Meijer, Inc., a Michigan Corporation v. National Labor Relations Board, Consolidated Independent Union, Local 951 v. National Labor Relations Board

WEICK, Circuit Judge,

dissenting.

The action by the Board in splitting off the bargaining unit for employees in Meijer’s new store located at Plymouth, Michigan, from the bargaining unit for all of its employees in the entire remaining twenty-four stores in Meijer’s chain (which stores are scattered along the southern half of Michigan’s lower peninsula, all within a radius of 146 miles from Meijer’s headquarters in Grand Rapids) was improper and in my opinion constituted a gross abuse of discretion. The employees of all twenty-five stores at the time were represented by Local 951 Consolidated Independent Union, including the employees of the store at Plymouth, by accretion. This new store at Plymouth was located only eighteen miles from one of Meijer’s stores at Ypsilanti; Plymouth is located one mile closer to Grand Rapids than is Ypsilanti’s location.

The havoc which the Board’s decision will wreak upon Meijer if Meijer is required to bargain and deal with the conflicting claims and demands of two competing and rival labor unions, one union representing employees in a single store and the other union representing the employees in the remaining twenty-four stores of Meijer’s integrated chain, is not difficult to imagine.

The Board’s decision is inconsistent with the principle of exclusive representation, which underlies not only the policy of the National Labor Relations Act but also the Railway Labor Act, and which principle is a central element in the Congressional structuring of industrial relations. This principle was well stated by Mr. Justice Stewart, who wrote the opinion for the Court in Abood v. Detroit Bd. Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (No. 75-1153, decided May 23, 1977):

The principle of exclusive union representation, which underlies the National Labor Relations Act14 as well as the Rail-
way Labor Act, is a central element in the congressional structuring of industrial relations. E. g., Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 62-63 [95 S.Ct. 977, 43 L.Ed.2d 12]; NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 [87 S.Ct. 2001, 18 L.Ed.2d 1123]; Medo Corp. v. NLRB, 321 U.S. 678, 684-685 [64 S.Ct. 830, 88 L.Ed. 1007]; Virginia Ry. Co. v. System Federation No. 40, 300 U.S. 515, 545-549 [57 S.Ct. 592, 81 L.Ed. 789], The designation of a single representative avoids the confusion that would result *745from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employee of collectivization. It also frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations. See generally Emporium Capwell Co. v. Western Addition Community Organization, supra [420 U.S.] at 67-70 [95 S.Ct. 977]; S.Rep. No. 573, 74th Cong., 1st Sess., 13 (1935).

The Board’s decision unnecessarily creates the potential for labor unrest and conflict, and piecemeal unionization for a single employer. It conflicts with prior decisions of the Board, one of which decisions involved Meijer Supermarkets, Inc. and Retail Clerks Local 20, and conflicts also with prior decisions of not only this Court but also of other Circuits as well. It practically destroys the doctrine of accretion which is common in all chain store operations. The proprietor of the chain ought not to be compelled to have a separate bargaining unit every time he opens a new store, particularly when such new store is located within the radius of his other stores.

In 1963 Local 20 of the Retail Clerks Union, as well as its International Association, sought a separate bargaining unit for a new Meijer-Thrifty Acres store which Local 20 contended was a new operation distinct from its supermarkets. The Board reviewed the operations of Meijer, rejecting the contention of Local 20, and stated in Meijer Supermarkets, Inc., 142 NLRB 513, 515-16 (1963):

