Valdez Market

National Labor Relations Board - Board Decisions

Feb 27, 1979

240 N.L.R.B. 955 (N.L.R.B. 1979)

VALDEZ MARKET 955
Foster & Foster, Inc. d/b/a Valdez Market and Retail
Clerks Union Local 1496, Retail Clerks Internation-
al Union, AFL-CIO. Cases 19-CA 10089 and 19
CA-10194
Februarv 27. 1979
DECISION AND ORDER
BY MEMBERS PENEI O() Mt RPtII. ANI) TRI 1 SD[)\I
Upon a charge and an amended charge duly filed
by Retail Clerks Union Local 1496, Retail Clerks In-
ternational Union, AFL-CIO. hereafter 'the Union."
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 19. is-
sued a complaint and notice of hearing dated Febru-
ary 28, 1978, and consolidated complaint and notice
of hearing, dated March 8, 1978, against Foster &
Foster. Inc. d/b/a Valdez Market, hereafter 'Re-
spondent." The complaint and consolidated com-
plaint allege that Respondent has engaged in and is
engaging in certain unfair labor practices affecting
commerce within the meaning of Sections 8(a)(5) and
(I) and 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge. amended
charge, complaint, and consolidated complaint and
notice of hearing were duly served on the parties.
Respondent filed an answer to the complaint and an
answer to the consolidated complaint denying the
commission of unfair labor practices. On August 21.
1978, the parties executed a stipulation of facts in
which the parties waived a hearing before an admin-
istrative law judge and the issuance of an administra-
tive law judge's decision and agreed to submit the
case to the Board for findings of fact, conclusions of
law, and an Order based on a record consisting of the
stipulation and the exhibits attached thereto. On Sep-
tember 19, 1978. the Board issued an Order approv-
ing the stipulation and transferring the proceedings
to the Board. Thereafter, the General Counsel and
Respondent filed briefs in support of their positions.
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.
On the bases of the stipulation, the briefs, and the
entire record in this case, the Board makes the fol-
lowing:
FINDIN(;S of: FA(I
I JIRISI)I(' I ION
Respondent is an Alaska corporation with its of-
240 NLRB No. 123
fice and place of business located in Valdez. Alaska,
where it is engaged in the business of operating a
retail grocery store known as Valdez Market. Re-
spondent during the past 12 months, which is a rep-
resentative period, realized gross revenue in excess of
$500,000 from the operation of said Valdez Market.
In addition. Respondent during the past 12 months
purchased and caused to be transferred and deliv-
ered to its Valdez Market goods and materials valued
in excess of $50,000 which were transported to Val-
dez Market directly from States other than the State
of Alaska.
Respondent admits and we find that it is, and at
all times material herein has been, an employer as
defined in Section 2(2) of the Act engaged in com-
merce and operations affecting commerce as defined
in Section 2(6) and (7) of the Act.
1I 1111 I xBOR (ORGilZAI ION INv(OtIV\I )
The Ulnion has been at all times material herein a
labor organization within the meaning of Section
2(5) of the Act.
III ill111 \ (;I 1i I R I \BOR PR\Tl('li
A. FIac s.s
Respondent is engaged in the business of operating
a retail grocery store in Valdez, Alaska. Respondent
and the Union were parties to a collective-bargaining
agreement effective from July 3, 1974, to June I,
1977. The contract covered Respondent's emploqees
in the following unit:
All employees of Respondent at its Valdez Mar-
ket facility: excluding culinarN or bakery pro-
duction department employees and supervisor
employees within the meaning of the Act.
The above-mentioned collective-bargaining agree-
ment contained a standard union-security clause re-
quiring that all employees covered by the contract
become members of the Union within 30 days of em-
ployment by Respondent. The parties stipulated that
at all times material herein and until Januar\ 6, 1978,
the Union has been the collective-bargaining repre-
sentative of employees in the unit.
