Fred Meyer, Inc.

MEYER'S (AFE & KONDITOREI Roundup Company d/b/a Meyer's Cafe & Kondk torei, a wholly owned subsidiary of Fred Meyer, Inc. and United Food and Commercial Workers Union, Local No. 44, AFL-CIO and Local No. 451, Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO. Cases 19-CA-17126 and 19-CA-17283 22 October 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 10 February 1986 Administrative Law Judge James S. Jenson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law i We disagree with the Respondent 's contention that because the number of newly hired Konditorei employees exceeded the number of employees in the Meyer 's Cafe unit at the time the Konditorei com. menced operations , it was not obligated to extend to the new hires the current contract with Local 44 covering the Meyer's Cafe employees Those cases in which the Board has refused to "accrete " a larger comple- ment of employees into a smaller certified unit are distinguishable since they invariably involve attempts to include in the smaller unit a separate group of preexisting employees with a separate history of representation or nonrepresentation See, e g , Renaissance Center Partnership, 239 NLRB 1247 (1979) (acquisition of a new hotel involving the attempted accretion of 67 previously unrepresented guards into a certified unit of 59 employees), Panda Terminals, 161 NLRB 1215 (1966) (consolidation of 2 freight handling operations involving the attempted accretion of 130-150 employees previously represented separately by another union into a cer- tified unit of 45-50 employees), Servair Inc, 252 NLRB 670 (1980) (take- over of airport maintenance operations involving the attempted accretion of 36 mechanics previously represented separately by another union into a certified unit of 30) In contrast, the Konditorei operation is nothing more than an expan- sion or enlargement of the existing restaurant operation , which required the hiring of new employees to staff the facility Moreover, the employee complement stabilized after the Konditorei 's opening to a 2 1 ratio in favor of the Meyer's Cafe employees In light of the overwhelmingly strong community-of-interest factors shared by the Meyer's Cafe and Konditorei employees, in particular the similarity of job functions and classifications, the integration of operations, and the common supervision, we find that the Konditorei employees do not constitute a separate ap- propriate unit See Howard Johnson Co, 236 NLRB 1206 (1978) Rather, the new hires fall within the present unit description and are merely addi- tions to the existing contractual unit Under these circumstances, the fact that there is a larger number of new hires is irrelevant to the question of whether the new hires should be included in the unit Member Babson would adopt the judge's conclusions for the reasons set forth by the judge, and he therefore finds it unnecessary to pass on the foregoing discussion judge and orders that the Respondent, Roundup Company d/b/a Meyer's Cafe and Konditorei, Bel- lingham, Washington, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. James C. Sand, Esq., and George L Hamano, Esq., for the General Counsel. Nelson D. Atkin II, Esq. (Spears, Lubersky, Campbell, Bledsoe, Anderson & Young), of Portland, Oregon, for the Respondent. Dewey F. Brignone, of Mount Vernon, Washington, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES S . JENSON , Administrative Law Judge. I heard this case in Bellingham , Washington, on 11 and 12 June 1985, pursuant to an amended consolidated complaint that was issued on 25 March 1985. It is alleged that the Respondent violated Section 8(a)(1), (2), (3), and (5) of the Act by- ( 1) assisting Local No. 451, Hotel and Res- taurant Employees and Bartenders International Union, AFL-CIO (Local 451), in obtaining authorization cards, then voluntarily recognizing and entering into a collec- tive-bargaining agreement with Local 451 covering em- ployees at the Respondent's newly opened Konditorei lo- cated in its Bellingham, Washington complex ; (2) that the Respondent's agents engaged in numerous other acts constituting assistance to Local 451 ; (3) that employees in the Konditorei constitute an accretion to a contractual unit represented by United Food and Commercial Work- ers Union, Local No. 44, AFL-CIO (Local 44); and (4) alternatively that the Konditorei employees constitute an appropriate unit whose employees designated Local 44 as their representative, and that the Respondent was obli- gated to recognize because of the contract language cov- ering a preexisting unit of restaurant employees. Denying it engaged in any unlawful acts and conduct, the Re- spondent contends : (1) recognition of Local 451 as the representative of the Konditorei employees was based on valid authorization cards, (2) its agents did not engage in unlawful assistance to Local 451 , and (3) the Konditorei employees are not an accretion to the preexisting restau- rant employee unit, nor was the Respondent obliged to recognize Local 44 as their representative by reason of contract language covering the preexisting unit of restau- rant employees . All parties were afforded full opportuni- ty to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs Briefs were filed by both the General Counsel and the Respondent and have been carefully considered. On the entire record' in the case, including the de- meanor of the witnesses, and having considered the posthearing briefs, I make the following i Except for the correction proposed at p 245, the General Counsel's motion to correct transcript is granted and added to the exhibit file as G C Exh 39 282 NLRB No. I 2 DECISIONS OF NATIONAL LAB PR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION It is admitted and found that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. LABOR ORGANIZATIONS INVOLVED It is admitted and found that Local 44 and Local 451 are each labor organizations within the meaning of Sec- tion 2(5) of the Act. III. ISSUES 1. Did the Respondent unlawfully assist and grant rec- ognition to Local 451 when it did not represent an un- coerced majority of the Konditorei employees? 