Mead's Thriftway and Mead's Mark-It Foods

National Labor Relations Board - Board Decisions

Jul 20, 1981

256 N.L.R.B. 1250 (N.L.R.B. 1981)

1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mead's Foods of Selah, Inc. d/b/a Mead's Thriftway
and Mead's Mark-It Foods; Mead's Foods of
Yakima, Inc. d/b/a Mead's Mark-It Foods;
Dietzen's, Inc. d/b/a Mead's Thriftway; Mead's
Mark-It Foods; L & R Food Market, Inc.;
Mead's Foods, Inc. of Oregon d/b/a Mead's
Thriftway; Mead's Foods of Umatilla, Inc.
d/b/a Mead's Thriftway; Mead's Foods of
Benton City, Inc. d/b/a Mead's Thriftway; L &
R Market, Inc.' and United Food and Commer-
cial Workers Union Local 1439, affiliated with
United Food and Commercial Workers Interna-
tional Union, AFL-CIO. Case 19-CA-13259
July 20, 1981
DECISION AND ORDER
Upon a charge filed on February 19, 1981, by
United Food and Commercial Workers Union
Local 1439, affiliated with United Food and Com-
mercial Workers International Union, AFL-CIO,
herein called the Union, and duly served on Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 19, issued a complaint on March 6,
1981, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 8,
1980, pursuant to petitions filed by Respondent in
Cases 19-UC-265 and 19-UC-266, the units repre-
sented by the Union were clarified by the Regional
Director for Region 19 in his Decision and Order
Clarifying Units; 2 and that, commencing on or
about February 5, 1981, and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as
the exclusive bargaining representative of the ap-
propriate units as clarified, although the Union has
requested and is requesting it to do so. On March
16, 1981, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
Herein referred to as Respondent.
2 Official notice is taken of the record in the unit clarification proceed-
ing, Cases 19-UC-265 and 19-UC-266, as the term "record" is defined in
Secs. 102.68 and 102.6
9 (g) of the Board's Rules and Regulations, Series 8,
as amended. See LTV Elecroosysrems, Inc., 166 NLRB 938 (1967), enfd.
388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151
(1967), enfd. 415 F.2d 26 (5th Cir 1969); Intertype Co. v Penello, 269
F.Supp. 573 (D.C. Va. 1967), Follett Corp., 164 NLRB 378 (1967), enfd.
397 F.2d 91 (7th Cir. 1968); Sec 9(d) of the NLRA, as amended
256 NLRB No. 188
On April 3, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 8, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
The record establishes that the units that Re-
spondent sought to clarify were:3
All clerks, courtesy clerks, container clerks,
product clerks, bakery sales and snack bar em-
ployees employed by Mead's at its Hermiston,
Oregon, Umatilla, Oregon and Benton City,
Washington locations, excluding meatcutting
employees, guards and supervisors as defined
in the Act. 4
All employees handling or selling merchandise
in Mead's establishments located in Chelan,
Douglas, Kittitas, Klickitatt, Skamania, and
Yakima Counties, excluding meatcutting em-
ployees and guards and supervisors as defined
in the Act.5
The Union has represented the employees in the
Oregon unit since 1970 and has represented the em-
ployees in the Yakima area unit since 1973.
On July 17, 1980, by petitions filed under Section
9(b) of the Act, 6 Respondent sought to exclude all
non food clerk employees employed by it at the
above-mentioned facilities. Thereafter, a hearing
was held before a hearing officer of the National
Labor Relations Board. All parties appeared and
were given full opportunity to participate in the
hearing. The Union and Respondent filed briefs in
support of their respective positions.
On October 8, 1980, the Regional Director for
Region 19 issued a Decision and Order Clarifying
Units in which he found that the nonfood clerks in
question should be included in the bargaining units.
Specifically, with respect to the Yakima area unit,
the Regional Director concluded that, while the
nonfood clerks had some differences in working
conditions compared to the food clerks, they pos-
sessed an overall community of interest with the
3 Formerly there had been three units; however, prior to these pro-
ceedings and by agreement of the parties, to of the units were com-
bined for the purpose of the negotiations under the auspices of Allied
Employers, a multiemployer group
4The Oregon unit.
s The Yakima area unit
6 Cases 19-UC-265 and 19-UC-266.
MEAD'S THRIFTWAY AND MEAD'S MARK-IT FOODS; ET AL. 1251
rest of the food clerks. He therefore determined
that the nonfood clerks were an accretion to the
Yakima area unit.7
For the same reasons, the Regional Director also
determined that the nonfood clerks which Re-
spondent sought to exclude from the Oregon unit
were also an accretion to that unit,8 concluding
that it was proper to clarify a unit in the middle of
an existing collective-bargaining agreement absent
any indication that a party to a contract had aban-
doned its request for inclusion of the disputed em-
ployees in exchange for some concession in negoti-
ations. The Regional Director found that the Union
had never abandoned its position concerning the
nonfood clerk employees.
