NLRB v. Foodway of El Paso

Decision Date19 June 1974
Docket NumberNo. 73-2949.,73-2949.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. FOODWAY OF EL PASO, a Division of Kimbell Foods, Inc., Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Elliott Moore, Deputy Assoc. Gen. Counsel, Alan D. Longman, N. L. R. B., Washington, D. C., Milo V. Price, Director, Region 28, N. L. R. B., Albuquerque, N. M., for petitioner.

Stephen H. Naiman, Washington, D. C., for Retail Clerks Int. Assoc., Local 663.

Edward L. Kemble, Fort Worth, Tex., for respondent.

Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.

DYER, Circuit Judge:

This case is before us upon the application of the Board for enforcement of its order issued against Foodway based upon findings that Foodway violated Section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., by refusing to hire any of the non-supervisory unit employees formerly employed by its predecessor, Allied Discount Foods, because of the employees' membership in a union, and the Board's further finding of a violation of Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union. We enforce.

Allied operated three retail grocery stores in El Paso, Texas, one on Montana Avenue, the others on Dyer Street and McRae Street. The latter two stores were non-union. Employees at the Montana Avenue store had been represented by the Union1 since 1967 and were covered by a multi-employer collective bargaining agreement effective for the period April 10, 1969 through April 8, 1973. The agreement contained a separate recognition clause for each employer, and with respect to Allied recognized the Union as the exclusive bargaining representative in a unit embracing the non-supervisory employees at the Montana Avenue store.

On August 19, 1971, Foodway agreed to purchase from Allied the existing leaseholds of the two non-union stores together with the fixtures, equipment, inventory, supplies and business there conducted. Foodway also agreed to hire all of the managerial and rank-and-file employees at both stores.

On August 28, 1971, Allied closed the Montana Avenue store, representing to the employees that this was done because the store was losing money. There were seventeen employees in the bargaining unit at that time, ten of whom were members of the Union. All were fired. Three days later Foodway agreed to purchase from Allied the leasehold of the Montana Avenue store together with the fixtures, equipment, inventory, supplies and business there conducted. Foodway was not required to hire Allied's employees at this store. All three former managerial employees at the Montana Avenue store, however, went on Foodway's payroll on September 4 without any lapse of employment. On September 21, 1971 Foodway reopened the Montana Avenue store conducting the same business as Allied, on the same premises, with substantially the same equipment, although with some unremarkable physical changes.

After the closing of the Montana Avenue store on August 28, thirteen of the seventeen rank-and-file employees attempted to obtain employment with Foodway but were unsuccessful. Two other employees did not apply because they learned that it would be futile to do so. Foodway's Divisional Manager refused to hire any of the Montana Avenue store's former non-supervisory employees, but instead hired all new employees, many of whom were inexperienced and had to be trained. Foodway paid generally lower wages to the rank-and-file employees than the scale had been under the Union's contract with Allied.

The Union attempted to persuade Foodway to recognize and abide by the agreement between Allied and the Union. Foodway countered by offering to pay the Union $1,200 at first and finally $2,500 if the Union would bow out. The Union declined and subsequently filed unfair labor practice charges against Foodway.

Foodway first insists that the Montana Avenue store does not constitute an appropriate unit because the collective bargaining agreement between Allied and the Union was a multi-employer contract. We fail to grasp the significance of this argument since the agreement contained separate recognition clauses and Allied recognized the Union separately as the representative of its employees at the Montana Avenue store.2 Cf. Emerald Maintenance, Inc. v. N.L.R.B., 5 Cir. 1972, 464 F.2d 698. Moreover, Foodway introduced no evidence to demonstrate that the unit described in the collective bargaining agreement was inappropriate, but instead relied on the legal argument made here. In the circumstances of this case we find no misuse of the Board's broad discretion in determining that the Montana Avenue store employees (with the exceptions mentioned in note 2, supra), continued to constitute a unit appropriate for collective bargaining purposes. "We must keep in mind that the Board's unit determination, based on its analysis of the particular set of facts before it, `should not be set aside unless the reviewing court finds that the Board has exercised its discretion in an arbitrary or capricious manner.'" N.L.R.B. v. Baton Rouge Waterworks Co., 5 Cir. 1969, 417 F.2d 1065, 1067, citing Spartans Industries, Inc. v. N.L.R.B., 5 Cir. 1969, 406 F.2d 1002, 1005.