2. Should the Respondent have recognized Local 44 as the representative of the Konditorei employees because they were an accretion to a preexisting unit at Eve's Buffet restaurant? IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Fred Meyer, Inc. operates approximately 100 retail shopping facilities in the States of Oregon, Washington, Alaska, Idaho, Montana, and Utah. Each facility is a "shopping center kind of operation" with a number of departments under one roof; including grocery, meat, fine jewelry, variety, clothing, hardware, cosmetics, home improvement, and sporting goods. Approximately 30 of the stores also contain restaurant operations. The only facility involved in this proceeding is located in Bellingham, Washington, that operated a restaurant under the name "Eve's Buffet," recently changed to "Meyer's Cafe."2 For a number of years, Local 44 has represented the Bellingham store nonfood departments, meat department, grocery department, and restaurant employees in separate units. The most recent collective- bargaining agreement covering Eve's Buffet was effec- tive from 6 June 1982 to 8 June 1985 and absent reopen- ing was extended by its terms to June 1986. Local 451 has been the collective-bargaining representative of the Eve's Buffet employees in the Respondent's Everett and Lynnwood, Washington stores, and Local 8 of the same International Union has represented the Bellevue, Wash- ington Eve's Buffet employees. The record shows that the Local 451 contracts covering employees in the Ever- ett and Lynnwood Eve's Buffets provide generally lower wages and benefits than the Local 44 contract covering Eve's Buffet in Bellingham. About 1983 the Respondent began adding delicatessen- style sales areas to some of its stores, which it called "Meyer's Cafe Konditorei." Konditoreis were added to the Bellevue and Lynnwood stores in early 1984 and the Konditorei employees were voluntarily included in the respective collective-bargaining agreements under the "miscellaneous" employee classification. A portion of )Eve's Buffet was converted to a Konditorei in Bellevue; while in Lynnwood, the Konditorei and Eve's Buffet are separated by a wall but share a common seating area. Local E^ was voluntarily recognized as the collective-bar- gaining representive of the Bellevue Konditorei employ- ees. Local 451's agreement covering the Lynnwood Konditorei was entered into prior to the opening of the Konditorei or the hire of any employees. Although there is no Ronditorei in the Everett store, the contract be- tween Local 451 provides for coverage of all Konditorei employees under the "miscellaneous" classification. In the spring of 1984,3 Fred Meyer decided to remod- el and add a Konditorei to its Bellingham store, which was to be located adjacent to an existing delicatessen sec- tion. In August, Gregg Newstrand, Fred Meyer's em- ployee relations manager, called Lynda Garman, business agent for Local 451. According to Garman, whom I found to be a credible witness, Newstrand stated he had a "deal" for her and invited her to organize the Belling- ham Konditorei that was about to be opened, offering to voluntarily recognize the local if it obtained authoriza- tion cards from a majority of the employees, none of whom had yet been hired. Newstrand proposed covering those employees under the same contract in effect at either Lynnwood or Everett. In August and September, Debbie Harriman, the man- ager of the Bellingham Eve's Buffet and Konditorei, interviewed prospective Konditorei employees at both Eve's Buffet and the Washington State Employment Of- fices. A final interview was arranged for 20 September at the Park: Motel in Bellingham. At Newstrand's direction, Local 451 representatives were notified and invited to attend. !'4ewstrand acknowledged he made a "conscious decision" not to extend a similar invitation to representa- tives of Local 44 because "We didn't feel that Local 44-Local 44 would necessarily be a union to apply to the Konditorei's because . . . the other Konditorei's had already been covered by other culinary unions." On the appointed date, Harriman and Linda Carder, district managers for Eve's Buffets and Konditoreis, met Local 451 representatives, Myra Anderson and Barbara Rob- erts, at the motel and set up the motel room in prepara- tion for the interviews. Company representatives shared a table at one end of the room and the union representa- tives shared a table at the opposite end. The prospective employees met first with the company representatives, after that they were directed to the union representa- tives. Although there is some dispute about what was said, I find that the testimony of the employee applicants and Anderson, which is mutually corroborative in mate- rial respects, is the most reliable and I credit it over the testimony of Harriman and Carder. Thus, Cheri Lofton testified that after Harriman and Carder had explained the work. and she had completed filling out the necessary forms, "they told us that we had to talk to the union ladies, that we needed to join the union before we could work at Fred Meyer's." She testified that the union rep- resentatives "explained what kind of benefits they had and what kind of benefits they were trying to get for us 1 2 "Eve's Buffet" and "Meyer's Cafe" were used interchangeably - throughout the hearing 3 All dates are in 1984 unless stated otherwise MEYER'S CAFE & KONDITOREI 3 and that they were under contract with Fred Meyer to represent us girls." It was under these conditions that she signed an authorization card for Local 451. She testified further that in November, Harriman told her "that we had to get our dues in as soon as possible so we didn't get terminated." After she learned of Local 44 from an- other employee, she "asked Harriman what should I do because I was mixed up about it." Harriman told her "that she thought that we were in what was the best union, she wasn't sure, that all of us girls had to pay our dues and if one girl didn't pay her dues, that she was going to get terminated ." Lisa Bednarz testified that after filling out the company forms , she was directed to "go over there and talk to the union ladies ." She testified that Anderson told her that "because Fred Meyer's is a union store everybody must belong to a union . And so if you're not-don't belong to the union , [you] can't work there." Deborah Erickson testified that at the conclusion of her interview with company representatives, Harri- man stated "you need to see these ladies," directing her to the two Local 451 representatives across the room. Erickson testified she was present in mid -October when Konditorei employee Kim George told Assistant Kondi- torei Manager Donna Wilkerson , an admitted supervisor, that she wanted to join Local 44. Wilkerson responded that "she couldn't, she had to join 451 because we couldn't have half of us joining one union and half of us joining the other " Harriman also told Erickson she had to join Local 451 rather than Local 44 . Harriman told