Thereafter, Respondent filed a timely request for
review which was denied by the Board on January
23, 1981, by telegraphic order. Subsequently the
Union filed the charge in the instant proceeding.
In response to the Notice To Show Cause, Re-
spondent objected to the transfer of this matter to
the Board without a hearing, alleging that a re-
viewing court, if any, would need further informa-
tion to determine whether the Board had fulfilled
its statutory obligation. In its previous answer to
the complaint in this case, Respondent alleged that
the Regional Director's decision was "clearly erro-
neous" and argued, by way of affirmative defense,
that the decision would require it to violate Section
8(a)(1) and (2) of the Act and the Union to violate
Section 8(b)(l)(A) and (2) of the Act.
Review of the record herein reveals that these
contentions are unfounded. By complying with the
Regional Director's Decision and Order Clarifying
Units, in no way would Respondent be in violation
of Section 8(a)(l) and (2) of the Act. It is well set-
tled that, where the Board has determined that dis-
puted employees are an accretion, it has held that
7 The agreement between the parties governing this unit expired on
April 15, 1980. At the time of the Regional Director's decision, the
agreement was in the process of being renegotiated. In the expired agree-
ment, the nonfood clerks were covered in the "variety" classification
Subsequently. the parties entered into an agreement lasting from April 15,
1980, until July 16, 1983. The record is devoid of any evidence as to the
treatment of nonfood clerks in the present agreement
8 Previously, the nonfood clerks had been employed by a firm which
provided these nonfood services to Mead's on a contract basis Beginning
in 1979. the employees were directly hired by Respondent through L &
R Mark-It. At the time that negotiations were ongoing for an agreement
concerning the Oregon unit, there was a dispute as to whether the non-
food clerks would be included in the unit. Negotiations for this agree-
ment took place after the establishment of the nonfood clerk position Re-
spondent and the Union specifically entered into an agreement excluding
Mead's from a provision in the master agreement which provided that
nonfood clerks were to receive a lower wage than other clerks Addition-
ally, the parties agreed to meet at a later time for further negotiations in
an attempt to resolve this issue Subsequently, the parties disagreed as to
whether the nonfood clerks came within the provisions of the master
agreement calling for a lower wage The Union requested that the matter
be resolved by an arbitrator. Respondent refused to agree to arbitrate the
matter and thereafter filed petitions to clarify the units in Cases LUC
265 and 19-UC-266
the employees are a part of the unit already repre-
sented by a labor organization. We would note that
it was Respondent who chose to resort to Board
processes through its filing of unit clarification peti-
tions in Case 19-UC-265 and 19-UC-266, subse-
quent to the Union's request to arbitrate the issue.
It would seem a bit incongruous, on the one hand,
to invoke the Board's processes, and then claim
that to comply with the Board's resolution of the
issue would result in a violation of the Act. Like-
wise, there is nothing in the record to indicate that
the Union, by complying with the Regional Direc-
tor's decision, would be in violation of Section
8(b)(1)(A) and (2) of the Act.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 9
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a series of corporations with of-
fices and places of business in Yakima, Washington,
inter alia, where it is engaged in the business of op-
erating a chain of retail grocery stores. During the
past 12 months, which period is representative of
all times material herein, Respondent, in the course
and conduct of its business operations, had gross
sales of goods and services valued in excess of
$500,000, and purchased and caused to be trans-
ferred and delivered to its facilities within the State
of Washington goods and materials valued in
excess of $50,000 directly from sources outside said
State, or from suppliers within said State, which in
turn obtained such goods and materials directly
from sources outside said State.
I See P'itthur 'h Pulate Glau CIo .' 1. HR B 13 I 14, 14 t 2 (1941)
Rules and RcgLdallions oft he HlBoard Secs 11)2 ht7() ali I(' hq(c}
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers Union
Local 1439, affiliated with United Food and Com-
mercial Workers International Union, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The units
The following employees of Respondent consti-
tute units appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the
Act:
All clerks, non-food clerks, courtesy clerks,
container clerks, produce clerks, bakery sales
and snack bar employees employed by Mead's
at its Hermiston, Oregon, Umatilla, Oregon
and Benton City, Washington locations, ex-
cluding meatcutting employees, guards and su-
pervisors as defined in the Act.
All employees, including non-food clerks, han-
dling or selling merchandise in Mead's estab-
lishments located in Chelan, Douglas, Kittitas,
Klickitatt, Skamania, and Yakima Counties, ex-
cluding meatcutting employees and guards and
supervisors as defined in the Act.