On November 21. 1977. in Case 19 CA 9782. the
Regional Director approved an informal settlement
agreement between Respondent and the Union in
which Respondent agreed. inter alia,. to recognize the
Union as the exclusive collective-bargaining repre-
sentative of its employees in the above-described unit
and upon request to bargain with the Union re-
specting rates of pay. hours. and other terms and
VALDEZ MARKET
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment and, if an understanding
was reached, to embody such an understanding in a
signed written agreement. The complaint in Case 19
CA-9782 which underlay the settlement agreement
alleged, inter alia, that Respondent, in violation of
Section 8(a)(5) and (1) of the Act, had unlawfully
and unilaterally met with employees and negotiated
new terms and conditions of employment and had
unlawfully withdrawn recognition and refused to
bargain with the Union. Upon Respondent's signing
the settlement agreement, the Regional Director
withdrew the complaint in Case 19-CA-9782.
On November 21, 1977, the Union requested that
Respondent meet and bargain over the wages, hours,
and other terms and conditions of employment con-
cerning the employees in the unit. On December 2,
1977, Respondent and the Union met at the Union's
business office. Respondent was represented by its
attorney, Thomas Owens, Jr., and the Union was
represented by its president, Allen Roberts. At the
meeting, which lasted I hour, the Union submitted a
contract proposal. After inspecting the proposal, Ow-
ens informed Roberts that certain clauses in the pro-
posal were not suitable for Respondent's business
operation and that he would need some time to study
the proposal in order to make a counteroffer. At the
close of the meeting Owens promised to contact
Roberts the following week to set up another negoti-
ation session. During the week of December 7, 1977,
Roberts contacted Owens and scheduled a meeting
for December 21, 1977. The December 21 meeting
was later cancelled by Ownes because he had other
commitments. Between December 21, 1977. and Jan-
uary 5, 1978, the Union made numerous requeses to
set up another bargaining session; Owens was un-
available, however, and a meeting could not be ar-
ranged.
On January 5, 1978, the Union sent Respondent a
letter requesting that Respondent meet and bargain.
On January 6, 1978, Respondent sent the Union a
letter withdrawing recognition. In its letter Respon-
dent explained that on December 23, 1977, manage-
ment officials had received a petition signed by all 22
of its employees which stated that the undersigned
employees no longer desired to be represented by the
Union and requested that Respondent withdraw rec-
ognition from the Union. Based on the employee pe-
tition, Respondent indicated that it was withdrawing
recognition because the Union no longer enjoyed
majority support of the employees. On February 10,
1978, the Union requested that Respondent supply it
with certain information regarding unit employees.
On February 16, 1978, Respondent refused to supply
the requested information based on its withdrawal of
recognition and its stated refusal to bargain and did
not contest the presumptive relevance of such infor-
mation.
The parties' stipulation further indicates that: the
employee petition was signed by 22 of the 22 employ-
ees employed by Respondent on December 23, 1977;
the Union had no knowledge of the petition until
January 11, 1978, when it received Respondent's Jan-
uary 6, 1978, letter; the employee petition was not
sponsored or solicited by Respondent; and during
October, November, and December 1977, only 4 of
Respondent's 22 employees were members of the
Union.
B. Contentions of the Parties
The General Counsel contends that the facts of
this case are governed by the well-established rule set
forth in Poole Foundry and Machine Company, 95
NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir. 1951),
cert. denied 342 U.S. 954 (1952), and that Respon-
dent violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition and failing to bargain for a
reasonable period of time following the execution of
the informal settlement agreement in Case 19-CA-
9782. General Counsel points out that in that settle-
ment agreement Respondent had agreed, inter alia,
to recognize and bargain in good faith with the
Union for a reasonable period of time.
Respondent, on the other hand, contends that it
properly withdrew recognition and was no longer ob-
ligated to bargain with the Union. Respondent ar-
gues that the petition, presented to it by its employ-
ees, indicated that they no longer wished to be
represented by the Union and that the petition obvi-
ated Respondent's prior obligation to recognize and
bargain with the Union for a reasonable period of
time.
C. Analysis and Conclusion
We agree with the General Counsel that Poole
Foundry, supra, is controlling herein and that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition and refusing to bargain
with the Union.' In Poole Foundry respondent therein
tWe have affirmed this policN numerous times. See, for example. Key
Mlotors ( orporation. 232 NLRB 214 (1977). enforcement denied N.L.R.B. v.
