United Food and Commercial Workers International Union, Local No. 1222, AFL-CIO, CLC (FedMart Stores, Inc.)

National Labor Relations Board - Board Decisions

Jul 13, 1982

262 N.L.R.B. 817 (N.L.R.B. 1982)

UNITED FOOD AND COMMERCIAL WORKERS, LOCAL NO. 1222
United Food and Commercial Workers International
Union, Local No. 1222, AFL-CIO, CLC and
FedMart Stores, Inc. and Teamsters, Chauf-
feurs, Warehousemen and Helpers Local Union
No. 542, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America
FedMart Stores, Inc. and Teamsters, Chauffeurs,
Warehousemen and Helpers Local Union No.
542, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Petitioner. Cases 21-
CD-475, 21-RC-26573, and 21-UC-224
July 13, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a consolidated proceeding under Sections
9(b) and 10(k) of the National Labor Relations Act,
as amended. FedMart Stores, Inc., herein called the
Employer, filed the charge and amended charge in
Case 21-CD-475, alleging that United Food and
Commercial Workers International Union, Local
No. 1222, AFL-CIO, CLC, herein called Local
1222, had violated Section 8(b)(4)(ii)(D) by threat-
ening to take economic action against the Employ-
er in order to compel the Employer to assign
SCORE marking work at certain of its stores to
employees represented by that Union rather than to
employees represented by Teamsters, Chauffeurs,
Warehousemen and Helpers Local Union No. 542,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called Local 542. A hearing
was held on November 4, 5, and 6, 1980, before
Hearing Officer Robert G. Chavarry. All parties
appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-exam-
ine witnesses, and to adduce evidence bearing on
the issues. On November 5, during the course of
the hearing, Local 542 filed petitions in Cases 21-
UC-224 and 21-RC-16573. Thereafter, on Novem-
ber 6, 1980, the Regional Director for Region 21
issued an order consolidating the proceedings in
Cases 21-UC-224 and 21-RC-16573 with the hear-
ing already in progress in Case 21-CD-475, and
transferring the consolidated proceedings to the
Board following the hearing.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
262 NLRB No. 88
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings.
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer is a
California corporation operating a chain of retail
stores in southern California and Arizona. During
the past 12-month period, the Employer derived
gross revenues in excess of $500,000 and received
goods valued in excess of $50,000 directly from
suppliers located outside the State of California.
The parties further stipulated, and we find, that
FedMart Stores, Inc., is an employer within the
meaning of Section 2(2) of the Act.
1I. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
1222 and Local 542 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED DISPUTE
A. The Facts
The Employer operates 15 stores in San Diego
County, California. Local 1222 and Local 542 both
have collective-bargaining agreements with the
Employer covering various employees in these
stores. In April 1979, the Employer introduced its
SCORE marking system, a new price marking and
inventory system, at its Chula Vista store, one of
its San Diego County stores. Seven employees
were selected to operate the system; of those
chosen, five were represented by Local 1222, and
two were represented by Local 542. Subsequently,
in May or June 1979, Local 542's president and
business representative, Jerry Quackenbush, con-
tacted Leland Persons, the Employer's director of
employee relations. Quackenbush inquired about
the SCORE marking system, and was informed by
Persons that the system had been instituted on an
experimental basis. Later, at some point prior to
September 1979, the Employer's personnel repre-
sentative, Judy Gieskie, also told Local 1222's busi-
ness representative, Joe Frichtel, that the SCORE
marking system was still an experimental program,
limited to the Chula Vista store.
In August 1979, Quackenbush contacted Persons,
and told him that Local 542 felt that the SCORE
marking system was no longer experimental, that
the work was within Local 542's jurisdiction, and
that Local 542 would take whatever action was ap-
propriate, including striking, to get the work. On
September 17, 1979, the Employer and Local 542
signed a "Letter of Agreement," which, inter alia,
817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended Local 542's current collective-bargaining
agreement to include SCORE marking employees
in the bargaining unit. The Letter of Agreement
clearly covered all of the SCORE marking em-
ployees, regardless of whether they were members
of Local 1222 or Local 542. On November 28,
1979, the Employer and Local 542 signed another
letter further clarifying the September 17 agree-
ment.
