Albertson's Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1992

307 N.L.R.B. 338 (N.L.R.B. 1992)

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-
339ALBERTSON’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.