Kim George that she would have to sign up with the Union before she could be hired and directed her to the Local 451 representatives . Harriman also directed Rhonda Lafeen "to go over and talk to the union ladies." After starting work , Harriman called Lafeen at home and told her to come to the store and pay her union dues to the union representatives . When she arrived at the store, the union representatives were gone and Harriman asked that Lafeen give her the dues money, "that the union lady told her that I could be fired if I didn't pay." Myra Anderson, the Local 451 business agent , testified she heard Carder and Harriman tell the applicants "that it was a union house and a closed shop and they must be a member of the union in order to work there . . . that Barbara [Roberts] and I represented the union and that we would explain it to them." She testified that several of the newly hired employees asked her why they had to be a union member and that she told them "that it was a union house and a closed shop and they must be a member of the union in order to work there ." It is clear that all the employees hired on 20 September to work in the Konditorei signed Local 451 authorization cards that day. The following day, 21 September , Newstrand received a message from Garman to the effect that Local 451 rep- resented a majority of the Bellingham Konditorei em- ployees. Without further verification, Newstrand wrote Garman a letter granting recognition to Local 451, en- closing a supplemental agreement to the Everett agree- ment that would cover the Bellingham employees. As noted earlier, although the Everett store did not employ any Konditorei employees, the Everett contract included all Konditorei employees under a single "Miscellaneous" wage classification . The supplemental agreement bears the signature date of 2 October 1984, and is effective through 31 May 1986 . It is clear that Local 451 and the Employer enforced the union-security provision with re- spect to the Bellingham Konditorei employees. Shortly after the Bellingham Konditorei opened, Dewey Brignone, a Local 44 representative , began con- tacting Konditorei employees in the store and learned they had joined or been encouraged to join Local 451. Harriman had seen him in the Konditorei and told him to contact Newstrand before he did anything . He report- ed these facts to the Union's president, who wrote Fred Meyer, vice president, a letter dated 10 October, wherein the Union claimed to represent the "new Konditorei res- taurant" under section 1.01 of the Eve 's Buffet contract that reads in pertinent part as follows: The Employer recognizes the Union as the sole and exclusive Collective Bargaining Agency [sic] for a unit consisting of all employees coming under the classifications set forth in this Agreement in the Employer's present retail establishment located at Whatcom County , Washington , with respect to pay, wages, hours, and all other conditions of employ- ment. Schedule "A" attached to that contract contains a "mis- cellaneous" employee classification with an hourly wage rate substantially higher than the Local 451 "miscellane- ous" Konditorei wage rate purporting to cover Everett and Bellingham employees . A series of letters between representatives of Fred Meyer and Local 44 followed, wherein the Union continued to claim representation rights under the Eve 's Buffet contract, and the Company continued to claim it had properly recognized Local 451. On 10 January 1985, four of six employees working at the Bellingham Konditorei signed Local 44 authorization cards. By letter dated 28 January 1985, Local 44 advised the Employer that it represented a majority of the Kon- ditorei employees and offered to prove majority status through a neutral party card check. The Company con- tinues to refuse to recognize Local 44's representational claim and continues to treat Local 451 as the Konditorei employees' collective-bargaining representative even though Local 451 disclaimed any representational rights by letter dated 26 December 1984. B. Discussion 1. Did Respondent violate Section 8(a)(1), (2), and (3) of the Act by granting recognition to and entering into a contract with Local 451, which agreement contained a union-security provision? The General Counsel argues that the evidence estab- lishes that Newstrand preselected the cheaper union, Local 451, and invited it to come in to avoid the spread of Local 44's representation to the Konditorei employ- ees, pointing out that Local 451 representatives were specifically invited to the 20 September, Park Motel meeting, whereas Newstrand made a "conscious deci- sion" not to invite Local 44 representatives. The General Counsel argues that the credible evidence establishes that 4 DECISIONS OF NATIONAL LA employees were told they had to join Local 451, and as a consequence Local 451 did not represent an uncoerced majority and that recognition and execution of a contract containing a union-security clause and enforcement of that clause were unlawful. The Respondent contends "that there, is no substantial evidence establishing that it interfered with the [Kondi- torei] employees' freedom of choice in selecting Local 451 as their bargaining , representative," that no prefer- ence was shown to Local 451 over Local 44, that the Company did not coerce or threaten employees to join Local 451, that Harriman and Carder were credible wit- nesses, remained neutral, and neither individual told em- ployees they,were required to join Local 451, that Harri- man's collection of dues for Local 451 was for the con- venience of the employees and, therefore, certainly not unlawful, and that the collective-bargaining agreement signed by the Company and Local 451 acts , as a bar to any efforts by Local -44 to compel the Company to rec- ognize Local 44 as the representative of the Bellingham Konditorei employees. Contrary to the position of the Respondent, the evi- dence is overwhelming that the Respondent unlawfully interfered with the Konditorei employees' freedom of choice in their selection of a bargaining representative. Sections 7 and 9(a) of the Act grant employees the basic guarantee of freedom of choice and majority rule in their selection of a bargaining representative. Interference by either an employer or a union in the employees' choice of a bargaining representative violates this fundamental principle of collective bargaining. This case is a classic example of an employer choosing a union it wanted to represent its employees. Thus, it is seen that Newstrand called Garman of Local 451 in August 1984, stated he had a "deal" for her, and invited her to organize the Konditorei employees, to be followed by recognition and coverage of the employees in a collective-bargaining agreement at another store, which, the evidence shows, had generally lower wage rates than the Local 44 agree- ment in Bellingham. At Newstrand's direction,' Local 451 officials were invited to attend the 20 September, Park Motel meeting wherein applicants completed the hiring process. 