On March 17, 1980, the Employer began to
expand the SCORE marking system to other
stores; by June 1980, the Employer had instituted
the SCORE marking system at 7 of its 15 San
Diego County stores. The great majority of the in-
dividuals selected to operate the SCORE marking
system at these stores were members of Local
1222. See infra. By letter dated April 15, 1980,
Local 1222 informed the Employer that it was in
receipt of the September 17 Letter of Agreement
with Local 542, and that the agreement was an
erosion of Local 1222's contractual bargaining unit.
Local 1222 demanded that the work be returned to
Local 1222 immediately. By letter dated April 17,
1980, the Employer disagreed with Local 1222's
contentions, arguing inter alia that Local 542 had
traditionally had a marker classification in its col-
lective-bargaining agreements. On May 7, 1980,
Local 1222 informed the Employer of its intention
to proceed to arbitration. On May 9, 1980, Local
542 requested that four SCORE marking employ-
ees at the Grossmont store be terminated under the
union-security provision in Local 542's collective-
bargaining agreement for their failure to join Local
542. Subsequently, representatives of the Employ-
er, Local 1222, and Local 542 met, but were unable
to resolve the dispute concerning the SCORE
marking system.
On September 15, 1980, Local 1222 sent a letter
to the Employer, stating that the Employer had
taken work traditionally performed by Local 1222
members and assigned it to employees who were
then required to join Local 542. Local 1222 stated
that this was a contractual violation, and that
Local 1222 would picket, strike, or take other eco-
nomic action unless the Employer remedied the sit-
uation within the 10 days. On September 29 and
October 6, 1980, the Employer filed its charge and
amended charge, respectively, in Case 21-CD-475.
B. The Contentions of the Parties
Local 542 contends that the SCORE marking
work performed in the warehouses of the Employ-
er's stores should be assigned to employees repre-
sented by Local 542 on the basis of Local 542's
collective-bargaining agreement with the Employ-
er, the Employer's assignment, and the skills and
work involved. In the alternative, Local 542 argues
that an election should be held in Case 21-RC-
16573, or that the existing warehouse unit repre-
sented by Local 542 should be clarified to include
the SCORE marking employees in Case 21-UC-
224.
Local 1222 and the Employer both contend that
the SCORE marking work should be assigned to
employees represented by Local 1222 on the basis
of economy, efficiency, the skills and work in-
volved, company and industry practice, and Local
1222's collective-bargaining agreement with the
Employer. Local 1222 and the Employer further
argue that the issue involved herein is a work dis-
pute, and that the Board should therefore grant the
motion made by Local 1222 and the Employer at
the hearing to dismiss both the RC and UC peti-
tions.
C. Applicability of Section 10(k) of the Act
Before the Board may proceed to a determina-
tion of dispute under Section 10(k) of the Act, it
must be satisfied that there is a reasonable cause to
believe that Section 8(b)(4)D) of the Act has been
violated. On the record before us, we are not satis-
fied there is reasonable cause to believe that any
such violation has occurred in this case.
Although the issues in this case have basically
been framed in terms of a work dispute by the par-
ties, it is evident that the dispute herein is not over
the assignment of work to one group of employees
rather than another within the meaning of Section
8(bX4)(D). Rather, the dispute has revolved around
the question of which local shall represent the em-
ployee whom the Employer has chosen, or will
choose in the future, to operate its SCORE mark-
ing system. Thus, when the Employer signed its
September 17, 1979, Letter of Agreement with
Local 542, amending Local 542's collective-bar-
gaining agreement to include the SCORE marking
employees in Local 542's bargaining unit, no new
individuals were then selected to become SCORE
marking employees; instead, the SCORE marking
employees already employed, most of them mem-
bers of Local 1222 (see infra), were required to
become members of Local 542. When Local 1222
subsequently learned of the Letter of Agreement, it
never attempted to have the Employer take the
SCORE marking work away from the individuals
already performing the work and reassign it to new
employees. Rather, Local 1222 demanded that the
Employer recognize it as the representative of the
present SCORE marking employees. Following
Local 1222's protests, the Employer stopped re-
quiring SCORE marking employees to join Local
818
UNITED FOOD AND COMMERCIAL WORKERS, LOCAL NO. 1222
542; meanwhile, the same employees continued to
do the SCORE marking work.
