City Markets, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 469 (N.L.R.B. 1984)

CITY MARKETS 469
City Markets, Inc. and Juanita Larson, Terry Paul-
son, Larry D. Beckwith, John 0. Price, William
Portouw, Petitioner and United Food and Com-
mercial Workers, Local No. 7. Cases 27-RD-
614, 27-RD-617, 27-RD-619, and 27-RD-622
14 December 1984
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On petitions duly filed under Section 9(c) of the
National Labor Relations Act, a hearing was held
before Hearing Officer Michael J. Belo. Following
the hearing and pursuant to Section 102.67 of the
Board's Rules and Regulations, the Regional Direc-
tor for Region 27 transferred this case to the Board
for decision. The Employer and the Union filed
briefs.
On the entire record in this case, the Board finds
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The Union is a: labor organization which was
certified as the majority representative of certain of
the Employer's employees.
3. A question of representation affecting com-
merce exists within the meaning of Section 9(c)
and Section 2(6) and (7) of the Act.
The Employer is a Colorado corporation en-
gaged in the retail sale of groceries in Colorado,
Utah, and Wyoming. The Union is the certified
bargaining representative of four separate geo-
graphical units of the Employer's employees in
Colorado. One unit encompasses the Employer's
stores in Grand Junction and Clifton, one the store
in Steamboat Sprinks, one the store in Aspen, and
one the store in Glenwood Springs. The Union and
the Employer were parties to a separate collective-
bargaining contract for each location, all of which
expired on 4 September 1982. When the old con-
tracts expired, the parties were bargaining over the
terms of new contracts but had not yet reached
agreement.
Between 7 September and 8 November 1982 de-
certification petitions were filed by employees from
each of the four Colorado units. Meanwhile, as a
result of charges filed by the Union, the General
Counsel issued a complaint on 15 October 1982 al-
leging, inter alia, that since 5 September 1982 the
Employer had been violating Section 8(a)(5) of the
Act by conditioning its contract offer on employ-
ees' refraining from engaging in protected activity
such as handbilling and picketing. By letters dated
.19 October 1982 the Regional Director informed
the Petitioners from the Aspen, Steamboat Springs,
and Grand Junction units that their petitions were
being dismissed because the alleged violation of
Section 8(a)(5), unremedied at the time the peti-
tions were filed, precluded the finding of •a. question
concerning representation. The letters further in-
formed the Petitioners that the petitions were sub-
ject to reinstatement if appropriate upon their ap-
plication after the disposition of the unfair labor
practice allegations. An identical letter was sent to
the Petitioner from the Glenwood Springs unit on
16 November 1982.
The Union and the Employer continued to nego-
tiate over new contracts while the unfair labor
practice allegations were pending. On 16 February
1983 they entered into collective-bargaining agree-
ments covering each of the four units. The agree-
ments were to be effective retroactively from 5
September 1982 - and to expire on 1 March 1986.
After the agreements were executed, the Union
requested withdrawal of the charges , that prompted
the 15 October 1982 complaint. The Regional Di-
rector approved the withdrawal of the charges and
dismissed the complaint on 21 March 1983. There-
after, on various dates in March, April, and May
1983 the Petitioners from all four of the above-de-
scribed units asked the Regional Director to rein-
state their petitions.
The Union contends that the current and valid
collective-bargaining agreements executed on 16
February 1983 prevent the subsequently requested
reinstatement of the decertification petitions under
the Board's discretionary contract-bar doctrine.'
The Board has established the general rule that
where, as here, a contract of definite duration is re-
duced to writing and executed by both parties, it
will act as a bar for up to 3 years of its term to an
election petition filed by an employee or rival
union after the contract is executed. General Cable
Corp., 139 NLRB 1123 (1962); Appalachian Shale
Products Co., 121 NLRB 1160 (1958); Pacific Coast
Assn. of Pulp Manufacturers, 121 NLRB 990 (1958).
If, on the other hand, a petition is filed before the
execution date of a Contract effective either imme-
diately or retroactively and is otherwise timely, the
contract subsequently entered into will not bar the
processing of the petition and the holding of an
election. Deluxe Metal Furniture Co., 121 NLRB
995 (1958). If the incumbent union prevails in the
election held, any contract executed with the em-
ployer will be valid and binding; but if the union
' The Board has held that in circumstances in which a contract will
normally act as a bar It will be disabled from doing so if, for example, It
does not . contain substantial terms and conditions of employment or em-
brace an appropriate unit The parties do not contend that the contracts
in themselves lack the reciuisites established by the Board for valid con-
tract-bars
273 NLRB No. 71
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loses, the contract will be null and void. See RCA
Del Caribe, Inc., 262 NLRB 963 (1982) (certifica-
tion petition filed by rival union) (same rule applied
to decertification petitions in Dresser Industries, 264
NLRB 1088 (1982)).
Here, the decertification petitions were timely
when originally filed according to the Board's con-
tract-bar rules. Each was filed after the prior con-
tracts had expired and before the new contracts
were executed. The new contracts therefore would
not normally act as a bar to the petitioned-for elec-
tions. The Union urges, however, that the new
contracts do operate as a bar to the elections be-
cause they were executed after the Regional Direc-
tor had dismissed the petitions and before the re-
quests for reinstatement were made; in other
words, during the hiatus in the processing of the
petitions caused by the Regional Director's deter-
mination that, in view of the pending unfair labor
pratice litigation, no question concerning represen-
tation could exist. We, reject the Union's contention
because it attributes undue significance to the Re-
gional Director's dismissal of the petitions here.
