City Markets, Inc.

CITY MARKETS 469 City Markets, Inc. and Juanita Larson, Terry Paul- son, Larry D. Beckwith, John 0. Price, William Portouw, Petitioner and United Food and Com- mercial Workers, Local No. 7. Cases 27-RD- 614, 27-RD-617, 27-RD-619, and 27-RD-622 14 December 1984 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On petitions duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer Michael J. Belo. Following the hearing and pursuant to Section 102.67 of the Board's Rules and Regulations, the Regional Direc- tor for Region 27 transferred this case to the Board for decision. The Employer and the Union filed briefs. On the entire record in this case, the Board finds 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Union is a: labor organization which was certified as the majority representative of certain of the Employer's employees. 3. A question of representation affecting com- merce exists within the meaning of Section 9(c) and Section 2(6) and (7) of the Act. The Employer is a Colorado corporation en- gaged in the retail sale of groceries in Colorado, Utah, and Wyoming. The Union is the certified bargaining representative of four separate geo- graphical units of the Employer's employees in Colorado. One unit encompasses the Employer's stores in Grand Junction and Clifton, one the store in Steamboat Sprinks, one the store in Aspen, and one the store in Glenwood Springs. The Union and the Employer were parties to a separate collective- bargaining contract for each location, all of which expired on 4 September 1982. When the old con- tracts expired, the parties were bargaining over the terms of new contracts but had not yet reached agreement. Between 7 September and 8 November 1982 de- certification petitions were filed by employees from each of the four Colorado units. Meanwhile, as a result of charges filed by the Union, the General Counsel issued a complaint on 15 October 1982 al- leging, inter alia, that since 5 September 1982 the Employer had been violating Section 8(a)(5) of the Act by conditioning its contract offer on employ- ees' refraining from engaging in protected activity such as handbilling and picketing. By letters dated .19 October 1982 the Regional Director informed the Petitioners from the Aspen, Steamboat Springs, and Grand Junction units that their petitions were being dismissed because the alleged violation of Section 8(a)(5), unremedied at the time the peti- tions were filed, precluded the finding of •a. question concerning representation. The letters further in- formed the Petitioners that the petitions were sub- ject to reinstatement if appropriate upon their ap- plication after the disposition of the unfair labor practice allegations. An identical letter was sent to the Petitioner from the Glenwood Springs unit on 16 November 1982. The Union and the Employer continued to nego- tiate over new contracts while the unfair labor practice allegations were pending. On 16 February 1983 they entered into collective-bargaining agree- ments covering each of the four units. The agree- ments were to be effective retroactively from 5 September 1982 -and to expire on 1 March 1986. After the agreements were executed, the Union requested withdrawal of the charges ,that prompted the 15 October 1982 complaint. The Regional Di- rector approved the withdrawal of the charges and dismissed the complaint on 21 March 1983. There- after, on various dates in March, April, and May 1983 the Petitioners from all four of the above-de- scribed units asked the Regional Director to rein- state their petitions. The Union contends that the current and valid collective-bargaining agreements executed on 16 February 1983 prevent the subsequently requested reinstatement of the decertification petitions under the Board's discretionary contract-bar doctrine.' The Board has established the general rule that where, as here, a contract of definite duration is re- duced to writing and executed by both parties, it will act as a bar for up to 3 years of its term to an election petition filed by an employee or rival union after the contract is executed. General Cable Corp., 139 NLRB 1123 (1962); Appalachian Shale Products Co., 121 NLRB 1160 (1958); Pacific Coast Assn. of Pulp Manufacturers, 121 NLRB 990 (1958). If, on the other hand, a petition is filed before the execution date of a Contract effective either imme- diately or retroactively and is otherwise timely, the contract subsequently entered into will not bar the processing of the petition and the holding of an election. Deluxe Metal Furniture Co., 121 NLRB 995 (1958). If the incumbent union prevails in the election held, any contract executed with the em- ployer will be valid and binding; but if the union ' The Board has held that in circumstances in which a contract will normally act as a bar It will be disabled from doing so if, for example, It does not .contain substantial terms and conditions of employment or em- brace an appropriate unit The parties do not contend that the contracts in themselves lack the reciuisites established by the Board for valid con- tract-bars 273 NLRB No. 71 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loses, the contract will be null and void. See RCA Del Caribe, Inc., 262 NLRB 963 (1982) (certifica- tion petition filed by rival union) (same rule applied to decertification petitions in Dresser Industries, 264 NLRB 1088 (1982)). Here, the decertification petitions were timely when originally filed according to the Board's con- tract-bar rules. Each was filed after the prior con- tracts had expired and before the new contracts were executed. The new contracts therefore would not normally act as a bar to the petitioned-for elec- tions. The Union urges, however, that the new contracts do operate as a bar to the elections be- cause they were executed after the Regional Direc- tor had dismissed the petitions and before the re- quests for reinstatement were made; in other words, during the hiatus in the processing of the petitions caused by the Regional Director's deter- mination that, in view of the pending unfair labor pratice litigation, no question concerning represen- tation could exist. We, reject the Union's contention because it attributes undue significance to the Re- gional Director's dismissal of the petitions here. As the Union points out, the Regional Director dismissed the petitions pursuant to the Board's "blocking charge" policy as exemplified by Big Three Industries, 201 NLRB 197 (1973). In