Sears, Roebuck and Co.

S[ARS, RO()I:I'CK ANt) (() Sears, Roebuck and Co. and Casimer A. Matejko, Petitioner and Retail Store Employees Union, Local 876, United Food and Commercial Work- ers International Union, AFL-CIO. Case 7- RD-1677 November 5, 1980 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMB1:RS JENKINS AND PENEI I O Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Michael D. Pearson of the National Labor Relations Board. On May 21, 1980, the Regional Director for Region 7 issued a Decision and Order in the above- entitled proceeding in which he dismissed the in- stant petition on the ground that it did not specify a unit appropriate for the conduct of a decertifica- tion election. Thereafter, in accordance with Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner and the Employer each filed a timely re- quest for review of the Regional Director's deci- sion, contending that the Regional Director erred in dismissing Petitioner's petition. By telegraphic order dated July 21, 1980, the Board granted the request for review. Thereafter, the Employer and Retail Store Employees Union, Local 876, United Food and Commercial Workers International Union, AFL-CIO (hereinafter the Union), each filed a brief on review. 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 au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case, including the briefs on review, and makes the following findings: The Employer operates a number of stores in the Detroit, Michigan, metropolitan area. The Employ- er's collective-bargaining relationship with the Union in the Detroit area began in 1943, when the Board certified the Union's predecessor as the ex- clusive bargaining representative in discrete units of store employees employed at the Employer's stores on Gratiot Avenue and Grand River Avenue in Detroit. In 1945, the Employer accorded the Union's predecessor exclusive recognition as repre- sentative of the Employer's full-time employees at its Highland Park store. This bargaining relation- ship has continued to the present, with the parties reaching a succession of multistore collective-bar- gaining agreements, the last of which was effective 253 NLRB No. 25 through March 21, 1976. Between 1970 and 1977, the Employer closed both its Gratiot Avenue and Grand River Avenue stores. In May 1976, the Re- gional Director issued separate Certifications of Representative, which certified the Union as the representative of part-lime and certain previously unrepresented residual employees at the Highland Park and Grand River Avenue stores, respectively. On December 2, 1975, following a Board-con- ducted election, the Union was certified as the rep- resentative of all full-time and regular part-time selling and nonselling employees employed by the Employer at its Lincoln Park, Michigan, store (in- cluding satellite locations in Wyandotte and Wayne, Michigan, which have subsequently been closed), and was recertified on July 25, 1977, after a decertification election. In November 1976, after the Gratiot Avenue store closed but before the Grand River Aenue store closed, the Employer and the Union executed two collective-bargaining agreements. One con- tract, effective from March 23, 1976, through June 30, 1977, covered the previously represented High- land Park and Grand River Avenue employees, as well as the recently certified residual units at those locations. The other contract, effective from July 1, 1976, through June 30, 1977, covered the newly certified Lincoln Park unit. The parties held joint negotiating sessions for these two contracts. during which the Union advised the Employer that it de- sired one contract covering all three stores. The Employer demurred, stating that, while it was will- ing to hold joint negotiations to obviate duplication of negotiations, it wanted the separate contracts since it wanted to ascertain the effectiveness of cer- tain provisions concerning newly represented em- ployees. The Union acceded to the request for sep- arate contracts with a common expiration date, but stated that it intended to next negotiate one con- tract covering all represented stores. The Employ- er made a noncommittal response to the Union's statement. In 1977 the parties negotiated a single contract covering the Lincoln Park and Highland Park stores.' The Union's bargaining committee consist- ed of employee representatives from both stores, and the Union held single meetings with employees of both stores to draw up contract demands and to ratify the resulting contract. The recognition clause of the 1977 agreement lists, in series, each of the units covered by the agreement, based on the lan- guage in each of the certifications.2 The contract he i- npostr tlotcd it, (ir.