Foodway next argues that substantial evidence on the record as a whole fails to support the Board's finding that Foodway violated Section 8(a)(3) and (1) of the Act by refusing to hire Allied's former Montana Avenue employees because of their union membership. It points out that this store was losing money before the takeover; that none of the former employees were told that they were not going to be hired because they were union members; and that the store was closed and being remodeled and therefore no jobs were available. We are unpersuaded. Foodway was aware of the Allied-Union contract before it formally purchased the store. In contrast to the complete turnover of rank-and-file employees at the Montana Avenue store, non-union rank-and-file employees at the other two stores were hired in toto. Inexperienced workers were hired to replace experienced workers despite one worker's offer to take a wage cut. The Montana Avenue store's employees were denied consideration even for jobs in the other two stores. We give little credence to the reason assigned — the loss of money — for the refusal to hire any of the non-supervisory employees. Reason dictates that the managerial employees, who were retained, not the rank-and-file employees who were fired, should be responsible for failing to take the necessary measures to eradicate the cause of the losses. The First Circuit was faced with a similar situation in N.L.R.B. v. New England Tank Industries, Inc., 1 Cir. 1962, 302 F.2d 273. There the employer contended that its decision not to hire its predecessor's employees stemmed from unexplained gasoline losses which had occurred on the pipeline prior to takeover. Finding that such action violated the Act, the court said:

Despite the presence of a pool of experienced workers, respondent went to considerable length to replace the union employees with entirely new workers — most of whom had no previous experience on pipeline operations. . . . We note that all of respondent\'s far flung affiliates function as "non-union" operations. Taken in context, we believe that it can be fairly said that if not the only reason, the substantial or motivating reason for the respondent\'s refusal to hire the former employees resided
...

To continue reading

Request your trial
20 cases
  • Babbitt Engineering & MacHinery v. Agricultural Labor Relations Bd.
    • United States
    • California Court of Appeals Court of Appeals
    • February 23, 1984
    ...(Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d 743, 764, 195 Cal.Rptr. 651, 670 P.2d 305; N.L.R.B. v. Foodway of El Paso (5th Cir.1974) 496 F.2d 117, 120; Howard Johnson Co., Inc. v. Detroit Loc. Jt. Ex. Bd., etc., supra, 417 U.S. 249, 262, fn. 9, 94 S.Ct. 2236, 2243, f......
  • Smith v. St. Regis Corp., 3:85-cv-140WS.
    • United States
    • U.S. District Court — Southern District of Mississippi
    • March 31, 1994
    ...motivation is not anti-union discrimination or an attempt to avoid dealing with the union. Id. at 264. Accord N.L.R.B. v. Foodway of El Paso, 496 F.2d 117, 119 (5th Cir.1974); Firestone Tire and Rubber Company v. N.L.R.B., 449 F.2d 511, 513 (5th In the case sub judice, Georgia-Pacific purch......
  • Packing House and Indus. Services, Inc. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 21, 1978
    ...U.S. 48, 53, 93 S.Ct. 74, 34 L.Ed.2d 201 (1972); NLRB v. Bausch & Lomb, Inc., 526 F.2d 817, 822 (2d Cir. 1975); NLRB v. Foodway of El Paso, 496 F.2d 117, 119-20 (5th Cir. 1974); Tri State Maintenance Corp. v. NLRB, 132 U.S.App.D.C. 368, 370-71, 408 F.2d 171, 173-74 (1968); K. B. & J. Young'......
  • Rivcom Corp. v. Agricultural Labor Relations Bd.
    • United States
    • California Supreme Court
    • October 17, 1983
    ...L.Ed.2d 61; Phelps Dodge Corp. v. Labor Board (1941) 313 U.S. 177, 185-186, 61 S.Ct. 845, 848, 85 L.Ed. 1271; N.L.R.B. v. Foodway of El Paso (5th Cir.1974) 496 F.2d 117, 119-120.) The growers do not dispute these settled principles. They argue, however, that the record here cannot support t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT