Great Atlantic & Pacific Tea Co.

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Great Atlantic & Pacific Tea Company and Retail Clerks Union, Local No. 396, AFL-CIO, Petition- er. Great Atlantic & Pacific Tea Company and Chauf- feurs, Teamsters & Helpers Local Union No. 238, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Petitioner. Cases 18-RC-8568 and 18-RC-8580 June 26, 1972 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, these proceedings were consolidated and a hearing was held before Hearing Officer Louis V. Cimmino of the National Labor Relations Board. Thereafter, the Petitioners filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding, 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 parties stipulated, and we find, that the Petitioners are labor organizations within the mean- ing of the Act who claim to represent certain employees of the Employer. 3. The parties agree, and we find, that a question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act, at the Employer's retail food store at 180 Collins' Road, N.E., Cedar Rapids, Iowa. However, the existence of a question affecting commerce concerning the representation of employees of the Employer at the Employer's retail food store at 2733 16th Avenue, Cedar Rapids, Iowa, is in dispute. In January 1971, the Employer began operating a store at the Collins Road location and another at ' General Extrusion Company, Inc, 121 NLRB 1165, 1168. 2 American Concrete Pipe of Hawaii, Inc, 128 NLRB 720, 721. See alsb M V Dominator, 162 NLRB 1514 9 The William J Burns International Detective Agency, Inc, 182 NLRB 16th Avenue. The following month, both Petitioners filed petitions for representation. Petitioner Retail Clerks requested a unit confined to the Collins Avenue store; Petitioner Teamsters requested a unit comprising both stores. The Retail Clerks contends that an existing collective-bargaining agreement covering the 16th Avenue store constitutes a bar to an election among the employees of that store. The contract which Retail Clerks asserts as a bar has an effective date of June 15, 1970, and expires by its terms on June 17, 1973. Retail Clerks and Central Division of Allied Supermarkets, Inc., are the parties to the contract. Subsequent to execution of the contract, Allied Supermarkets sold the store to the present Employer, which has continued to recognize Retail Clerks and has abided by the contract but has not signed it. The present Employer's operation of the store is essentially the same as that of Allied Supermarkets and the employee complement is "relatively similar to what it was prior to the acquisition." The Teamsters contends that the contract between Retail Clerks and Allied Supermarkets cannot be a bar to an immediate election in the 16th Avenue store because that contract was not assumed in writing by the Employer. This contention finds support in the long held Board view that "the assumption of the operations by a purchaser in good faith who had not bound himself to assume the bargaining agreement of the prior owner of the establishment removes the contract as a bar"' and that "Such an assumption of a prior contract by a new employer must be express and in writing." 2 On the other hand, the Retail Clerks maintains that these cases predate and are no longer viable under the Board's decision in the Burns case3 which held that a successor employer is bound to his predecessor's contract as if he were a signatory thereto. However, since the hearing in the instant case, the Supreme Court has rejected that holding which bound a successor to a contract which was not agreed to or assumed by it.4 In the circumstances, and no good reason appearing which warrants a departure there- from, we shall continue to adhere to our pre-Burns policy of requiring, for contract-bar purposes, a successor's assumption of the contract by express written agreement. Accordingly, as there was no such express written adoption of the contract in question by the Employ- er, we find no bar to a present determination of collective-bargaining representative at the 16th Ave- nue store and, therefore, that a question affecting 348 4 N LR B v Burns International Security Services, Inc., 406 U S. 272 (May 15, 1972) 197 NLRB No. 104 GREAT ATLANTIC & PACIFIC TEA COMPANY commerce exists concerning the representation of employees at that location.5 4. In accordance with the stipulation of the parties, we find that the following employees consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time grocery de- 5 Because of our disposition of this issue , we need not consider the effect of the Iowa right-to-work law upon certain provisions of the contract 6 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 L R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, 923 partment employees in the Employer's stores at 180 Collins Road, N.E. and 2733 16th Avenue, Cedar Rapids, Iowa; excluding store managers, meat department employees, professional em- ployees, guards and supervisors as defined in the Act. [Direction of Election 6 omitted from publication.] containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 18 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