K ri .oor Co(rporation, 579 F 2d 1388 (7th C'ir. 1978): Vantran Electric
(rporltron, 231 NLRB 1014 11977). enforcement denied .L.R.B. s. Van-
tramn L.rr- (rporation. 580 F.2d 921 (7th ('ir. 1978): Yellow Front Stores
d h S-Llo* Dit)ount. 205 NRB 449 (1973): .. J MacDonald & Sons.
/n,. 155 N.RB 67 1965), and Stunt lithograph, Inc., 131 NLRB 7. enfd.
297 iF.2d 782 (D.C. Cir. 1961). We recognize that in Key Motors and antran
Eleilric the Sesenth Circuit refused to enforce our orders; with all due
respect to the Seventh Circuit. we decline to acquiesce in those decisions.
We note. however. that the facts of the instant case are distinguishable from
the facts involsed in Key Motors and antran Electric. In both of those
VALDEZ MARKET 957
had executed an informal settlement agreement in
which it had, inter alia, agreed to bargain with the
union. Subsequent to its second negotiating session,
certain of respondent's employees filed a decertifica-
tion petition with the Board. The respondent, relying
on the filing of the decertification petition and assert-
ing a good-faith doubt of the union's majority status,
withdrew recognition and refused to bargain any fur-
ther. We pointed out that:
By executing the settlement agreement, the Re-
spondent acknowledged its obligation to bargain
with the Union. The issue here is how long after
the execution of the settlement agreement that
obligation continued.
It is well settled that after the Board finds that
an employer has failed in its statutory duty to
bargain with a union, and orders the employer
to bargain, such an order must be carried out for
a reasonable time thereafter without regard to
whether or not there are fluctuations in the ma-
jority status of the union during that period.
Such a rule has been considered necessary to
give the order to bargain its fullest effect, i.e.. to
give the parties to the controversy a reasonable
time in which to conclude a contract.... We
therefore hold that after providing in the settle-
ment agreement that it would bargain with the
Union, the Respondent was under an obligation
to honor that agreement for a reasonable time
after its execution without questioning the repre-
sentative status of the Union. We further find
that such a reasonable time had not yet elapsed
when . . . the Respondent refused to bargain
with the Union on the ground that it did not
represent the majority of its employees. [Poole
Foundry, supra, at 36.]
In Poole Foundry we found that a "reasonable time
had not yet elapsed" when respondent refused to
bargain after only two negotiating sessions. In the
instant case, Respondent ceased bargaining and
withdrew recognition after only one negotiating ses-
sion within 2 weeks of the settlement. By no stretch
of the imagination can we conceive of this one nego-
tiating session constituting bargaining for a "reason-
able period of time." As observed by the United
States Court of Appeals for the Fourth Circuit in
cases. the court pointed out that the respondents therein had not signed
settlement agreements based, in part at least. on an underlying charge in-
volving a refusal to bargain. In the instant case, the charge in Case 19 ('A
9782, which underlay the settlement agreement. alleged that Respondent
had violated Sec. 8(a}(5) and () of the Act by unlawfully refusing to bar-
gain with the Union. As stated previously. the Regional Director withdrew
the complaint in Case 19 CA-9782 when Respondent signed the settlement
agreement and agreed to bargain in good faith with the L nion.
enforcing the Board's Order in Poole Foundry.
An entire structure or course of future labor re-
lationships may well be bottomed upon the
binding effect of a status fixed by the terms of a
settlement agreement. If a settlement agreement
is to have real force, it would seem that a reason-
able time must be afforded in which a status
fixed by the agreement is to operate. Otherwise,
settlement agreements might indeed have little
practical effect as an amicable and judicious
means to expeditious disposal of disputes arising
under the terms of the Act. Thus, it follows that
Poole, after having solemnly agreed to bargain
with the Union, should not be permitted, within
three and one-half months after the agreement,
to refuse so to bargain, even if, as here, the
Union clearly did not represent a majority of the
employees. [Poole Foundry and Machine Compa-
ny v. N.L.R.B., supra, at 743-744.]