'Newstrand admitted he made a "conscious deci- sion" not to notify Local 44 of the new Konditorei be- cause "we didn't feel that Local 44 . . . would necessari- ly be a union to apply to the Konditoreis because . , . the other Konditoreis had already been covered by other culinary unions." Newstrand had negotiated the Belling- ham Eve's Buffet contract with Local 44 and was well aware that that contract arguably, if not in fact, covered the Konditorei employees by virtue of its recognition clause. It is clear that the Company paid for the hire of the Park Motel room where the final hiring process and organizing activities took place, and that company and Local 451 representatives were within hearing distance of each other. In this regard, Local 451 Representative Anderson credibly testified that Carder and Harriman "explained to them [employees] that it was a union house and a closed shop and they must be a member of the union in order to work there." Anderson credibly testi- fied that several employees asked her why they had to join Local 451, and that she conveyed the same message R RELATIONS BOARD 'Carder and Harriman had. Lofton was told that "we had to talk to the union ladies, that we needed to join the union before we could work at Fred Meyer's." The union representatives told her that "they were under contract with Fred Meyer's to represent us girls." Bed- narz -was directed to talk to the union representatives. In response to her question, Anderson told her that "be- cause Fred Meyer's is a union store everybody must belong to a union. And so if you ...' don't belong to the union, [you] can't work-'there." Harriman and Carder told Kim George that she `had to see the union represent- atives before she left, and that she would -have to sign up with the union before she could be hired. Erickson and Lafeen were also told that they needed to see the union representatives before leaving. Under the foregoing circumstances, I find that the au- thorization cards for Local 451 do not reflect the free and untrammeled choice of the signers, which the Act contemplates, but rather were obtained through unlawful assistance and coercion that tainted Local 451's majority status. 'Therefore, Local 451 did not represent an un- coerced majority when it was accorded exclusive recog- nition on 14 September 1984. By rendering unlawful as- sistance and support to Local 451, Respondent violated Section 8(a)(1) and (2) of the Act. By granting exclusive recognition to Local 451 on 24 September 1984, when Local 451 did not represent a free, unassisted, or un- coerced majority, Respondent rendered further assistance and,support to Local 451 in violation of Section 8(a)(1) and (2) of the Act. On 2 October 1984, the Respondent and Local 451 ex- ecuted a collective-bargaining agreement covering the Bellingham Konditorei ` employees 'that contained a union-security provision. The Respondent admittedly has maintained and enforced the union-security provision, and the evidence shows that, pursuant to that clause, Harriman solicited initiation fees and dues from employ- ees on behalf of Local 451. The proviso to Section 8(a)(3) of the Act prescribes the conditions under which an agreement containing a union-security clause may be lawful. Among these requirements are: (1) the union with whom the agreement is made must be one that has not been assisted by unfair labor practices, and (2) the union must be the freely designated representative of a majori- ty of the employees in the appropriate unit. As previous- ly found, neither of these requirements has been met. I,? therefore, further find in accordance with well-estab-1 lished precedents that by executing , maintaining, and en- forcing this agreement, the Respondent, has violated Sec- tion 8(a)(3) and (1) of the Act, and has rendered addi- tional assistance and support to Local 451 in violation of Section 8(a)(2) and (1) of the Act. 2. Did the Respondent violate Section 8(a)(5) and (1) by refusing to recognize Local 44 as the representative of the Konditorei employees because they were an accretion to a preexisting unit at Eve's Buffet? An accretion is the addition of employees to an al- ready existing group where there exists such a communi- ty of interest that the accreted employees are governed MEYER'S CAFE & KONDITOREI 5 by the other group's choice of bargaining representative. In addition to showing that the expanded unit would be appropriate for collective bargaining, it must be shown that the group to be added would not in itself constitute an appropriate unit. NLRB Y. Security-Columbian Bank- note Co., 541 F.2d 135, 140 (3d Cir. 1976); Boire v. Team- sters Local 79, 479 F.2d 778, 795-796, 798-799 (5th Cir. 1973); NLRB v. Retail Clerks Local 588, 587 F.2d 984, 987 (9th Cir. 1978). The relevant factors in determining whether there is an accretion to an existing unit are: bar- gaining history, the functional integration of operations, the differences in the types of work and the skills of em- ployees, the extent of centralization of management and supervision, particularly in regard to labor relations, hiring, discipline, and control of day-to-day operations, and the extent of interchange and contact between the groups of employees. Bryan Infants Wear Co., 235 NLRB 1305, 1310 (1978). In summarizing Board law, Morris4 sets out the following guidelines for determining accre- tion: The guidelines encompass the presence or absence of a variety of factors such as: (1) the degree of interchange among the employees, (2) geographical proximity, (3) integration of operations, (4) integra- tion of machinery and product lines, (5) centralized administrative control, (6) similarity of working conditions, skills, and functions, (7) common control over labor relations, (8) collective bargaining histo- ry and (9) the number of employees at the facility to be acquired as compared with the existing oper- ation. [Footnotes omitted.] The normal situation presents a variety of elements, some militating toward and some against accretion so that a balancing of factors is necessary, and in some cases the Board has given greater weight