As the Union points out, the Regional Director
dismissed the petitions pursuant to the Board's
"blocking charge" policy as exemplified by Big
Three Industries, 201 NLRB 197 (1973). In that
case the Board weighed the right of employees
under Section 9(c) of the Act to decertify their
bargaining representative against the employer's
obligation to bargain in good faith. The Board con-
cluded that where a complaint has issued alleging
that the employer has refused to bargain in viola-
tion of Section 8(a)(5) of the Act and the appropri-
ate remedy if the allegation be proved is an affirm-
ative bargaining order, the employees' opportunity
to decertify the union must be postponed pending
litigation of the bona fides of the employer's bar-
gaining efforts in order to preserve the orderly
procedure of collective bargaining contemplated by
the Act. Accordingly, the Board will sustain the
Regional Director's dismissal of a decertification
petition in the face of unremedied refusal-to-bar-
gain charges under its authority granted by Section
9(c) of the Act to determine if a question of repre-
sentation warranting an election exists. The Re-
gional Director's dismissal of an election petition in
these circumstances does not operate as a determi-
nation that the petition itself is defective, i.e., that it
does not raise a real question concerning represen-
tation because, for example, it lacks a sufficient
showing of interest or is tainted by employer sup-
port. It merely indicates that the petitioner must
await the outcome of the unfair labor practice liti-
gation, at which time he is entitled to request rein-
statement of the petition, and that there is no point
in processing the petition further because the dispo-
sition of the alleged violation of Section . 8(a)(5) of
the Act may lead to the issuance of an affirmative
bargaining order which would preclude an election
for a certain period of time in any event. A dismis-
sal of this kind does not in itself extinguish the em-
ployee right to an election invoked by the timely
filing of a valid decertification petition.2
The unfair labor practice proceedings in anticipa-
tion of which the Regional Director dismissed the
petitions will not take place since the charges have
been withdrawn and the complaint dismissed.
Moreover, the Employer and the Union have re-
turned to the bargaining table and agreed upon
new contracts. The countervailing considerations
that compelled the Board to sustain the dismissal of
the decertification petition' in Big Three Industries
are thus no longer present. 3 Therefore, in accord
with the Board's avowed intent to process valid
petitions and conduct elections as expeditiously as
possible, RCA Del Caribe and Dresser Industries, we
will direct reinstatement of the petitions and the
holding of elections in each of the designated
units.4
2 The Union contends that the Regional Director's determination that
no question concerning representation existed became final upon the fail-
ure of the Petitioners to request review of the dismissal of their petitions
The Union thus seeks to equate the requests for reinstatement with the
untimely filing of new petitions after the current contracts were executed
While the Union's contention that the dismissals were final would be cor-
rect had the petitions been dismissed on their ments, there is no require-
ment that the Petitioners here request such review in order to preserve
their ultimate right to request reinstatement of their petitions following
the unfair labor practice proceedings Moreover, for the purpose of ap-
plying the Board's contract-bar rules the original filing date of a petition
will control where the petition is dismissed on its merits and later rein-
stated pursuant to a favorable ruling on appeal Deluxe Metal Furniture,
supra at 1001 A fortiori, the original filing date of a petition which is
dismissed subject to reinstatement after blocking charges have been re-
solved, as were the petitions here, controls in determining timeliness
- 3 Member Zimmerman finds no merit in the Union's contention that
the withdrawn complaint precludes reinstatement of the petitions The
Union argues that the complaint alleging a violation of Sec 8(a)(5) in-
volved a substantive refusal to bargain Therefore, it urges that it is im-
possible to say whether absent the Employer's refusal to bargain a collec-
tive-bargaining agreement would have been signed prior to the filing of
the petitions The chief difficulty with the Union's position is that it in
effect urges the Board to find that 8(a)(5) allegations are meritorious
solely on the basis that the Regional Director Issued a complaint The
Union has withdrawn the charge, as a result the complaint has been dis-
missed, and no evidence has been presented indicating that the Employer
engaged in conduct which would require a finding that the petitions
should not be processed In these circumstances I find no basis for con-
cluding that the Employer engaged in unfair labor practices which pre-
clude reinstating the petitions
4 Member Hunter agrees with his colleagues that the circumstances of
this case warrant reinstatement of the petitions In doing so, however, he
does not pass on the continued viability of the Board's decision in Big
Three Industries
The parties stipulated at the hearing on the requests for reinstatement
that, should an election be directed, the four existing single location units
as described in the documents comprising the collective-bargaining agree-
ments entered Into on 16 February 1983 are appropriate units
CITY MARKETS 471
[Direction of Elections omitted from publica-
tion.]
CHAIRMAN DOTSON, concurring.
The Employer contends that RCA Del Caribe,
Inc., 262 NLRB 963 (1982), is controlling. That
case holds that an employer must continue to bar-
gain with an incumbent union after a representation
petition is filed, but should the parties execute a
contract, its Validity will rest on the outcome of
the petitioned-for election. The same rule was ap-
plied to the filing of a decertification petition in
Dresser Industries, 264 NLRB 1088 (1982). While I
do not pass on the wisdom of the rule in RCA Del
Caribe and Dresser, which effectively converts a
Board-conducted representation election into a rati-
fication vote on an existing contract, I do agree
with my colleagues that the circumstances here do
not deprive the petitioning employees of their pre-
rogative under Sections 7 and 9(c) of the Act to in-
dicate in a secret-ballot election whether the Union
continues to be the majority representative. I there-
fore concur in the reinstatement of the decertifica-
tion petitions and the direction of prompt elections.