2. The clarification of the units
On October 8, 1980, the Regional Director for
Region 19 clarified the collective-bargaining units
represented herein by the Union in his Decision
and Order Clarifying Units.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about February 2, 1981, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described units. Com-
mencing on or about February 5, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said units.
Accordingly, we find that Respondent has, since
February 5, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate units, and that, by such refusal, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in Section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate units and, if understandings are
reached, embody such understandings in signed
agreements.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. United Food and Commercial Workers Union
Local 1439, affiliated with United Food and Com-
mercial Workers International Union, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. The following groups of employees constitute
units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All clerks, nonfood clerks, courtesy clerks,
container clerks, produce clerks, bakery sales
and snack bar employees employed by Mead's
at its Hermiston, Oregon, Umatilla, Oregon
and Benton City, Washington locations, ex-
cluding meatcutting employees, guards and su-
pervisors as defined in the Act.
All employees, including non-food clerks, han-
dling or selling merchandise in Mead's estab-
lishments located in Chelan, Douglas, Kittitas,
Klickitatt, Skamania, and Yakima Counties, ex-
MEAD'S THRIFTWAY AND MEAD'S MARK-IT FOODS; ET AL. 1253
cluding meatcutting employees and guards and
supervisors as defined in the Act.
4. Since October 8, 1980, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate units for the purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about February 5, 1981, and
at all times thereafter, to bargain collectively wtih
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate units, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Mead's Foods of Selah, Inc. d/b/a Mead's
Thriftway and Mead's Mark-It Foods; Mead's
Foods of Yakima, Inc. d/b/a Mead's Mark-It
Foods; Dietzen's, Inc. d/b/a Mead's Thriftway;
Mead's Mark-It Foods; L & R Food Market, Inc.;
Mead's Foods, Inc. of Oregon d/b/a Mead's
Thriftway; Mead's Foods of Umatilla, Inc. d/b/a
Mead's Thriftway; Mead's Foods of Benton City,
Inc. d/b/a Mead's Thriftway; L & R Market, Inc.,
Yakima, Washington, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Food and
Commercial Workers Union Local 1439, affiliated
with United Food and Commercial Workers Inter-
national Union, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate units:
All clerks, non-food clerks, courtesy clerks,
container clerks, produce clerks, bakery sales
and snack bar employees employed by Mead's
at its Hermiston, Oregon, Umatilla, Oregon
and Benton City, Washington locations, ex-
cluding meatcutting employees, guards and su-
pervisors as defined in the Act.
All employees including non-food clerks han-
dling or selling merchandise in Mead's estab-
lishments located in Chelan, Douglas, Kittitas,
Klickitatt, Skamania, and Yakima Counties, ex-
cluding meatcutting employees and guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate units
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
understandings are reached, embody such under-
standings in signed agreements.
(b) Post at its Hermiston, Oregon; Umatilla,
Oregon; and Benton City, Washington, places of
business and also at its establishments located in
Chelan, Douglas, Kittitas, Klickitatt, Skamania, and
Yakima Counties copies of the attached notice
marked "Appendix." 10 Copies of said notice, on
forms provided by the Regional Director for
Region 19, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 19,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
'o II the eent that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor Relations Board "
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Food and Commercial Workers
Union Local 1439, affiliated with United Food
and Commercial Workers International Union,
AFL-CIO, as the exclusive representative of
the employees in the bargaining units de-
scribed below.
WE WILL NOT In any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
units described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if understandings
are reached, embody such understandings in
signed agreements. The bargaining units are:
All clerks, non-food clerks, courtesy clerks,
container clerks, produce clerks, bakery
sales and snack bar employees employed by
Mead's at its Hermiston, Oregon, Umatilla,
Oregon and Benton City, Washington loca-
tions, excluding meatcutting employees,
guards and supervisors as defined in the Act.
All employees, including non-food clerks,
handling or selling merchandise in Mead's
establishments located in Chelan, Douglas,
Kittitas, Klickitatt, Skamania, and Yakima
Counties, excluding meatcutting employees
and guards and supervisors as defined in the
Act.
MEAD'S FOODS OF SELAH, INC.
D/B/A MEAD'S THRIFTWAY AND
MEAD'S MARK-IT FOODS; MEAD'S
FOODS OF YAKIMA INC. D/B/A
MEAD'S MARK-IT FOODS; DIETZEN'S,
INC. D/B/A MEAD'S THRIFTWAY;
MEAD'S MARK-IT FOODS; L & R
FOOD MARKET, INC.; MEAD'S FOODS,
INC. OF OREGON D/B/A MEAD'S
THRIFTWAY; MEAD'S FOODS OF
UMATILLA, INC. D/B/A MEAD'S
THRIFTWAY; MEAD'S FOODS OF
BENTON CITY, INC. D/B/A MEAD'S
THRIFTWAY; L & R MARKET, INC.