to some factors than to others. Guided by the above principles and the posi- tions of the parties, I turn now to the specific evidence. a. Geographic proximity The Konditorei and Eve's Buffet are located approxi- matley 260 to 270 feet apart in a single building and are separated by turnstiles and checkstands, as opposed to walls. Neither the distance nor the obstacles separating them are so great as to prevent food and supplies from being transported by Eve's Buffet personnel from Eve's Buffet kitchen and storeroom to the Konditorei several times a day. In this regard, Konditorei employees sign in and out at Eve's Buffet, where they pick up clean aprons, hats, and towels, and later return those soiled ar- ticles for laundering at that location. b. Integration of operations and employee contact Eve's Buffet is a self-service cafeteria-style restaurant containing a short order grill, a steam table, desserts, salads, and salad bar. The Konditorei is a self-service del- icatessen-type operation that caters to "take out" orders. Both facilities have booths where customers may con- sume the food they have purchased, and the Konditorei also has a counter with a number of stools. Although Eve's Buffet utilizes a menu and the Konditorei does not, each facility has a menu board containing a partial list of items available. Although the Respondent argues that the type of food served in each facility is essentially differ- ent, it is clear that many items are the same. As pointed out by the General Counsel, the Konditorei is largely de- pendent on Eve's Buffet employees for logistic support. As very little storage space was built into the Kondi- torei, most of that facility's supplies are kept in a supply room located at Eve's Buffet. Each of the facilities is as- signed shelf space in the supply room It is not uncom- mon for Konditorei or Eve's Buffet employees to take supplies from Eve's Buffet shelves for use by the Kondi- torei. As each facility has its own profit-and-loss state- ment (later consolidated), any withdrawal of supplies by one from the other is recorded on transfer sheets and charged accordingly. Konditorei employee Tracy Sudman testified that she had to get supplies from the supply room every night and that 80 percent of the time she had to draw from Eve's Buffet supplies. A pressure deep fat fryer was installed in the Eve's Buffet kitchen when the Konditorei was opened. It is operated by Eve's Buffet cook, Cameron Caldwell, who cooks and delivers chicken, corndogs, burritos, chicken livers, "drummies," and jojos (quartered fried potatoes) to the Konditorei. She also delivers grocery items to the Konditorei. The time she spends operating the pressure fryer and deliver- ing items to the Konditorei are charged to the Kondi- torei at her Eve's Buffet pay scale. Caldwell also helps the Eve's Buffet crew out front. Until recently when State of Washington health laws forbade the application of a chemical to the salad lettuce, Caldwell prepared salads for the Konditorei. However, she or another Eve's Buffet employee still draw lettuce and tomatoes from Eve's Buffet stock for delivery to and use by the Kondi- torei. Some food items cooked in the Konditorei's pres- sure fryer are also served in Eve's Buffet. The record also shows that one or two other Eve's Buffet employees regularly prepare food for the Konditorei in Caldwell's absence, for which they are paid the Eve's Buffet cook's wage scale which is charged to the Konditorei. On one occasion, the Konditorei cooked a lasagna for Eve's Buffet at the request of Eve's Buffet assistant manager. Eve's Buffet is open from 6:30 a.m. to 7 p.m. and the Konditorei from 8 a.m. to 10 p.m. After signing in in the morning, the first thing that Neva Ballard,5 the grill cook at Eve's Buffet, does is to turn on the ovens in the Konditorei. On returning to Eve's Buffet, she takes the laundry for both facilities out of the washer aiid puts them in the dryer. She then makes coffee, bakes crois- sants and muffins, and in general prepares fot . serving breakfast. When time permits, she sets up the salad bar. Much of the same preparatory procedures are followed by the Konditorei employee who opens that facility. Bal- lard is relieved for a break by Caldwell who comes in about 8:30, after that Caldwell cooks the numerous items in the pressure fryer for the Konditorei. The hot foods prepared for the Konditorei are then placed in a heated 4 C Morris, The Developing Labor Law, Vol I, 369-370 (2d ed 1983) 5 Ballard is the Local 44 shop steward 07 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cart that Caldwell uses to deliver it to the Konditorei. She uses an unheated cart to make later deliveries, but transfers the hot food to the heated cart. The heated cart is returned to the Eve's Buffet kitchen in the evening by a Konditorei employee. As the caption of the case shows, Eve's Buffet and the Konditorei are held out to the public as a joint operation, "Meyer's Cafe & Kondi- torei." I find that these factors favor accretion. c. Skills, duties, and functions It is clear the skills, duties, and functions performed by the Eve's Buffet and Konditorei employees are much the same. Employees of each facility are engaged in the preparation of food for consumption both on and off the premises. Although the Respondent seeks to distinguish their operations on the ground that Eve's Buffet has a steamtable and grill and presents a more complete line of hot meals to the public, it is clear that the Konditorei also serves hot foods and that many items served are the same in each facility. Both facilities begin the day by making coffee and baking croissants, muffins, and other items. Employees of both facilities employ the same skills in making sandwiches and setting up salad bars. The same skills are also employed in bussing tables, dishwash- ing, keeping their respective work premises clean, and in cashiering. The fact that Eve's Buffet utilizes frozen meats whereas the Konditorei uses fresh meats, that the scales they use are of different types, and that the cash registers are different models is of no significance. These facts also favor accretion. d. Supervision Harriman is the manager of the Bellingham Meyer's Cafe and Konditorei division, which includes both Eve's Buffet and the Konditorei. She actively supervises both, spending about 50 percent of her time in each. Her salary is divided equally between the two. She hires em- ployees for both facilities, prepares their work schedules, issues directives, disciplines, and is the immediate person in charge. Lorna Haey is the