Meijer's Thrifty Acres, 18 (1976)
1 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meijer, Inc:, d/b/a Meijer's Thrifty Acres and Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO and Consolidated Independent Union, Local 951, Party to the Contract Consolidated Independent Union, Local 951 and Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO and Meijer Inc., d/b/a Meijer's Thrifty Acres, Party to the Contract. Cases 7-CA-11623 and 7-CB-3246January 8, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On October 10, 1975, Administrative Law Judge Robert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, Respondent Meijer, Inc., and Respondent Consolidated Independent Union, Local 951, filed exceptions and supporting briefs and the Retail Store Employees Union, Local 876, Retail Clerks International Association, AFLCIO, filed a Motion to Strike Exceptions of Respondent Consolidated Independent Union, Local 951,1 a brief in support thereof and in support of the Administrative Law Judge's decision. 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 Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, Meijer, Inc., d/b/a Meijer's Thrifty Acres, Walker, Michigan, its officers, agents, successors, and assigns, and Consolidated Independent Union, Local 951, its officers, agents, and representatives, shall take the action set forth in the Administrative Law Judge's recommended Order. i The motion to strike the Respondent Union's exceptions was based on apparent untimeliness if served on the Board by mail The motion was denied as the exceptions were in fact hand delivered and timely received by the Board. 2 The Administrative Law Judge incorrectly stated in fn 50 of his Decision that reimbursement was ordered in Spartans Industries, Inc, 169 NLRB 309 (1968) ,We view the error as having no effect upon the appropriateness of his recommended remedy as Spartans is factually distinguishable particularly because that case arose in a right-to-work state Thus, it may be presumed that there was no union-security clause and dues deductions were not compulsory under the bargaining agreement unlawfully extended there DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: These consolidated cases I were heard at Detroit, Michigan, on March 27 and 28 and April 21, 22, and 23, 1975. The charge 2 and first amended charge in Case 7-CA-11623 were filed on December 5, 1974, and February 3, 1975, respectively, while the respective charge and first amended charge in Case 7-CB-3246, were filed on January 28 and February 3, 1975. The consolidated complaint, issued February 19, 1975, and answers filed thereto by Respondent Meijer, Inc., d/b/a Meijer's Thrifty Acres, and Consolidated Independent Union, Local 951, herein called CIU, place in issue whether Meijer has violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, and whether CIU has violated Section 8(b)(1)(A) and (2) of the Act. The respective parties have filed able briefs. Upon the entire record herein, my observation of the witnesses and upon consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION The consolidated complaint alleges and the answer admits that the Respondent Employer, a Michigan corporation with its principal offices in Walker, Michigan,' is engaged in the retail sale and distribution of groceries, appliances, clothing, and other consumer hard and soft goods and related products at its various retail store outlets within the State of Michigan. During the calendar year ending December 31, 1974, which period is representative of its business operations during all times material, the Respondent Employer received gross revenues in excess of $1 million from the retail sale of merchandise at its various stores and, during that same period, purchased and caused to be transported and delivered to its various Michigan stores and outlets, such goods and materials valued in excess of $1 million, of which goods and materials valued in excess of $50,000 were transported to stores and warehouses within the State of Michigan, directly from points outside the State of Michigan. I find therefrom that at all times material herein the Respondent Employer has been 1 The name of the case appears as amended , sua sponte 2 All charges herein were filed by Retail Store Employees Union, Local 876, Retail Clerks International Association , AFL-CIO 3 The location of the Respondent Employer's main office appears herein in conformity with the amendment to the consolidated complaint made at the hearing. 222 NLRB No. 20 MEIJER'S THRIFTY ACRES 19 engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED CIU and the Charging Party are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ployed at the Employer's 17 retail establishments and warehouse located in Grand Rapids, Michigan, and environs, including all full-time and regular part-time employees at the Employer's Thrifty Acres stores, but excluding employees working in the bank, shoe repair, barber shop, beauty shop, major appliances, credit, and bakery departments, office clerical employees, store managers, assistant store managers, department managers, and all other supervisors as defined in the Act. A. The Issue The consolidated complaint alleges that the Respondents, Employer and CIU, had unlawfully imposed and enforced their collective-bargaining agreement and its union-security provisions, effective at the Respondent Employer's 24 other Michigan retail stores, on the employees of Meijer's most recently opened store in Plymouth, Michigan, as the Plymouth employees had not designated the CIU as their representative prior to the affording of such recognition and the application of the contract. The Plymouth employees, it is contended, were thereby deprived of the right to choose their own bargaining representative. The Respondents do not deny the absence of such authorization but assert that the Plymouth store is an accretion to the previously established multilocation unit. Of course, if the Respondents are correct, any apparent deprivation of Section 7 rights would not be applicable and their conduct would not be violative of the Act. B. Background The Respondent Employer commenced operations as a small grocery store in Grand Rapids, Michigan, in 1934, but thereafter opened additional facilities. Since 1951, the Respondent Employer has recognized the CIU as the exclusive bargaining agent of its employees in a multistore chainwide unit. As the Respondent Employer opened new stores, the employees therein were automatically included in the coverage of whichever bargaining agreement with the CIU was then in effect. Pursuant to representation petitions filed by a sister local of the instant Charging Party, the Board issued its decision 4 on May 9, 1963, directing an election in the following unit: All full-time and regular part-time employees em'See Meyer Supermarkets, Inc, 142 NLRB 513, where the history of the Respondent Employer until 1963 is set forth. In reaching its conclusion to establish a multistore unit, the Board, in that matter, rejected the Retail Clerks revised position that two separate units of the employees in (1) the Company's then 14 supermarkets and sole warehouse and (2) the first of its Thrifty Acres stores, respectively, should be found appropriate. The first Thrifty Acres store had been opened after the filing of the original petition in that case and was, in effect, an expanded former company supermarket situated in Grand Rapids. The differences between the new Thrifty Acres store and the previous supermarket were that the former occupied four times the space of the supermarket, the staff was increased from about 50 employees to approximately 175 and two-thirds of its merchandising area became allocated to the sale of nonfood items The Board, there, contrary to the position of the Retail Clerks, also included in the unit the two even newer Thrifty Acres stores in Holland and Muskegon, Michigan, one of which, too, had been expanded from a former Meijer supermarket At the time of the 1963 Decision and Direction of Election, the unit therein found appropriate consisted of approximately a thousand employees. The CIU was thereafter certified as bargaining representative. An effort by a local of the International Brotherhood of Teamsters, Chauffeurs and Warehousemen of America, to sever the warehouse from this overall bargaining unit, was rejected by the then incumbent Regional Director for Region 7 in his Decision and Order,5 dated July 19, 1966. In the years that followed, the Respondent Employer continued to open additional Thrifty Acres stores, until by November 1, 1974, under the same corporate structure, Meijer operated a total of 24 stores in various Michigan communities .6 As noted, as each new store was added to the Respondent Employer's chain, it was treated by the Respondents as an accretion to the existing unit and their collectivebargaining. agreement was effectuated at each location .7 Accordingly, it is undisputed that the union-security provision of the collective-bargaining agreement, requiring union membership as a condition of continued employment after a probationary period of 30 days was enforced as to all recently...
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