Meijer, Inc. v. N.L.R.B., s. 76-1103

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation564 F.2d 737
Docket NumberNos. 76-1103,76-1125,s. 76-1103
Parties96 L.R.R.M. (BNA) 2738, 82 Lab.Cas. P 10,177 MEIJER, INC., a Michigan Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. CONSOLIDATED INDEPENDENT UNION, LOCAL 951, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Decision Date20 October 1977

Page 737

564 F.2d 737
96 L.R.R.M. (BNA) 2738, 82 Lab.Cas. P 10,177
MEIJER, INC., a Michigan Corporation, Petitioner,
Nos. 76-1103, 76-1125.
United States Court of Appeals,
Sixth Circuit.
Submitted June 10, 1977.
Decided Oct. 20, 1977.

Page 738

Stephen C. Bransdorfer, Norman E. Jabin, Miller, Johnson, Snell & Cummiskey, Charles C. Hawk, Grand Rapids, Mich., John F. Foley, Vicksburg, Mich., for petitioner.

Page 739

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Peter M. Bernstein, Washington, D. C., for respondent.

Before WEICK, EDWARDS and PECK, Circuit Judges.

EDWARDS, Circuit Judge.

Petitioners in these two cases, consolidated for hearing, are Meijer, Inc., a company which operates a chain of super markets and "Thrifty Acres" stores, and the Consolidated Independent Union, which has represented up to this point the nonsupervisory employees in all of said stores. The company corporate headquarters are located in Walker, Michigan, a suburb of Grand Rapids. The Consolidated Independent Union was certified by the National Labor Relations Board as bargaining representative for Meijer's approximately 1,000 employees in 1963 for the "17 retail establishments and (a) warehouse located in Grand Rapids, Michigan, and environs." Since then the company and the union have grown. Nine new stores have been added as "accretions" to the existing bargaining unit. By 1974 Meijer's stores had increased to 25 and spread across Southern Michigan, with a total employment of between 6,000 and 9,000.

In 1974 the store concerned in this dispute opened in Canton Township near Plymouth, Michigan, in the Detroit Metropolitan area. It, too, was treated as an accretion to the general bargaining unit and dues were withheld from the employees for the petitioner, Consolidated Independent Union, Local 951. Shortly thereafter the Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO, filed a charge with the National Labor Relations Board that "accretion" of the Plymouth store to the existing Meijer, Inc.-Consolidated Independent Union bargaining unit violated the National Labor Relations Act. A complaint was issued and after a hearing the Administrative Law Judge and the Board held that the new store constituted an appropriate separate bargaining unit.

The ALJ and the Board entered the following conclusions of law:

3. By assisting and recognizing the Respondent Union as bargaining representative for its employees at its store in Plymouth, Michigan, by maintaining and enforcing a collective bargaining agreement containing union-security provisions at that facility, thereby encouraging membership in the Respondent Union, the Respondent Company has engaged in, and is continuing to engage in, unfair labor practices within the meaning of Section 8(a)(1), (2) and (3) of the Act.

4. By obtaining recognition as bargaining representative at the Respondent Employer's Plymouth, Michigan, store in the absence of support from an uncoerced majority of the employees in that store in a unit appropriate for purposes of bargaining, and by maintaining and enforcing as to the employees at that facility, a contract containing union-security provisions, thereby causing the Respondent Employer to discriminate against employees in violation of Section 8(a)(3) of the Act, the Respondent Union has engaged in, and is continuing to engage in, unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act.

The ALJ also recommended, and the Board agreed, that both the employer and the certified union be required to reimburse the employees for dues and initiation fees which had been "unlawfully exacted from them."


The petitioners contend that the Board improperly failed to follow its own prior decisions concerning a companywide Meijer bargaining unit. Petitioners also argue that the Board failed to apply the correct legal standards of this Circuit in finding the single store to be an appropriate bargaining unit. Additionally, and as a separate issue, the union claims that it was error for the Board to order the company and the union jointly and severally to refund dues collected from the Plymouth store employees because the union and the company were acting

Page 740

in good faith reliance upon the existing contract and there was no organizational or representational claim by any union the Retail Clerks having specifically disclaimed representation.