assistant manager for Eve's Buffet, and Donna Wilkerson for the Konditorei. Prior to her promotion to assistant manager, Wilkerson was a cook in Eve's Buffet. Although the Respondent admits both Haey and Wilkerson are statutory supervisors, it ap- pears that they spend most of their time working along- side the employees in their respective facility and rarely exercise supervisory authority. The manager and assist- ant managers wear uniforms that are distinct from those worn by the employees. As noted before, on one occa- sion a Konditorei employee prepared a lasagna for Eve's Buffet at the request of the latter's assistant manager. The Eve's Buffets and Konditoreis are administered at the corporate level as a separate division from the other operations in Bellingham. Common supervision also favors accretion. e. General working conditions The difference in wages and fringe benefits between the two groups of employees is due to the Employer's recognition of different, unions and is, therefore, not a controlling factor. The record shows that all employees park on the outskirts of the Respondent's parking lot; they share the same restroom and locker room facilities; they are issued the same new employee packet; use the same application form; sign a standard set of employee rules; wear the same Fred Meyer name tag;, are paid the same day; are subject to the Company's standard proce- dures regarding signing in and handling cash. There is a 44-page "Eve's Buffet Manual" that is given to employ- ees of Eve's Buffet and the Konditorei, and a copy is maintained in each facility. There is an "EBR . . . KDR Bulletin" that ' is distributed to Eve's Buffet and Kondi- torei at the corporate level and is available to employees in both facilities. It is published every 8 weeks and "pro- vides competitive data, news, informative articles and the like." There is a bulletin posted at both facilities entitled "Safety Practices for Restaurant Employees." Another bulletin posted at both locations, "Food-Service News You Can Use," relates to sanitation practices and the dangers of salmonella. A handwritten memorandum from Eve's Buffet District Manager Linda Carder is posted in both restaurants. It covers housekeeping complaints and suggestions and encourages employees to do "suggestive selling." A Red Cross bulletin regarding artificial respira- tion is posted at both facilities. Senior customers are enti- tled to join "Eve's Joy Club," which entitles them to a discount at both restaurant facilities. The employees of both enjoy free meals during or after their shifts, a bene- fit not shared by any other store employee. I conclude that these factors favor accretion. f. Employee interchange The parties stipulated that prior to being promoted to assistant manager of the Konditorei, Donna Wilkerson was a cook at Eve's Buffet and within the unit represent- ed by Local 44. It was further stipulated that Lisa Stroud was hired on 10 October to work in the Kondi- torei; that in lieu of being laid off after working there 5 days, she was transferred to Eve's Buffet to replace an employee who quit. The record shows that several em- ployees hired to work in the Konditorei were first inter- viewed by Harriman in Eve's Buffet in response to a job opening sign posted on the door of Eve's Buffet. It also shows that one employee interviewed at the Park Motel on 20 September was hired to work at Eve's Buffet. As noted earlier, Caldwell cooks and delivers chicken, corn dogs, burritos, chicken livers, "drummies," and jojos to the Konditorei, and her time is charged to the Kondi- torei. Other Eve's Buffet employees perform,those duties in Caldwell's absence. Their time so spent is also charged to the Konditorei. In the Lynnwood store, where Eve's Buffet and Konditorei are located next to each other, Konditorei employees are used periodically in Eve's Buffet, during that time their wages are adjusted upward. The same is true of the Bellevue store where the Kondi- torei "basically is totally within the Eve's Buffet." Fur- thermore, company representatives told Local 451 repre- sentatives that "they had envisioned that it would be pri- marily students that would staff [Konditorei]', 18 years or younger, people still living at home . . . under their par- B Testimony of Linda Carder MEYER'S CAFE & KONDITOREI 7 ents' insurance plan, and that it would be kind of a step- ping stone into the Eve's Buffet where,the higher rates were paid."7 Thus, it seems clear that the skills and func- tions employed by the employees of both facilities are so similar that they are interchangeable, and the lack of fur- ther interchange in Bellingham has been due to the, Re- spondent's unlawful recognition of Local 451. g. Number of Konditorei employees compared with Eve's Buffet Harriman hired 13 employees for the opening of the Konditorei on •1 October. There were 10 employees in Eve's Buffet at that time. Reductions in the number of employees were made in the Konditorei commencing in mid-October, and by late January 1985, there were only six employees left. Eve's buffet had nine employees at the end of January. By the time of the hearing in this matter in June, the Konditorei employee complement had been reduced to four, two of whom were in the original complement, and Eve's Buffet employed eight. As pointed out by the General Counsel, "the relationshp seems to have stabilized at, about two-to-one or better margin in favor of" Eve's Buffet. Thus, the numerical re- lationship between the Konditorei and Eve's Buffet does not militate against accretion. h. Collective-bargaining history Except for the unlawful recognition of Local 451, there is no history of collective bargaining for the Bel- lingham Konditorei employees. It is significant, however, that with respect to the Konditoreis in the Lynnwood and Bellevue stores, and anticipatorily at Everett, the Company has voluntarily treated the Konditorei as an accretion to the existing Eve's Buffet-units, and extended the coverage of those contracts,to cover the Konditorei employees in a single "miscellaneous" employee and wage classification. The contract with Local 44 covering Eve's Buffet, in, Bellingham includes a "miscellaneous" employee and wage classification. I conclude, therefore, that the bargaining history favors accretion. Consequences I am cognizant of the fact the Board is reluctant to find accretions. On this record, however, I have no diffi- culty fording that the•Konditorei employees do not have a separate community of interest and that they, therefore, may not constitute a separate identifiable unit