It is well established that a dispute within the
meaning of Section 8(b)(4)(D) requires a choice be-
tween two competing groups.' In this regard, the
Board has stated:2
There must, in short, be either an attempt to
take a work assignment away from another
group, or to obtain the assignment rather than
have it given to the other group.
A demand for recognition as bargaining repre-
sentative for employees doing a particular job,
or in a particular department, does not to the
slightest degree connote a demand for the as-
signment of work to particular employees
rather than to others.
Thus, for the reasons stated above, we conclude
that the dispute herein is not over the assignment
of work to one group of employees rather than an-
other within the meaning of Section 8(b)(4)(D).
Accordingly, since this matter is not a dispute
within the meaning of Section 10(k), we shall
quash the notice of hearing insofar as it relates to
the 10(k) proceeding.
The UC and RC Petitions
On November 5, 1980, Local 542 filed both a
UC and an RC petition, seeking to clarify Local
542's existing unit to include the SCORE marking
employees, or, in the alternative, to have an elec-
tion held in a separate unit of SCORE marking em-
ployees. 3 We find, for the reasons stated herein,
that the SCORE marking employees are an accre-
tion to Local 1222's existing unit, rather than to
Local 542's warehouse unit, and that L6cal 542's
UC and RC petitions should therefore be dis-
missed.
As previously noted, the Employer had institut-
ed, by June 1980, the SCORE marking system at 7
' International Brotherhood of Teamsters. Chauffeurs. Warehousemen and
Helpers of America Local Na 222 (Jelco Incorporated), 206 NLRB 809
(1973).
a Communications Workers of America. AFL-CIO and its District 8 and
its Local Union 8519 (The Mountain States Telephone and Telegraph Com-
pany), 118 NLRB 1104, 1107-08 (1957).
a Local 542's UC petition proposed the following unit clarification:
"All SCORE/CTR (sic] operators and all marker-checkers assigned to
the SCORE remote marking area in the Employer's stores in San Diego
County added to the existing warehouse unit," excluding "[a]ll other em-
ployees, guards and supervisors as defined in the Act, as amended."
Local 542's RC petition requested an election in a unit consisting of "la]ll
SCORE/CTR [sic) operators and all marker-checkers assigned to the
SCORE remote marking aresa in the Employer's stores in San Diego
County," excluding "[all other employees, guards and supervisors as de-
fined in the Act, as amended."
of its 15 San Diego County stores.4 Before the in-
troduction of this system, under the Employer's old
system, employees represented by Local 1222
(hereinafter referred to as "clerks") both inventor-
ied and priced incoming nonfood merchandise, and
stocked it on the shelves for customers. s Under
this previous system, merchandise was initially re-
ceived in the store's backroom, where employees
represented by Local 542 (hereinafter referred to as
"warehousemen") unloaded the trucks, counted
pallets, and staged merchandise either in the back-
room or on the sales floor. Then, clerks would
transport the goods to the sales floor if necessary,
open cases and determine whether the delivered
mechandise was the same as that which had been
ordered, mark prices on the merchandise using a
label gun, and stock the merchandise on the
shelves.
The SCORE marking system is a computerized
replacement for the Employer's old system, which
both inventories and marks incoming merchandise.
Under the SCORE marking system, merchandise is
unloaded and staged in the backroom by warehou-
semen represented by Local 542, in an area desig-
nated as the "remote marking area." This area con-
tains a roller assembly, a "CRT" (cathode ray
tube), and marking tables. At this point, SCORE
marking employees in various classifications, whose
representation is in dispute, process the merchan-
dise. A "sorter" places merchandise on the roller
assembly with the computerized label facing the
"CRT operator." When the CRT operator receives
the merchandise, he keys in certain inventory and
price information, obtained from the case label,
into the CRT. A machine behind the CRT, called
the "remote printer," then prints out the price tick-
ets. Another employee, the "seeder," next removes
the tickets from the remote printer and places them
in the merchandise case, which is then moved
along the roller assembly. Finally, "markers" affix
the tickets to the individual items in the case. The
merchandise is then loaded onto carts according to
store department, and transported by clerks repre-
sented by Local 1222 to the sales floor to be
stocked on shelves.