Despite these differences, the evidence establishes that operations at all of the Employer’s stores are controlled through a central office which plans, coordinates, and directs management policies relative to merchandising practices, pricing, personnel administration, purchasing, and inventory control. The central office also has sole authority to determine the basic layout of the store, the type and variety of the merchandise carried, overall staffing, hours of operation, and major promotional and advertising activities. All stores are serviced by central warehouse and bookkeeping facilities. Intermediate supervision is effected through an operations director and district manager, whose responsibilities are defined by division of the stores into two supervisory districts, each containing both Meijer and Thrifty stores. The operations director and district manager work out of the central office and attempt to visit each store in their respective districts at least once every 2 weeks. The store managers have immediate responsibility for the execution of directives handed down by the central office.
Moreover, there are other important features common to both Thrifty and Meijer stores. The record shows that: There is no difference in the authority of the store managers at Thrifty and Meijer locations; gross revenues from the sale of food items exceed those from nonfood lines at each of the Employer’s stores; merchandise available at all stores is jointly advertised; that all stores are of the self-service, discount variety; the Employer’s private labels are carried in all stores; and both merchandise and personnel are interchanged between Meijer and Thrifty stores.
With the exception of the nonfood classifications covered by the supplement agreement, all employees derive their hourly rates from the basic bargaining agreement. In addition, all employees are covered by a common grievance system, and enjoy all other contractual non-wage benefits. The basic agreement also provides for the exercise of departmental seniority on a companywide basis without differentiating between Thrifty and Meijer stores. Despite the different work responsibilities of certain nonfood employees at the Thrifty stores, the overall skill and experience required of employees at these stores is substantially similar to that possessed by their counterparts at the Meijer Supermarkets.
*746On the basis of the foregoing, we are of the opinion that the Employer’s Thrifty Acres operations represent no more than a normal business expansion of existing facilities and not the establishment of an entirely new operation. Accordingly, and in view of the bargaining history, community of employment interests throughout the chain, high level of centralized management and control, minimal store autonomy, geographic integration, employee interchange, and the absence of any indication that the organizational interests of employees would be impaired if a chainwide unit were found appropriate; we find a unit consisting of employees at all 17 stores and the warehouse to be appropriate herein.

To say the least, Meijer’s chain was well integrated with employees having a community of interests.

At the time of the Board’s decision in Meijer Supermarkets, Meijer had seventeen retail establishments and a warehouse at Grand Rapids. Since the decision Meijer has acquired eight new stores and another warehouse. There is not an iota of proof that Meijer’s mode of operation has been different since the Board’s 1963 decision. The conflict between the two decisions is clear. The only substantial difference pointed out by the Board was the fact that Meijer now has eight more stores and more employees. It is submitted that this is a distinction without a difference, and is immaterial.

In 1966 the Regional Director for NLRB’s Seventh Division, noting the Board’s 1963 decision, rejected an attempt by a Teamster Local to sever the Meijer warehouse, located at Walker, Michigan, a suburb of Grand Rapids, from the rest of the bargaining unit.

A stable bargaining relationship has existed between Meijer and Local 951 Consolidated Independent Union continuously since 1951 when the company’s employees were first organized. During the years following there have been nine collective bargaining agreements, two contract amendments, one contract supplement, and eight wage reopeners. In reaching its decision the Board did not properly evaluate this important relationship.

Another matter not properly taken into account by the Board is the effect of its decision on employee interchange. When the Plymouth store opened in November, 1974, sixty-one employees from other Meijer stores transferred there. During a period of fifteen months, in 1974 and early 1975, ninety-five employees transferred to the Ypsilanti store from other Meijer stores. This could not have been accomplished if there were separate bargaining units in the stores.

It should be noted that Local 876 Retail Store Employees Union, the charging party in the present case, is a sister-Local of Local 20 which filed the unfair labor practice charge in 1963 that the Board rejected.

Prior to the opening of the new store at Plymouth, namely on November 18, 1974, Local 876 advised Meijer by letter that it “does not make any recognition claims and disclaims doing so.” Shortly thereafter, however, Local 876 changed its mind and filed unfair labor practice charges, not only against Meijer but also against Local 951 Consolidated Independent Union. The Board made no finding that Local 876 Retail Clerks represented any of Meijer’s employees in the Plymouth .store; nor was any effort made by Local 876 to organize the employees of the twenty-four remaining stores of Meijer. This would have been a very difficult undertaking in view of the satisfactory manner in which Local 951 has represented the employees. It was much easier for the Retail Clerks Union to split off a single store.1

As noted by the Board in its 1963 decision, such factors as the control by the central office over wages, fringe benefits, layoffs, recall, job bidding, and administra*747tion of the grievance procedure, as well as its overall co-ordination of the company’s labor policies, point toward a centrally-controlled labor policy. The Board did not properly weigh these factors in the present case. Further, the Board has failed to show any difference between the store manager’s minimal autonomy on labor relations in 1963 and that in 1974. This Court, in NLRB v. Pinkerton’s Inc., 428 F.2d 479, 484 (6th Cir. 1970), observed:

Where labor policy is centrally determined, and where a manager of a local unit does not have authority to decide questions of collective bargaining, such a local unit does not constitute an appropriate bargaining unit.