that case the Board weighed the right of employees under Section 9(c) of the Act to decertify their bargaining representative against the employer's obligation to bargain in good faith. The Board con- cluded that where a complaint has issued alleging that the employer has refused to bargain in viola- tion of Section 8(a)(5) of the Act and the appropri- ate remedy if the allegation be proved is an affirm- ative bargaining order, the employees' opportunity to decertify the union must be postponed pending litigation of the bona fides of the employer's bar- gaining efforts in order to preserve the orderly procedure of collective bargaining contemplated by the Act. Accordingly, the Board will sustain the Regional Director's dismissal of a decertification petition in the face of unremedied refusal-to-bar- gain charges under its authority granted by Section 9(c) of the Act to determine if a question of repre- sentation warranting an election exists. The Re- gional Director's dismissal of an election petition in these circumstances does not operate as a determi- nation that the petition itself is defective, i.e., that it does not raise a real question concerning represen- tation because, for example, it lacks a sufficient showing of interest or is tainted by employer sup- port. It merely indicates that the petitioner must await the outcome of the unfair labor practice liti- gation, at which time he is entitled to request rein- statement of the petition, and that there is no point in processing the petition further because the dispo- sition of the alleged violation of Section . 8(a)(5) of the Act may lead to the issuance of an affirmative bargaining order which would preclude an election for a certain period of time in any event. A dismis- sal of this kind does not in itself extinguish the em- ployee right to an election invoked by the timely filing of a valid decertification petition.2 The unfair labor practice proceedings in anticipa- tion of which the Regional Director dismissed the petitions will not take place since the charges have been withdrawn and the complaint dismissed. Moreover, the Employer and the Union have re- turned to the bargaining table and agreed upon new contracts. The countervailing considerations that compelled the Board to sustain the dismissal of the decertification petition' in Big Three Industries are thus no longer present. 3 Therefore, in accord with the Board's avowed intent to process valid petitions and conduct elections as expeditiously as possible, RCA Del Caribe and Dresser Industries, we will direct reinstatement of the petitions and the holding of elections in each of the designated units.4 2 The Union contends that the Regional Director's determination that no question concerning representation existed became final upon the fail- ure of the Petitioners to request review of the dismissal of their petitions The Union thus seeks to equate the requests for reinstatement with the untimely filing of new petitions after the current contracts were executed While the Union's contention that the dismissals were final would be cor- rect had the petitions been dismissed on their ments, there is no require- ment that the Petitioners here request such review in order to preserve their ultimate right to request reinstatement of their petitions following the unfair labor practice proceedings Moreover, for the purpose of ap- plying the Board's contract-bar rules the original filing date of a petition will control where the petition is dismissed on its merits and later rein- stated pursuant to a favorable ruling on appeal Deluxe Metal Furniture, supra at 1001 A fortiori, the original filing date of a petition which is dismissed subject to reinstatement after blocking charges have been re- solved, as were the petitions here, controls in determining timeliness - 3 Member Zimmerman finds no merit in the Union's contention that the withdrawn complaint precludes reinstatement of the petitions The Union argues that the complaint alleging a violation of Sec 8(a)(5) in- volved a substantive refusal to bargain Therefore, it urges that it is im- possible to say whether absent the Employer's refusal to bargain a collec- tive-bargaining agreement would have been signed prior to the filing of the petitions The chief difficulty with the Union's position is that it in effect urges the Board to find that 8(a)(5) allegations are meritorious solely on the basis that the Regional Director Issued a complaint The Union has withdrawn the charge, as a result the complaint has been dis- missed, and no evidence has been presented indicating that the Employer engaged in conduct which would require a finding that the petitions should not be processed In these circumstances I find no basis for con- cluding that the Employer engaged in unfair labor practices which pre- clude reinstating the petitions 4 Member Hunter agrees with his colleagues that the circumstances of this case warrant reinstatement of the petitions In doing so, however, he does not pass on the continued viability of the Board's decision in Big Three Industries The parties stipulated at the hearing on the requests for reinstatement that, should an election be directed, the four existing single location units as described in the documents comprising the collective-bargaining agree- ments entered Into on 16 February 1983 are appropriate units CITY MARKETS 471 [Direction of Elections omitted from publica- tion.] CHAIRMAN DOTSON, concurring. The Employer contends that RCA Del Caribe, Inc., 262 NLRB 963 (1982), is controlling. That case holds that an employer must continue to bar- gain with an incumbent union after a representation petition is filed, but should the parties execute a contract, its Validity will rest on the outcome of the petitioned-for election. The same rule was ap- plied to the filing of a decertification petition in Dresser Industries, 264 NLRB 1088 (1982). While I do not pass on the wisdom of the rule in RCA Del Caribe and Dresser, which effectively converts a Board-conducted representation election into a rati- fication vote on an existing contract, I do agree with my colleagues that the circumstances here do not deprive the petitioning employees of their pre- rogative under Sections 7 and 9(c) of the Act to in- dicate in a secret-ballot election whether the Union continues to be the majority representative. I there- fore concur in the reinstatement of the decertifica- tion petitions and the direction of prompt elections.