FedMart receives two types of merchandise at its
store warehouses: (1) FedMart-owned merchandise,
4 Before the introduction of the current SCORE marking system, the
Employer instituted a modified SCORE marking system at its Orosrmont
store (one of the seven San Diego County stores to later receive the cur-
rent SCORE marking system) on an experimental basis. Unlike the cur-
rent SCORE marking system, the Grossmont system was only used to
prepare tickets for direct delivery goods. There was no remote marking
area, or sorters, seeders, and markers, as under the present system. See
infra.
The Employer's food merchandise is not at issue herein. Thus, all ref-
erences to "merchandise" contained infra refer to nonfood merchandise.
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which arrives on FedMart trucks from FedMart's
two central warehouses in Los Angeles and San
Diego; and (2) "direct delivery merchandise" (also
called "vender merchandise"), which is delivered
directly to the store warehouses by other compa-
nies. All of the FedMart-owned merchandise goes
through the SCORE marking system, and is proc-
essed by the SCORE marking employees whose
representation is at issue herein. Direct delivery
merchandise takes a somewhat different route; tick-
ets for the direct delivery merchandise are prepared
by non-SCORE marking employees, but affixed by
the SCORE marking employees. When direct de-
livery merchandise arrives at the warehouse, tick-
ets are prepared in the P.O.S. Room (Point of Sale
Room) by an employee called the "location" or
"warehouse" accounting clerk. The location ac-
counting clerk uses a CRT, located in the P.O.S.
Room, to prepare the tickets.6 After the tickets are
prepared, they are placed in a folder, which is then
picked up by one of the SCORE markers. The
marker marks the direct delivery merchandise, and
places it on a cart, where it is then taken by a clerk
to the sales floor. The P.O.S. Room employees, in-
cluding the location accounting clerk, are repre-
sented by Local 542. Their representation is not at
issue.
Both Local 1222 and Local 542 have collective-
bargaining agreements with the Employer. Local
1222's "General Sales" agreement with FedMart,
which extends from February 28, 1978, to March 2,
1981, provides that the Employer recognizes Local
1222 as the exclusive bargaining representative for
"[a]ll selling and non-selling employees employed
by the Employer in all of its retail stores located
within the geographical jurisdiction of Local 1222
in the County of San Diego, and excluding there-
from, such employees and classifications as pro-
vided for in Addendum 'A"' (the section of the
agreement which sets forth exclusions from the
bargaining unit). Addendum A provides, inter alia,
in section D(4) that "[a]ll employees covered under
a Teamsters contract working within the classifica-
tions of warehousing, receiving, maintenance, jani-
torial, and persons confined to back room produce
wrapping only" shall be excluded from the bar-
gaining unit, Addendum A further provides in sec-
tion C, pursuant to a 1971 agreement between
Local 1222 and Local 542, that, while all new addi-
tional nonfood stockers used in stocking on the
sales floor on or after March 11, 1971, will be cov-
ered under Local 1222's collective-bargaining
6 Warren Lieb, the manager of one of the San Diego stores, testified
that the location accounting clerk spends approximately 4 hours of his
shift preparing price tickets. In addition to the direct delivery tickets, the
location accounting clerk also prepares tickets when prices are changed
on merchandise already on the sales floor.
agreement with FedMart, all Teamsters personnel
working at the current time as stockers may con-
tinue to do the same job and will continue to work
under the Teamsters collective-bargaining agree-
ment. Another section of Local 1222's agreement,
appendix A, lists six job classifications covered by
the agreement; Classification I includes:
Sales Personnel, Stockers, Markers, Clerks and
General Merchandise Cashiers in the following
areas: Camera, Radio, Hardware, Paints,
Sporting Goods, Cosmetics, Auto Accessories,
Liquor, (Major Applicances, T.V., Stereo
Components, Furnitore [sic] in stores of less
than 60,000 square feet), Women's Wear, In-
fants Wears [sic] and Furniture, Toys,
Records, Drapery, Yardage, Millinery, Books,
Stationery, Small Appliances, Photo Accesor-
ies [sic], Luggage, Garden Shop, Sundries,
Health and Beauty Aids, Jewelry, Candy, Cos-
tume Jewelry, Silverware, Homewares, Gifts,
and Men's and Boy's Furnishings.
