NLRB v. Sunset House
| Decision Date | 08 September 1969 |
| Docket Number | No. 22967.,22967. |
| Citation | 415 F.2d 545 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUNSET HOUSE and Local 399, Building Service Employees' International Union, AFL-CIO, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Allen H. Sachsel (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Lawrence M. Joseph, Atty., Washington, D. C., Roy O. Hoffman, NLRB, San Francisco, Cal., for petitioner.
Harry R. Stang (argued), of Tyre & Kamins, Beverly Hills, Cal., Levy, DeRoy, Geffner & Van Bourg, Los Angeles, Cal., Carroll, Davis, Burdick & McDonough, San Francisco, Cal., for respondents.
Before BROWNING and HUFSTEDLER, Circuit Judges, and BYRNE,* District Judge.
This case arises upon the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), for enforcement of its order. In agreement with the Trial Examiner, the Board found that Sunset House and the Building Service Employees' International Union, Local 399, violated respectively Sections 8(a) (1), (2) and (3) and 8(b) (1) (A) and (2) of the Act, 29 U.S.C. § 158(a) (1), (2) and (3) and 29 U.S.C. § 158(b) (1) (A) and (2). These sections make it an unfair labor practice for an employer or labor organization to interfere with or coerce employees in the exercise of their right to self-organization and to choose their own bargaining representatives. The Board and Trial Examiner found these violations in the attempt of the employer and union to apply their collective bargaining contract, including the union security provisions, to Sunset's new store in San Francisco, without approval of the San Francisco employees. This denied the employees at the new store the right to choose their own bargaining representative.
Sunset House conducts a mail order business from its principal office in Los Angeles. Ninety-two percent of its revenue comes from mail order sales. Sunset House also operates fourteen retail stores, thirteen of which are in the Los Angeles and San Diego area. The respondent union was certified as the official bargaining representative for the employees in the mail order operation and in the eleven stores then in existence in May, 1966. The union and the employer reached a collective bargaining agreement which requires that old employees remain members of the union and that new employees join the union after 30 days, as a condition of employment. This contract was made applicable to all stores then in existence and to all to be opened in the future.
Subsequent to the formation of this bargaining contract, Sunset opened its new store in San Francisco, its only store outside the Los Angeles-San Diego area. Sunset operates all of the stores as an integrated chain, centrally managed at the main Los Angeles office, and with a minimum of local independent control. Store layout, merchandising, and advertising are coordinated with Sunset's mail order business. Every time the company sends out a new catalog, each store's merchandise displays are completely revised to match the pictures in the catalog. Prices are the same in all of the stores. Banking and insurance coverage is also the same for all stores. The main office determines inventory levels for each store. There is centralized control over labor relations, with the central office formulating uniform personnel policies. Yet, contrary to the contention of the company, the Trial Examiner found that the local store manager in San Francisco has the power to hire new employees, subject at most to ratification by the main office. There are uniform employment applications and employee training procedures. Wages, hours, and working conditions are identical throughout the system. Although given the opportunity, there has been no interchange of employees between the San Francisco and other stores.
Before the Board, the company argued that the standard store design and operation, the history of multi-store bargaining, and the certification of the Los Angeles-San Diego unit required a finding that the new store employees were an "accretion" to the existing bargaining unit. An "accretion" occurs when new employees are added to an already existing unit. "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." N.L.R.B. v. Food Employers Council, Inc., 399 F.2d 501, 502 (CA 9, 1968). On the basis of the great geographical distance between the San Francisco store and the other stores, the lack of any employee interchange, and the local manager's hiring and firing power, the Trial Examiner and Board rejected the contention that the new employees were an accretion to the old bargaining unit.
The Trial Examiner and Board reasoned that employees are usually allowed to select their own bargaining representatives and that the accretion doctrine should be applied restrictively as it offends this basic empoyee right. The San Francisco store is 350 miles from the nearest store, 375-385 miles from the main Los Angeles office. The relatively low pay of the employees means that it will be difficult for the San Francisco employees to participate in union activities in Los Angeles. The company argues that the distance is not a crucial factor because the total travel time from the main Los Angeles office to the San Francisco store is only 15 minutes greater than the time from the main office to the San Diego store. But, the real issue here is not travel time: it is the effect of the great distance on the employees' ability to participate in union affairs. It would be much more difficult and expensive for an employee from San Francisco to go to union meetings in Los Angeles than it would be for an employee from San Diego. That there has been no interchange of employees with the San Francisco store tends to support this conclusion. The Board concluded that there was a lack of sufficient community of interest between the 7-10 San Francisco employees and the over 400 Los Angeles-San Diego employees and ordered the company and union to cease applying their collective bargaining contract to the new store until the union is certified as the bargaining representative of the employees...
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