Albertson's Inc.

338 307 NLRB No. 51 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The unit consists of: All customer service employees (also called courtesy booth em- ployees) employed by the Employer at the Northwest Boulevard store, the Pines Road store, and the Hastings store, located in Spokane, Washington, but excluding all other employees, office clericals, guards and supervisors as defined in the Act. 2 We grant the Employer’s motion, to which there are no objec- tions, to make the arbitrator’s opinion and award part of the record. The parties limited the question before the arbitrator to whether the Employer must pay Appendix A rates. The arbitrator did not decide what the proper rate was because he concluded that issue was not presented to him. Albertson’s, Inc. and Dorothy Robinson, Petitioner and United Food and Commercial Workers Union Local No. 1439, chartered by United Food and Commercial Workers International Union, AFL–CIO, CLC. Case 19–RD–2920 April 28, 1992 DECISION ON REVIEW AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH Pursuant to a petition for decertification filed on Oc- tober 24, 1990, by Dorothy Robinson, an individual (the Petitioner), on February 6, 1991, the Regional Di- rector for Region 19 of the National Labor Relations Board issued a Decision and Order dismissing the peti- tion for a decertification election in a unit of customer service employees at three stores of Albertson’s, Inc. (the Employer).1 Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Employer filed a timely request for review of the Regional Director’s decision. On May 3, 1991, the Board granted the re- quest for review, finding that it raised substantial issues warranting review. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The petition seeks a decertification election in a unit of all customer service employees, also known as cour- tesy booth employees, employed by the Employer at three of its seven stores in the Spokane, Washington area. The Union contends that the certified unit has been merged into a larger, previously existing unit of grocery, produce, bakery sales, delicatessen, and gen- eral merchandise employees employed by the Em- ployer in its Spokane stores. The most recent contract between the Employer and the Union for the larger unit had a term of October 4, 1987, to October 6, 1990. Following the August 10, 1989 certification of the unit of customer service employees, the Employer and the Union exchanged correspondence with regard to the merging of the newly certified unit into the larger preexisting unit. By letter dated November 28, 1989, the Employer proposed a merger of the units, and stat- ed its intention to apply to the customer service em- ployees the contractual wage rates stated in appendix D of the contract. The parties met on December 5, 1989, to discuss the merger and the Union (apparently objecting to the proposed wage rate) allegedly threat- ened a strike. The Employer filed a grievance with re- spect to this threat. By letter dated December 12, 1989, the parties agreed to a merger of the units. The parties disagreed, however, as to the rate the customer service employees should be paid. The Union contended that the higher wage scale set forth in appendix A of the contract rather than the rate in appendix D was appli- cable to those employees. On August 22, 1990, the parties agreed to submit the issue of the appropriate wage rates to an arbitrator and the Employer agreed to withdraw its grievance concerning the threat. There- after, in a June 27, 1991 opinion Arbitrator Ross R. Runkel ruled that the Employer’s failure to pay appen- dix A rates did not violate the collective-bargaining agreement.2 Undisputed testimony establishes that the Employer has applied all the other terms and conditions of em- ployment of the collective-bargaining agreement to the customer service employees, and has been making trust fund payments, including pension fund payments, on their behalf since 1989. The Regional Director dismissed the petition be- cause he found that there had been a merger of units and, accordingly, the petition for an election in the smaller, recently certified unit of customer service em- ployees was inconsistent with the Board’s longstanding policy as to the appropriate unit in a decertification election must be coextensive with the currently recog- nized and established bargaining unit. Recently in West Lawrence Care Center, 305 NLRB 894 (1991), we found that the unusual circumstances of that case brought it within the exception to the aforementioned policy. The unit in West Lawrence had been a single-employer unit for approximately 15 years. For less than a year prior to the filing of the de- certification petition, the unit was included in what purported to be a multiemployer unit. In directing an election in the single-employer unit, we balanced the interest in stable collective-bargaining relationships with the interest in assuring freedom of choice for unit employees. We struck the balance in West Lawrence in favor of freedom of choice because of the comparative length of time in which the employees had been a sin- gle-employer unit (15 years) versus the time they were actually part of the multiemployer unit (9 months). In doing so, we distinguished Wisconsin Bell, 283 NLRB 1165 (1987), where the Board had dismissed a petition for an election in a smaller, previous unit. There, the smaller unit existed for only 11 days prior to the merg- 339 ALBERTSON’S, INC. 3 For the reasons noted in his dissent in West Lawrence, Member Devaney would have dismissed the petition there based on Wis- consin Bell. As the result here is consistent with that position, Mem- ber Devaney concurs in the result here. er into the larger unit. The larger or merged unit func- tioned thereafter for more than a year and a half before the petition was filed. The instant case is factually similar to Wisconsin Bell. The customer service unit here was in existence for only 4 months before its merger into the larger unit, and that merged unit functioned for 10 months before the instant petition was filed. In contrast to West Lawrence, where the smaller, single-employer unit was merged into an alleged multiemployer unit, the larger unit here like the larger unit in Wisconsin Bell is composed entirely of the Employer’s employ- ees. The relative duration of the units was not the only factor we considered in striking the balance in West Lawrence. As we stressed in West Lawrence, the facts there were ‘‘unusual to say the least.’’ Thus, notwith- standing the appearance of a multiemployer bargaining unit, the parties actually bargained on a ‘‘co- ordinated’’ rather than multiemployer basis. In con- trast, the instant case, like Wisconsin Bell, involves nothing less than a full merger of the units. Indeed, here the parties agreed on merger and bargained con- sistent with that agreement. The larger unit here is composed entirely of the Em- ployer’s employees and has existed longer than the smaller unit. Thus, where the balance in West Law- rence was struck in favor of the smaller unit with its 15-year longer history, the balance here favors the merged unit with its longer collective-bargaining his- tory in much the same way and for the same reasons as it favored the merged unit and its history in Wis- consin Bell. Accordingly, as the current larger unit has existed longer than the smaller unit, as there is a fully agreed- upon merger of the units, and as there is no significant history of bargaining on a narrower basis, we find that the balance here, like the balance in Wisconsin Bell, must be struck in favor of the current larger unit.3 We find that the larger, currently recognized unit contract bars the processing of this petition and, accordingly, we shall dismiss this petition. ORDER The decision of the Regional Director is affirmed and the petition is dismissed.