Local 542's "Central/Stores Agreement" with
FedMart, which extends from March 26, 1979, to
March 28, 1982, recognizes Local 542 as the sole
collective-bargaining representative "for all em-
ployees coming within the classifications covered
by this Agreement, employed by Employer at Fed-
Mart Stores, Inc. operated stores, store warehouses
and The Fed-Mart Corporation Central offices lo-
cated in San Diego County."7 Appendix A, section
D, which provides the "RATE SCHEDULE/-
BRACKETS FOR STORES," lists the following
job classifications:
BRACKET 1: MAINTENANCE, SPOILS,
SALES AUDIT, RECEPTIONIST, CHECK-
ER/MARKER
BRA CKET 2: COURTESY BOOTH,
VAULT, SIGNMAKER, LOCATION AC-
COUNTING, P.B.X. OPERATOR
BRACKET 3: SCORE OPERATOR, WARE-
HOUSE RECONCILER
BRACKET 4: WAREHOUSE PERSONNEL
(INCLUDES FORKLIFT, SHIPPING, RE-
CEIVING)
7At the hearing, the parties stipulated that the correct spelling of the
Employer's name is "FedMart," with no hyphen.
820
UNITED FOOD AND COMMERCIAL WORKERS, LOCAL NO. 1222
"Exhibit B," an additional appendix to Local 542's
collective-bargaining agreement, sets forth descrip-
tions of various jobs in the central offices and Fed-
Mart stores. Exhibit B provides, inter alia, the fol-
lowing store job descriptions:
3. Warehouse.
a. All duties associated with store ware-
house, shipping, receiving, forklift operation,
etc.
b. Maintain facility and merchandise in ac-
cordance with security and safety guidelines.
4. Checker/Marker:
a. Check merchandise against receiving doc-
uments.
b. Mark merchandise.
7. Location Accounting Clerk:
a. Process merchandise transfers.
b. Reconcile receiving documents and in-
voices.
c. Score Operator:
1. Input receiving data to compute.
2. Prepare price tickets.
3. Deduct, via computer, number of items
on receiving documents, but not received.
4. Process price changes (punch price
tickets).
d. Acquaint new personnel in all aspect of
position.
As noted earlier, Local 542's president contacted
the Employer in August 1979, and stated that
Local 542 felt that the SCORE marking work was
within Local 542's jurisdiction, and that Local 542
would take whatever action was appropriate to get
the work. On September 17, 1979, Local 542 and
FedMart signed a "Letter of Agreement," which
stated in relevant part:8
The parties signatory hereto agree to amend
the 1979-82 FedMart Central/Stores Agree-
ment as set forth herein.
1. SCORE/Procedure:
a. Bargaining unit employees who are solely
assigned to their function as markers or in
conjunction with other bargaining unit func-
tions shall receive the hourly progression
rates as set forth in Appendix A.
s The remaining portion of this document, as well as the deletions in
the two other documents cited in this paragraph, basically concern the
"telxon operator" position, which is not at issue herein.
b. Bargaining unit employees who are assigned
as C.R.T. (Terminal) operator shall receive
the hourly progression rates set forth in Ap-
pendix A, subsection D - Bracket 2. These
rates shall be effective September 3, 1979.
It is undisputed that Local 1222 was not informed
of this agreement. On November 28, 1979, the Em-
ployer and Local 542 by letter further clarified
their September 17, 1979, Letter of Agreement as
follows in relevant part:
Per our Letter of Agreement signed on Sep-
tember 17, 1979 and our discussions regarding
same, it was agreed as follows:
1. The SCORE/Marking procedure is current-
ly operational only at FedMart location #256
[the Chula Vista store].
2. Employees currently performing Marking
and C.R.T. functions at location #256 are
listed on the attached sheet which indicates
their current union affiliation, rate of pay, and
new progression step rate effective 9/3/79.
3. In the event these functions are performed
on the store sales floor at any store location,
currently or in the future, such functions shall
be performed by Retail Clerks members as has
been past practice.
