, 1 find that Respondents have not established that their refusals to sign the 1968 contracts occurred more than 6 months before the filing of the to negotiate changes in the 1965 contracts currently binding upon all members of the Association, and provided that the signatory employer would pay a pro-rata share of the costs and expenses of the negotiations, Respondents could hardly have failed to understand that Mundt would bargain for the Association on a multi-employer basis in 1968 as he had in 1965. Even assuming that the authorization form reserved to each member of the Association the right to accept or reject any agreement negotiated by Mundt with the Unions , it was ineffective against the Unions as they were entitled to rely upon Mundt's apparent authority to bargain for the Association on a multi-employer basis . Cf. Homer Gale and Howard Gale, Co-partners , d/b/a American Sign & Neon Company, 176 NLRB No. 147. Community's reliance on Retail Clerks Union , No. 1550 v. N.L.R.B., 330 F.2d 210 (C.A. D.C.), affirming 141 NLRB 564, is therefore misplaced, as the employer in that case notified the union at the outset of bargaining negotiations that he would not be bound by group action on a pension plan. 'For the propriety of bargaining over limitations on store hours, see Local 189. Meat Cutters v. Jewel Tea Co., 381 U.S. 676. charges against them on December 6. Strooza contended at the hearing that its otherwise untimely withdrawal from the Association was justified because Sunday hours are essential to its profitable operation and it did not understand when it joined the Association in 1967 or thereafter that the Association could bind it to Sunday closing. Strooza, however, upon joining the Association, signed the 1965 union contracts, followed the provision that employees were not to work on Sundays, and, in consequence, reduced its Sunday hours from l0 to 5 hours. Vice President Thomas Strooza, as a member of the Association's policy committee for the 1968 negotiations, said he would go along with the other members when the committee voted on April 30 to accept the Sunday closing and he did not object when the committee voted to accept the Union's contract proposals, including the Sunday closing provision, on May 22. Strooza may believe that it needs Sunday operation,' but such belief does not of itself warrant Strooza's withdrawal from the Association. As stated in N.L.R.B. v. Tulsa Sheet Metal Works, Inc. 367 F. 2d 55, 58 (C. A. 10). To allow withdrawal from the multi-employer bargaining unit because negotiations are apprehended by one of the group members to be progressing toward an agreement which would be economically burdensome insofar as it is concerned would be disruptive to the stability of the group collective bargaining process. As the Trial Examiner observed, "Some responsibility must rest upon the employer who invokes the advantages of group bargaining to assess and assume the responsibility and limitations inherent therein." I find that Strooza has not shown unusual circumstances justifying its belated attempt to withdraw from the Association. Cf. Spun-Jee Corp., 171 NLRB No. 64. On the basis of the foregoing, I find that multi-employer units consisting of the grocery and produce employees, and the meat department employees, of the members of the Association, including Respondents, are appropriate for collective bargaining purposes. I further find that the Retail Clerks and Meat Cutters were at all material times and still are respectively, the exclusive statutory bargaining representatives of the grocery and produce employees, and of the meat department employees, in the foregoing units. Accordingly, I find and conclude that Respondents Community and Strooza, by their failure to sign the 1968 contracts between the Association and the Unions, have refused to bargain collectively in violation of Section 8(a)(5) and 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 'Section 10(b) provides in pertinent part that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board." 'A. H. Belo Corp. v. N.L.R. B., 411 F.2d 959 (C.A. 5). 'Delores Botten, a Strooza officer, testified that Strooza's gross sales and Sunday sales were $874,165.13 and $159,691. 96, respectively, in fiscal 1967 when Strooza operated 10 hours on Sunday, and dropped to $842,533. 34 and $111 ,376.66 in fiscal 1968 when Strooza operated 5 hours on Sunday . She further testified that Strooza's percentage of net income to total sales dropped from 1 percent in fiscal 1967 to .2 of I percent in fiscal 1968. COMMUNITY MARKET, INC. 3. By their failure to sign the 1968 agreements negotiated between the Unions and the Association, Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(5) and (7) of the Act. THE REMEDY The order I recommend the Board issue, as set forth below, requires Respondents to cease and desist from further such violations. However, I do not consider that those engaged in are of such a character as to warrant a broad injunctive provision under Section 8(a)(1) of the Act. As affirmative action to remedy Respondents' unfair labor practices on lines necessary to effectuate the Act's policies, the order I recommend requires Respondents forthwith to sign the 1968 agreements entered into between the Unions and the Association, to give retroactive effect to the terms and conditions of these agreements, and to make whole their employees for any loss of wages or other employment benefits they may have suffered as a result of Respondents' failure or refusal to sign those agreements. Backpay, if any, shall be computed, and shall bear interest in accordance with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. 7 timecards, personnel records and reports, and all other records necessary to determine the amount due as backpay and other benefits for employees. (d) Post at their places of business, copies of the notice attached hereto and marked "Appendix."' Copies of said notice, on forms provided for each Respondent by the Regional Director for Region 18, shall, after being signed by their representatives, be posted by Respondents immediately upon receipt thereof and maintained by them for 60 consecutive days thereafter in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 18, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps have been taken to comply herewith.' 'In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "A Decision and Order." 'In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." RECOMMENDED ORDER Respondents Community Market, Inc., and Strooza's Super Market, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing or refusing to sign and abide by the contracts, effective April 15, 1968, between Area Retail Grocers Association and Local Union 1116, Retail Clerks International Association, AFL-CIO, and Local Union 12, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to join or assist the foregoing Unions, or any other labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Forthwith sign the contracts described in paragraph 1(a) of the Order. (b) Upon execution of the foregoing contracts, give retroactive effect to the terms and conditions thereof, including but not limited to the provisions relating to wages and other employment benefits, and, in the manner set forth in the section of this Decision and Order entitled "The Remedy," make whole their employees for any losses they may have suffered by reason of their failure to refusal to sign the contract. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL forthwith sign the contracts effective April 15, 1968, between Area Retail Grocers Association and Local 1116, Retail Clerks International Union, AFL-CIO, and Local Union 12, Amalgamated Meat Cutters and Butchers Workmen of North America, AFL-CIO. WE WILL give retroactive effect to the terms and conditions of said contracts, including but not limited to the provisions relating to wages and other employment benefits, and we shall make whole our employees for any losses they may have suffered by reason of our refusal to sign the said contract. WE WILL NOT continue to refuse to sign the said contracts or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations , to join or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. COMMUNITY MARKET, INC. [or] STROOZA'S SUPER MARKET (Employer) 8 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Representative) (Title) or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 316 Federal This notice must remain posted for 60 consecutive days Building, 110 South 4th Street, Minneapolis, Minnesota from the date of posting and must not be altered, defaced, 55401, Telephone 612-725-2611.