£tdt Rto r At, elltl s rt prior It lilt tolrlllet:letwllr t of t c ncgltl.llltl - Althoug h g he n llll tl tlll g l 1ut-11I- Cllll i tPtII. pl l. (If t ht Fit plticr ,ll the lt ghland Park (,,rc v1a rowllted lh~ 1[he I mplol>cr mt 145. the 211 DECISIONS OF NATIONAL L.ABOR REI.ATI()NS 1()ARD applies equally to both stores, except that certain provisions apply specifically to only one unit.:' Petitioner seeks a decertification election in the Lincoln Park store. However, based on the above, the Regional Director concluded that the Lincoln Park and Highland Park units had been merged by the parties' conduct. The Regional Director found that the parties had a practice of melding separate units into a multistore unit, as demonstrated by the multistore contract for the Highland Park, Grand River Avenue, and Gratiot Avenue units and fur- ther shown by the incorporation of the Highland Park and Grand River Avenue residual unit, certi- fied in 1976, into the existing unit. The Regional Director reasoned that, although the parties did not immediately merge the Lincoln Park unit with the existing Highland Park-Grand River Avenue unit, this merger was accomplished through the execu- tion of the multistore agreement in 1977 and 3 years of unitary administration of that contract. He found that the parties' conduct outweighed testimo- ny by employer representatives that they did not intend to merge the two units. We find, contrary to the Regional Director, that an election should be directed in the Lincoln Park unit. In our view, the record does not contain "un- mistakable evidence that the parties mutually agreed to extinguish the separateness of the previ- ously recognized or certified units." 4 Initially, we note that the recognition clause contained in the 1977-80 Highland Park-Lincoln Park contract did not define the contract's coverage as one unit; rather, the clause listed separately each of the units that the contract covered, thereby indicating that contract indicates that the Highland Park employees are covered pursu- ant to the 1943 Gratiot Avenue-Grand River Avenue certifications. ' Contract provisions relating to the auto service center covers the Highland Park store only, as the Lincoln I'ark certification specifically excludes the auto service center. Also, provisions concerning Sunday work schedules differ, since the Lincoln Park store is open on all Sun- days while the Highland Park store is open only 16 Sundays a year ln other respects, the contract applies virtually identically to both stores 11I he Union's administration and servicing of the contract for the two stores is integrated However, an issue pertaining to employees It only one store will he discussed only by employees at that store, unless the issue materially affects employees at both stores The initial grievance steps are handled at the individual stores. Each store's manager and per- sonnel department possesses wvide discretion in setting personnel policy, without discussing it with the staff of the other store. There are no con- tractual interstore seniority crossover rights for transfer, job bidding, or layoffs Each store has its own safety committee. 4 Ctiliy Workers Union of America. AbFL--CIO. and its Locali ,No. I1/. 116. 138. 159, 264. 361, 426, 468. 478. and 492 (Ohio Power Company). 203 NLRB 230 239 (1973), enfd. 490 F 2d 1383 (6th Cir 1974). the parties still recognized the units as being sepa- rate units. s The contract provided for no interstore seniority crossover rights for transfer, job bidding, or layoffs. The absence of such a provision leads us to the inference that, despite the negotiation of a single contract, the parties did not contemplate cre- ating a single unit.6 Nor do we find determinative the fact that the Union's negotiating team for the 1977 agreement contained employees of both stores, or that the agreement was ratified by a pooled vote of union members in both bargaining units. In our view, these factors are outweighed by the independent authority of each store manager in establishing personnel policies and developing em- ployees' schedules, as well as the consideration of employees' grievances at the individual store level.7 Where, as here, each store operates as a self-contained unit with no operational interchange between them, and in the absence of specific lan- guage to the contrary, we cannot draw the infer- ence that the parties agreed to extinguish the exist- ence of separate units. Accordingly, having concluded that the Lincoln Park unit certified in 1975 and recertified in 1977 was not merged into the Highland Park unit, we find that 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 full-time and regular part-time selling and non-selling employees employed by the Em- ployer at its store located at 2100 Southfield, Lincoln Park, Michigan, including lead per- sons and check tracers, but excluding auto- motive center employees, concession and con- tractor employees, confidential employees, em- ployees covered by existing collective bargain- ing agreements, guards and supervisors as de- fined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] . See Lone Star CGa Company. 194 NLRB 761 (1971), cf. Ihe 4rmn srong Rubber Company. 208 NLRB 513 (1974) e See Bausch and Lomb Optical Company. 107 NIRB 263. 265 (1953)1 Continental Can Company. Inc.. Plant 142. Plasric Container Divo.on. 145 NLRH 1427, 1429-30 (19641) See Continental Can Company. upru, .Metropolltan Life Insurunce Company, 172 NLRH 1257 (1968). 212