See also NLRB v. Solis Theatre Corp., 403 F.2d 381, 383 (2d Cir. 1968).

In Pinkerton’s, Inc. we followed the decision of the First Circuit in NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir. 1967). In that case the Court rejected the attempt of Local 1435 Retail Clerks International, sustained by the Board, to organize the employees of only one of the employer’s chain of seven stores.

In Wayne Oakland Bank v. NLRB, 462 F.2d 666, 667 (6th Cir. 1972), we stated:

The Courts have found that the important factors entering into the determination of such a unit are; First, the extent of the centralized control of the commercial and administrative aspects of the business and, Second, the extent of centralized control of labor policy. This second factor involves consideration of where matters subject to collective bargaining, such as wage and fringe benefits, are determined, i. e., whether the responsibility resides in the main office or with the branch supervisor.

Accord on the second factor: NLRB v. Pinkerton's, Inc., supra at 484.

A third factor to be weighed is the extent of employee interchange between company stores. Wayne Oakland Bank v. NLRB, supra at 667.

In the present case there is no evidence that the store managers for Meijer had any more autonomy in 1974 than they had in 1963. In fact the record suggests no change in the centralization of the company’s administration and commercial aspects of the business.

During the four years prior to the filing of the unfair labor practice charges, the company’s labor relations department at its headquarters office determined company labor policies. Nonetheless, the local store manager could issue written reprimands, suspend employees, and could represent the company at the first two steps of the grievance procedure, but all according to company policy. The store manager was required to consult with the labor relations department before the completion of the second step of the grievance procedure. Further, the store manager selected his replacement to close the store if he was gone less than one day. The Meijer store manager, as in most retail store chains, had a hand in determining the schedule of an employee’s work hours and vacation time; he could even order an employee to work overtime. In recent years, however, computerization of the employees’ work and vacation schedules has lessened the store manager’s role on work schedules. The store manager also had authority to discharge non-bargaining unit non-supervisory employees, to layoff and recall non-Loeal 951 security guards, and to hire part-time workers within the guidelines set down by the district manager. In the present case the Plymouth store manager even had a hand in the hiring of many of the employees at the Plymouth store. Yet such autonomy in a store manager as hiring authority is not sufficient to justify a separate store bargaining unit. See NLRB v. Davis Cafeteria, Inc., 396 F.2d 18, 20 (5th Cir. 1968); NLRB v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, 897 (7th Cir. 1966).

The decision of the Board not only conflicts with its own decision in 1963, involving Meijer, but it conflicts also with our decisions in Pinkerton’s, Inc. and Wayne Oakland Bank, supra.

In accreting the new store at Plymouth to the other twenty-four stores for collec*748tive bargaining purposes, Meijer and the union relied on the 1963 decision of the Board. Not only did the Board in effect overturn its 1963 decision, but it also imposed a penalty upon Meijer, as well as upon the union, in its so-called remedial order when it ordered both the company and the union to reimburse the employees, who have received the benefits of unionization for the past three years, the amount of their dues and initiation fees with interest.

The Board’s remedial orders ought to be applicable to the circumstances of each case, should not be oppressive, and should effectuate the policies of the Act. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 97 L.Ed. 377 (1953).

Here, the company and the union accreted the Plymouth store employees into the multistore bargaining unit in good faith, based on their successful accretion of other new employees at the other new company stores and based on the decision of the Board in 1963 and the decision of the Seventh Region’s Regional Director in 1966, both of which decisions favored a multistore bargaining unit. Such conduct, guided by the Board’s own past blessings, hardly warranted the Board’s harsh reimbursement remedy order. NLRB v. Masters-Lake Success, Inc., 287 F.2d 35, 36 (2d Cir. 1961). Cf. In talco Aluminum Corp. v. NLRB, 417 F.2d 36, 40-43 (9th Cir. 1969).

The crux of this case was the Board’s failure to analyze properly and to evaluate all the factors which determined the appropriate bargaining unit for the Plymouth store employees, and to give due recognition to its previous 1963 ruling and to the decisions of our Court. Accordingly, enforcement of the Board’s order should be denied.

Title 29 U.S.C. § 151 et seq. been no protest until well after the commencement of dues deductions.

. The Retail Clerks Union could have made an attempt to organize all of Meijer’s stores in 1975 when Local 951’s collective bargaining agreement with Meijer expired. It did not do so; it obviously preferred the split off.