Accordingly. under the circumstances herein, we
find, in agreement with the Fourth Circuit, that the
policies and purposes of the Act required Respon-
dent to have bargained for a reasonable period of
time subsequent to the signing of the settlement
agreement. As indicated earlier, Respondent's one
bargaining session within 2 weeks of the settlement
does not qualify as a reasonable period of time; and,
therefore, we find Respondent violated Section
8(a)(5) and (1) when it withdrew recognition from
and refused to bargain with the Union, and Respon-
dent further violated Section 8(a)(5) and (1) when it
refused to supply the relevant information requested
by the Union.
IV IE EFFECT OF HE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Foster & Foster, Inc., d/b/a Val-
dez Market, as set forth in section III, above, occur-
ring in connection with its operations described in
section 1, above, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (I) of the Act, we shall
order it to cease and desist therefrom and to take
certain affirmative action in order to effectuate the
policies of the Act.
VALDEZ MARKET
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CoN( I SIONS ()f LAW
1. The Respondent, Foster & Foster, Inc. d/hba
Valdez Market, is and at all times material has been
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks Union Local 1496, Retail Clerks
International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By withdrawing recognition from and refusing
to bargain with the Union, and further by refusing to
supply relevant information requested by the Union,
Respondent has violated Section 8(a)(5) and (I) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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.
Foster & Foster, Inc. d/b/a Valdez Market, Valdez,
Alaska, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain collectively
with Retail Clerks Union Local 1496, Retail Clerks
International Union. AFL-CIO. as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit concerning wages, hours, and
other terms and conditions of employment:
All employees of Respondent at its Valdez Mar-
ket facility: excluding culinary or bakery pro-
duction department employees and supervisory
employees within the meaning of the Act.
(b) Refusing to supply relevant information re-
quested by the Union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policy of the Act:
(a) Recognize and, upon request, bargain collec-
tively with Retail Clerks Union Local 1496, Retail
Clerks International Union, AFL CIO, as the exclu-
sive bargaining representative of the employees in
the aforesaid appropriate unit with respect to wages.
hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody
the terms of each understanding in a written, signed
agreement.
(b) Supply the Retail Clerks Union Local 1496.
Retail Clerks International Union, AFL-CIO, with
the relevant information requested by the Union.
(c) Post at its place of business in Valdez, Alaska,
copies of the attached notice marked 'Appendix." 2
Copies of said notice, on forms provided by the Re-
gional Director for Region 19, after being duly
signed by Respondent's representative, shall be post-
ed by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
2 In the eCent Ihat Ihis Order is en forced h a judgment of a United States
(ourt of Appeals. he s:ords in the notlice reading "Posted h Order of the
National I abor Relations Board" shall read "Posted Pursuant to a Judg-
nent of he United States Court of Appeals Enforcing an Order of the
National I.abor Relations Board.
APPENDIX
Noil(c. To EMPI.OYEES
POSt fD BY ORDER OF IfHE
NAI IONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wll.l. NO refuse to recognize and bargain
collectively with Retail Clerks Union Local
1496, Retail Clerks International Union, AFL-
C'1O. as the exclusive bargaining representative
of our employees in the bargaining unit de-
scribed below.
Wt WILL NOi refuse to supply relevant infor-
mation requested by the Retail Clerks Union
Local 1496, Retail Clerks International Union,
AFL CIO, the statutory bargaining representa-
tive of our employees.
WEt wullL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights of self-organization
to form, join, or assist the above-named or any
other labor organization to bargain collectively
through representatives of their own choosing:
to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection; or to refrain from any or all such
activities except to the extent that such rights
may be affected by an agreement requiring
membership in the labor organization as a con-
dition of employment as authorized in Section
VALDEZ MARKET 959
8(a)(3) of the National Labor Relations Act. as
amended.
WF. wiil. recognize and. upon request. bargain
with Retail Clerks Union Local 1496, Retail
Clerks International Union. AFL C(lO. as the
exclusive bargaining representative of our em-
ployees in the bargaining unit described belona
with respect to wages. hours. and other terms
and conditions of employment and, if an under-
standing is reached. embody such understanding
in a signed agreement. The bargaining unit is:
All employees of Respondent at its Valdez
Market facility: excluding culinary or baker,
production department employees and super-
visor, emplosees within the meaning of the
,Act.
[o(sI R & I()s5T Rd b a VxIZ M1IRKI I