As indicated above, in 1963 the NLRB found that petitioner Meijer's "17 retail establishments and warehouse," all located in Southwestern Michigan in the general Grand Rapids area, constituted an appropriate bargaining unit. At that time the farthest store from the Meijer headquarters in Walker, Michigan (a suburb of Grand Rapids) was in Battle Creek a distance of 69 miles. In 1966 the Board reaffirmed the appropriateness of this bargaining unit by refusing a petition to recognize a separate bargaining unit for the warehouse.

By 1974, however, Meijer owned 25 stores and had spread its operations clear across the state into Southeastern Michigan. Its employment had increased from approximately 1,000 to over 6,000. Each new store had been "accreted" to the bargaining unit by agreement of the company and the Independent Unions. In the meantime, however, there had been no challenge to (or NLRB review of) the appropriateness of the original 1963 single bargaining unit to encompass the additional 5,000 employees, many of them located in a different industrial area many miles farther from central headquarters than the original group of employees. All of these new employees had simply been required by the company under the terms of its contract to join the Consolidated Independent Union.

We believe that this history allowed (if it did not require) the NLRB to take a fresh look. Material changes in circumstances, as here, may require Board policy changes concerning the bargaining unit. See John's Bargain Store Corporation, 16 N.L.R.B. 1519 (1966); NLRB v. Kostel Corp., 440 F.2d 347 (7th Cir. 1971). As to this issue we find no abuse of the Board's discretion. See 29 U.S.C. § 159(b) (1970).


The legal issues concerning the Board's choice of the Plymouth store bargaining unit are argued from the parties' contrasting points of view in relation to five cases decided in this court: NLRB v. Pinkerton's, Inc., 428 F.2d 479 (6th Cir. 1970); Wayne Oakland Bank v. NLRB, 462 F.2d 666 (6th Cir. 1972); Michigan Hospital Service Corp. v. NLRB, 472 F.2d 293 (6th Cir. 1972); NLRB v. Wolverine Wide World, Inc., 477 F.2d 969 (6th Cir. 1973); Prudential Ins. Co. of America v. NLRB, 529 F.2d 66 (6th Cir.), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976). See also NLRB v. Food Employers Council Inc., 399 F.2d 501 (9th Cir. 1968); Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970).

Petitioners cite and rely upon the Pinkerton and Wayne Oakland Bank cases in arguing that we should set aside the Board's bargaining unit determination. The Board in turn relies upon the Michigan Hospital, the Wolverine and the Prudential cases for support of its order.

The cases reflect that the major considerations in determining an appropriate bargaining unit in relation to a multi-unit company are prior bargaining relationship, distance of the unit from the central office, whether or not employees are interchangeable with other units, the relative autonomy, or lack thereof, of the individual unit, and the extent to which the management of the individual unit can and must deal with the day-to-day issues of the bargaining relationship.

The hearing of this case before the ALJ resulted in the following findings of fact which were directly related to the local autonomy issue. They were entered largely on the credited testimony of the manager of the store in question and were subsequently accepted by the Board:

With respect to local store autonomy, the record revealed that the stores are separately evaluated by central management as to profitability and performance, and that store managers have independent

Page 741

authority to (1) hire new employees, (2) discharge probationary employees, (3) release seasonal employees, (4) discipline employees by way of oral and written reprimands, (5) determine their own work schedule, (6) suspend employees of Meijer's and of the lease departments for serious infractions during working hours such as intoxication or rudeness to customers, pending disposition by the central office, (7) rehire laid off guards on the basis of company need and his estimate of their abilities, without regard to seniority, (8) direct involuntary overtime work in conjunction with the department managers, and are generally in charge of the day-to-day operation of their stores. In addition to the foregoing, Plymouth Store Manager Hildreth testified that he was generally responsible for the hire of the great majority of the employees for his new facility. He also had recommended two of the three line managers for their jobs, had made recommendations for the placement of department managers in his store, all of whom transferred in from other stores, independently designates one of the line managers or the security manager to serve as closing manager. Hildreth further testified that if he planned to be away from the store for less than 1-day, he would independently appoint his replacement. In instances of more prolonged absences and in anticipation of his vacation periods, he would make a recommendation to District Manager Krampe as to who should serve as acting store manager until his return. Krampe would then make the decision. Hildreth has also recommended approximately 30 wage increases for management personnel, all but five or six of...

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