On April 15, 1980, Local 1222 sent the Employer's
director of industrial relations a letter which stated
in relevant part:
UFCW, Local 1222 is in receipt of a Fed-
Mart Memorandum dated September 14, 1979
[sic] and a Letter of Agreement regarding (1)
Score/Marking Procedure . . . between Fed-
Mart Corporation and Teamsters Union, Local
542.
It is our contention that this Letter of Agree-
ment is an erosion of UFCW Bargaining Unit -
specifically Appendix A, Classification I:
"Markers" of our Collective Bargaining
Agreement.
The Employer's director of industrial relations re-
sponded, by letter dated April 17, 1980, in relevant
part:
We disagree with your contention that the
letter of agreement with Local 542 is an ero-
sion of your bargaining unit. During our last
negotiations with Local 1222, markers were
specifically inserted under Classification I to
protect the Clerks against Teamsters claiming
marking being done on the floor in the event
we in fact established a marking crew to re-
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place the General Sales Clerks who had been
performing that function.
For your information, Teamsters historically
have had in their agreements a classification
for markers, and the classification was retained
in the current agreement with Local 542, again
with the intent of protecting the Teamsters'
marking area within warehouse functions.
Subsequently, the Employer changed its position,
and argued at the time of the hearing that its
Letter of Agreement with Local 542 was signed
under duress, and that SCORE marking employees
should be represented by Local 1222.
In its brief, Local 542 argues, inter alia, that the
"checker/marker" and "location accounting clerk"
classifications in its Central/Stores Agreement
cover the SCORE marking employees. Local 542
further argues that its September 1979 Letter of
Agreement with the Employer, and subsequent No-
vember 1979 clarification of that agreement, clearly
establish that the SCORE marking employees are
to be covered under Local 542's Central/Stores
Agreement. In support of its contentions, Local
542 argues that the location accounting clerk oper-
ating the CRT in the P.O.S. Room performs the
same functions as the SCORE CRT operator.
We find that the SCORE marking employees are
an accretion to Local 1222's bargaining unit. While
the technology involved is new to the Employer's
operations, the SCORE marking employees per-
form the same basic functions as Local 1222's bar-
gaining unit employees did under the Employer's
previous system; namely. the inventory and price
marking of incoming merchandise. Although the
location of this work has shifted from the sales
floor to the remote marking area in the backroom,
the function of these employees is the same. Just as
under the previous marking system., SCORE mark-
ing employees must be knowledgeable about the
Employer's prices, the number of pieces of mer-
chandise in each case, and the correct placement of
price tickets. It is significant that the overwhelming
majority of employees selected to participate in the
SCORE program were members of Local 1222's
bargaining unit. According to Employer's Exhibit
18, which summarizes the SCORE hiring, there
have been 42 individuals selected to be SCORE
marking employees at the 7 stores involved herein;
of these individuals, 29 were members of Local
1222, 7 were members of Local 542, 4 were new
hires, I was a transfer from a nonunion facility, and
1 was a former security guard whose previous
union affiliation, if any, is not indicated. Warren
Lieb, a manager in one of the Employer's San
Diego stores, testified that clerks were selected as
SCORE marking employees because they already
possessed the requisite skills, and that it was only
necessary to teach them how to use the CRT.
Local 542's warehouse employees, on the other
hand, are basically unfamiliar with the marking and
pricing functions, since their primary functions are
to unload trucks, receive merchandise, count pal-
lets, and stage merchandise.
