NLRB v. Food Employers Council, Inc., No. 22376.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CHAMBERS, BARNES and CARTER, Circuit
• Citation: 399 F.2d 501
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FOOD EMPLOYERS COUNCIL, INC., and Retail Clerks Union, Local 770, Respondents.
• Docket Number: No. 22376.
• Decision Date: 29 July 1968

399 F.2d 501 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
FOOD EMPLOYERS COUNCIL, INC., and Retail Clerks Union, Local 770, Respondents.

No. 22376.

United States Court of Appeals Ninth Circuit.

July 29, 1968.

399 F.2d 502

Ian Lanoff, Atty., N. L. R. B., Washington, D. C. (argued), Frank H. Itkin, Washington, D. C., Paul A. Cassady, Director, N. L. R. B., Los Angeles, Cal., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Assoc. Gen. Counsel, Washington, D. C., for appellant.

Kenneth Schwartz (argued), of Arnold, Smith & Schwartz, McLaughlin & McLaughlin, Bodle & Fogel, Kessler & Draslin, Los Angeles, Cal., for appellees.

Before CHAMBERS, BARNES and CARTER, Circuit Judges.

BARNES, Circuit Judge:

The National Labor Relations Board petitions, pursuant to section 10(e) of the National Labor Relations Act, 29 U. S.C. § 160(e) (1964), for enforcement against the respondents, the Food Employers Council, Inc., and the Retail Clerks Union, Local 770, of an order issued on March 15, 1967. The Board's decision and order are reported at 163 N. L. R. B. No. 58. The Food Employers Council has filed with this court a waiver of its right to submit oral and written argument, and active opposition to enforcement of the order is undertaken only by the Retail Clerks Union.

At issue is the Board's finding that the respondents committed unfair labor practices when they sought to apply the terms of their collective bargaining agreement to certain employees of the Food Employers Council's members. The Council is comprised of several employers who operate retail food markets in Southern California. For many years the organization has on behalf of its members negotiated master collective bargaining agreements with various labor organizations; such a contract is the one here in question, made effective by respondents for a five-year term on April 1, 1964. The Board found that by attempting to apply its provisions — one of which was a union-security clause — to snack bar employees of the Council's members at a time when the Retail Clerks did not represent a majority of such employees, the Council violated section 8(a) (1), (2), and (3) of the Act, 29 U.S.C. § 158(a) (1), (2), (3) (1964), and the union section 8(b) (1) (A) and (2), 29 U.S.C. § 158(b) (1) (A), (2) (1964).

The evidence is basically undisputed, and both parties agree that the only question before us concerns the propriety of the Board's conclusion that the snack bar employees in question "were not an accretion to the existing unit but instead constituted a separate and distinct operation," and that consequently those employees should be afforded the opportunity to determine for themselves whether they want to be represented by a bargaining agent and, if so, to choose that agent, rather than have such determinations made for them by the Council and the Retail Clerks.

The question of whether a group of employees represents an "accretion" to an existing unit, so that the group is governed by the larger unit's choice of bargaining representatives, is similar to the issue of a particular unit's "appropriateness" for purposes of bargaining. See section 9 of the Act, 29 U.S.C. § 159 (1964); Local 620, Allied Industrial Workers of America, AFL-CIO v. NLRB, 375 F.2d 707, 710-711 (6th Cir. 1967). The general outlines of the accretion issue are fairly set out in the Board's brief:

"An `accretion\' is, by definition, merely the addition of new employees to an already existing group. When the new employees are added and comingled (sic) with existing employees

399 F.2d 503

so as to lose their separate identity, their inclusion in an existing unit follows as a matter of course. Questions arise only when the new group remains identifiable, for example, as when they constitute a separate department or store or plant. In these situations * * * the Board will examine the entire picture before permitting the new employees to be swallowed up by the bargaining representative of the employer\'s other employees without expressing their wishes in the matter. When such inclusion is permitted, on the basis of criteria developed by the Board and approved by the courts * * *, the new group

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