from the Eve's Buffet 'employees, but rather are an accretion to the Eve's Buffet unit. The legal principles and the rele- vant factors- discussed above militate in favor of accre- tion. It is obvious that prior to the opening of the Bel- lingham Konditorei, Newstrand anticipated that Local 44 was going to demand that the employer recognize those employees as an accretion to the unit covered by the Eve's Buffet contract. Faced with a higher wage scale than he already had with Local 451, he arranged circum- stances, albeit unlawfully, so that he could grant recogni- tion to Local 451 and reject Local 44's demand on that basis. ' Testimony of Lynda Garman I, am convinced that stability of labor relations will ult,frotn--th _finding. It seems anomalous that a single department with two restaurant facilities under the facts outlined above should be found to consist of two units. As Local 451 has disclaimed interest in representing the Bellingham Konditorei employees, Local 44 is the only labor organization interested in representing them. Fur- ther, the Konditorei and Eve's Buffet are included in an overall restaurant unit in the Company's other stores. Concluding that the Konditorei employees were an ac- cretion to the unit represented by Local 44 and covered by the Eve's Buffet-Local 44 contract, I find that by its failure and refusal to recognize Local 44 as their exclu- sive collective-bargaining representative and' by its fail- ure and refusal to apply. the terms and conditions of the current contract to them from their dates of hire, the Re- spondent violated and continues to violate Section 8(a)(1) and (5) of the Act. In light of these findings, it is unnecessary to consider the General Counsel's alternative theory. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Having found that the Respondent violated Section 8(a)(1) and (2) of the, Act by granting assistance and ex- clusive recognition to Local 451r,on 24 September 1984, at a time when Local 451 did not represent a free, unas- sisted, or uncoerced majority,of the Bellingham Kondi- torei employees, and further violated' Section 8(a)(1), (2), and (3) of the Act by entering into the union-security contract with Local 451 on 2 October 1984, and thereaf- ter maintaining and giving effect to the agreement, in- cluding the union-security provision, I shall recommend that the Respondent withdraw and withhold recognition from Local 451 as the representative of any of'its em- ployees at the Bellingham Meyer's Cafe and Konditorei. I shall further recommend that the Respondent cease' maintaining or giving any force or effect to the collec- tive-bargaining agreement executed on 2 October 1984, or to any modification, extension, renewal, or supple- ment. Under all the circumstances disclosed by this record, I find that dues, initiation fees, and other moneys for Local 451 were deducted and paid under coercion and that a reimbursement order is necessary fully to remedy the unfair labor practices. I, therefore, further recommend that the 'Respondent reimburse all present and former employees for dues and initiation fees paid by them pursuant to the terms, of the union-security agree- ment executed on ` 2 October 1984, with interest. Having found that the Respondent has unlawfully re- fused to recognize Local 44 as,the representative of its Bellingham Konditorei employees, it is recommended that the Respondent now commence doing so by apply- ing the terms of the current Bellingham Eve's Buffet col- lective-bargaining agreement to the Konditorei employ- ees. To the extent that the Bellingham Konditorei em- ployees have suffered losses of wages and benefits as a consequence of the Respondent's failure to apply the 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms and conditions of the collective-bargaining agree- ment in effect from 6 June 1982 to 8 June 1985, and ex- tended by its terms to June 1986, it is recommended that the Konditorei employees be made whole for such losses. Such monetary amounts are to be computed in accord- ance with the Board's decision in Ogle Protection Service, 183 NLRB 682 (1970), with interest as prescribed in Isis Plumbing,Co., 138 NLRB 716 (1962); Florida Steel Corp., 231 NLRB 651 (1977); and Olympic Medical ' Corp., 250 NLRB 146 (1980). In addition, the Respondent shall pay the contractually agreed-on trust funds in the amounts of the contributions that the Respondent failed to make on behalf of the Respondent's unit employees in accordance with Fox Painting Co., 263 NLRB 437 (1982), and Merryweather Optical Co., 240 NLRB 1213 (1979), and re- imburse unit employees for any expenses resulting from the Respondent's unlawful failure to make such contribu- tions, with interest. McWhorter Trucking, 273 NLRB 369 (1984). It is further recommended that the Respondent make Local 44 whole for all initiation fees and dues it would have received but for the Respondent's failure to apply the terms of its agreement with Local 44 to its Bel- lingham Konditorei employees, together with interest. Dura-Vent Corp., 257 NLRB 430 (1981); J. F. Swick Insu- lation Co., 247 NLRB 626 (1980); Ogle Protection Service, supra. Finally, it is recommended that the Respondent be required to post the notice attached as the Appendix in the manner specified below. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 44 and Local 451 are each labor organizations within the meaning of Section 2(5) of the Act. 3. By telling employees that they had to join Local 451 in order to work for the Respondent, the Respond- ent violated Section 8(a)(1) and (2) of the Act. 4. By recognizing Local 451 as the Konditorei employ- ees' exclusive bargaining representative on 24 September 1984, at a time when Local 451 did not represent an un- coerced majority, by executing a collective-bargaining agreement containing a union-security provision with Local 451, and by enforcing and maintaining that agree- ment, the Respondent has violated Section 8(a)(1), (2), and (3) of the Act. 5. At all material times, Local 44 has been the exclu- sive collective-bargaining representative of Respondent's employees in the following appropriate unit: All employees of Respondent employed in Re- spondent's present retail establishment' located in Whatcom County, Washington coming under the following classifications: Bus, Cashier, Dishwasher, Grill-Steamtable, Pantry, Kitchen Helper & Night' Pantry, and Miscellaneous, excluding professional employees, guards ad supervisors as defined in the Act. 6. Respondent's Konditorei employees are included in the appropriate unit in paragraph 5 above. 