Contrary to Local 542's argument, the fact that
direct delivery merchandise price tickets are pre-
pared in the P.O.S. Room by a location accounting
clerk represented by Local 542 does not compel a
different result. First, there is a difference in the
skills required by the location accounting clerk and
the SCORE marking employee in operating their
respective CRT's. Store Manager Warren Lieb tes-
tified that the CRT operator in the P.O.S. Room
"is just entering information off of a document tell-
ing the computer to print x-amount of tickets,"
whereas the SCORE CRT operator must be able
to spot incorrect case labels in order to help recon-
cile the Employer's inventory. Thus, while the
P.O.S. Room employee simply enters information
from invoices to the CRT verbatim, the SCORE
CRT operator must be familiar with prices and
packaging, like all of the other SCORE marking
employees. Second, the CRT function is only one
aspect of the location accounting clerk's job, re-
quiring only 4 hours a shift at each store, whereas
the SCORE CRT operator's job is a full-time posi-
tion. Third, it appears that direct delivery mer-
chandise, the only merchandise marked by the lo-
cation accounting clerk, represents a relatively
small portion of incoming merchandise. For exam-
ple, when the modified SCORE marking system
was used on an experimental basis at the Employ-
er's Grossmont store," direct delivery merchandise
constituted only 10-20 percent of the store's mer-
chandise, with FedMart-owned merchandise
making up the remaining 80-90 percent. Fourth,
when the location accounting clerk completes the
direct delivery merchandise price tags, they are not
affixed by a P.O.S. Room employee, but rather by
a SCORE marker. Thus, for the foregoing reasons,
we find that the CRT function in the P.O.S. Room,
performed by only one employee at each location,
does not compel a finding that the SCORE mark-
ing employees are an accretion to Local 542's bar-
gaining unit.
Likewise, we reject Local 542's argument that
the SCORE marking employees are covered under
its Central/Stores Agreement. Although the
"checker/marker" classification was left in the
Central/Stores Agreement at the insistence of
9 See fn. 4, supra
822
UNITED FOOD AND COMMERCIAL WORKERS, LOCAL NO. 1222
Local 542, no member of Local 542 (with the ex-
ception of several employees covered by the 1971
"grandfather" agreement incorporated in Local
1222's collective-bargaining agreement) has been
employed as a FedMart marker for more than 20
years. The "SCORE Operator" referred to in
Local 542's Central/Stores Agreement is the loca-
tion accounting clerk operating the CRT in the
P.O.S. Room, who is not part of the SCORE
marking system at issue herein; Exhibit B, para-
graph 7, of the Central/Stores Agreement, cited
supra, lists the "Score Operator" function as an
aspect of the location accounting clerk's job.' Fi-
nally, we reject Local 542's contention that the
September 1979 Letter of Agreement and subse-
quent November 1979 clarification, which amended
the Central/Stores Agreement, require that the
SCORE marking employees be included in Local
542's bargaining unit. Parties cannot by unilateral
agreement place employees in one unit when they
10 Contrary to Local 542's argument, it is clear that the Bracket 3
"Score Operator" classification was not intended to cover the current
SCORE marking system CRT operators. First, the SCORE marking
system at issue had not been implemented by the Employer at the time
that the Central/Stores Agreement was signed. Second, the September
17, 1979, Letter of Agreement signed by Local 542 and the Employer
provides in par. I(b) that SCORE marking system CRT operators will be
paid at the Bracket 2-not Bracket 3-rate. Common sense suggests that
the parties to the Letter of Agreement would not have included par. I(b),
which amended the Central/Stores Agreement to include the SCORE
marking system CRT operators, if they were already covered by that
agreement under Bracket 3.
belong in another unit. The determination of ques-
tions of representation, accretion, and appropriate
unit do not depend upon contract interpretation but
involve the application of statutory policy, stand-
ards, and criteria. Marion Power Shovel Company,
Inc., 230 NLRB 576, 577 (1977)."
For the foregoing reasons, we find that the
SCORE marking employees constitute an accretion
to Local 1222's General Sales agreement bargain-
ing unit, and that the SCORE marking employees
therefore do not constitute a proper accretion to
Local 542's Central/Stores Agreement bargaining
unit. In view of this finding, we shall dismiss Local
542's UC petition. Since we find that the employ-
ees at issue are part of the bargaining unit repre-
sented by Local 1222, there is no question of repre-
sentation with respect to this group of employees;
accordingly, we shall also dismiss Local 542's RC
petition. 1 2
ORDER
It is hereby ordered that the notice of hearing as
it relates to Case 21-CD-475 be, and it hereby is,
quashed, and that the petitions in Cases 21-UC-224
and 21-RC-16573 be, and they hereby are, dis-
missed.
IL This is especially so here, where it appears that one of the parties-
Local 1222-may have been intentionally excluded from knowledge of
the negotiations leading up to these agreements despite its clear interest
in the matter,
I See Marion Power Showl Company, Inc., supra at 579.
823