7. At all times since 24 October 1984, the Respondent has refused to recognize Local 44 as the collective-bar- gaining representative of its Konditorei employees and has refused to apply the terms ad conditions of its col- lective-bargaining agreement with Local 44 covering the unit of employees described above in paragraph 5 to its Konditorei employees, thereby violating Section 8(a)(1) and (5) of the Act. 8. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Roundup Company d/b/a Meyer's Cafe and Konditorei, a wholly owned subsidiary of Fred Meyer, Inc., Bellingham, Washington, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Giving assistance and support to Local No. 451, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO. (b) Granting exclusive recognition to Local 451 and executing a contract with it containing a union-security provision when it does not represent a free, unassisted or uncoerced majority in the appropriate unit. (c) Maintaining or giving any force or effect to the collective-bargaining' agreement executed on 2 October 1984, or any modification, extension, renewal, or supple- ment, purporting to cover the Bellingham Konditorei employees. (d) Failing and refusing to recognize United Food and Commercial Workers Union, Local No. 44, AFL-CIO, as the representative of its Bellingham Konditorei em- ployees as part of the appropriate overall restaurant bar- gaining unit. (e) Failing and refusing to apply the terms and condi- tions of the existing Eve's Buffet collective-bargaining agreement with Local 44 to the Konditorei unit employ- ees. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2.' Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw and withhold recognition from Local No. 451, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO, as the collective-bar- gaining representative of any of its Konditorei employees at its Bellingham, Washington facility; and cease enforc- ing, maintaining, or giving any effect to the collective- bargaining agreement with that union that purports to cover the Bellingham Konditorei employees. (b) Reimburse all Konditorei employees for initiation fees and dues paid to Local 451 pursuant to the union- 8 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. MEYER'S CAFE &,KONDITOREI 9 security agreement between it and that union, with inter- est. (c) Recognize United Food and Commercial Workers Union, Local 44, AFL-CIO, as the representative of its Bellingham Konditorei as part of the Eve's Buffet restau- rant unit covered by the current collective-bargaining agreement between it and Local 44. (d) Apply the current collective-bargaining agreement to the Bellingham Konditorei employees retroactive to 24 October 1984, and make whole the unit employees who have incurred losses of wages and benefits because of the Respondent's failure to abide by the terms and conditions of, that agreement in the manner set forth in the remedy section. In addition, pay the contractually agreed-on trust funds in the amounts of the contributions that the Respondent failed to make on behalf of Kondi- torei employees in the manner set forth in the Remedy section, and reimburse the employees for any expenses resulting from the Respondent's unlawful failure to make such contributions. (e) Make Local 44 whole- for loss of initiation fees and dues; with interest thereon, suffered as a result of Re- spondent's actions in refusing to apply the collective-bar- gaining agreement with its union-security clause to the Konditorei employees, as set forth in the remedy section. (f) Preserve and, on request, make available to the Board or its agents, , for examination and copying, all records and other materials necessary and appropriate to allow calculation of the payments due under the terms of this Order 'and ' to allow verification of Respondent's compliance with this Order's terms. (g) Post at its Bellingham, Washington facility copies of the attached, notice marked "Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond-, ent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. s If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor' Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " WE WILL NOT assist or contribute support to Local No. 451, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO, or to any other labor organization. WE WILL NOT recognize Local 451 as the collective- bargaining representative of our Konditorei employees, nor will we maintain or give any force or effect to the agreement with Local 451 dated 2 October 1984, or to any modification, extension, renewal, or supplement. WE WILL NOT withhold recognition from United Food and Commercial Workers Union, Local No. 44, AFL- CIO as the collective-bargaining representative of our Konditorei employees as part of the following appropri- ate bargaining unit: All employees of Respondent employed in Re- spondent's present retail establishment located in Whatcom County, Washington coming under the following classifications: Bus, Cashier, ]Dishwasher, Grill-Steamtable, Pantry, Kitchen Helper & Night Pantry, and Miscellaneous, excluding professional employees, guards and supervisors as defined in the Act. WE WILL NOT fail and' refuse to apply the terms and conditions of our current collective-bargaining agree- ment with Local 44 to our Konditorei unit employees. ,WE WILL NOT in any likes or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL reimburse our Konditorei employees for ini- tiation fees and dues paid to,Local,451. WE WILL make whole the Konditorei.employees who have incurred losses of wages and benefits. because of our failure to abide by the terms and conditions of the collective-bargaining agreement with Local 44. Such monetary amounts, and appropriate interest, will be com- puted in accordance with' National Labor Relations Board decisions. In addition, WE WILL pay the contrac- tually agreed-on'trust funds in the amounts of the contri- butions that were not made on behalf of our employees, and reimburse employees for any expenses ensuing from the unlawful failure to make such contributions, and in- terest thereon will be computed in accordance with NLRB decisions. WE WILL make Local 44 whole' for any loss of initi- ation fees and dues suffered as a result of our action in failing to apply the current collective-bargaining agree- ment to Konditorei employees with appropriate interest. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ROUNDUP COMPANY D/B/A MEYER'S CAFE & KONDITOREI, A WHOLLY OWN12D SUB- SIDIARY OF FRED MEYER, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice.