UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
February 4, 1975
RETAIL CLERKS INTERNATIONAL ASSOCIATION LOCAL NO. 455, AFL-CIO, PETITIONER
NATIONAL LABOR RELATIONS BOARD, RESPONDENT; RETAIL CLERKS ASSOCIATION, AFL-CIO, PETITIONER
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
LABOR RELATIONS BOARD, RESPONDENT
Nos. 74-1208, 74-1209 1975.CDC.22
Petitions for Review of Orders of the National Labor Relations Board.
Bazelon, Chief Judge, Robb, Circuit Judge and Parker,* United States District Judge for the United States District Court for the District of Columbia. Opinion for the Court filed by Chief Judge Bazelon.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
Since 1963 Local 455 of the Retail Clerks Union and the grocery stores of the Kroger Company in southern Texas have agreed to collective bargaining contracts which include a so-called "additional store clause." Under such clauses *fn1 the employer agrees to recognize the Union as the bargaining agent for the employees in any stores added to the originally certified bargaining unit after the making of the contract. In Local 455's case, the original unit consists of all Kroger stores in the Company's "Houston Division" which are in the state of Texas. In early 1972, Kroger for administrative reasons transferred two stores from its non-unionized "Dallas Division" into the "Houston Division." On March 22, 1972, the Retail Clerks requested recognition from the Company as the bargaining agent of the employees of those stores on the basis of the "additional store clause" and also proffered concededly valid union authorization cards from a majority of the employees in those two stores. The Company refused to recognize the Union first stating that it did not believe the Union had a majority in the two stores and later arguing that the two stores should be a separate bargaining unit outside of the multi-store "Houston Division" unit. On March 30, 1972 the Company filed representation petitions before the Labor Board seeking a Board-conducted election to determine majority status in the two stores. As is often the case in labor disputes of this ilk, the Union quickly followed with a § 8(a) (5) charge, a charge which in the Board's view takes precedence over the election petition and indeed caused the Regional Director to dismiss the election petition. *fn2
A similar chain of events occurred in Pocatello, Idaho. During 1971 contract negotiations with the Pocatello Multiemployers Bargaining Association, Local 560 of the Retail Clerks Union was able to obtain agreement to an "additional store clause." A few weeks before the Association and Union agreed to a new contract, Smith's Management Corporation, an Association member, purchased an independent grocery -- Frazier's Market -- and authorized the Association to represent it in bargaining with respect to Frazier's. Smith's did sign the agreed-to contract, but only after striking the words "and future" from the "additional store clause" mentioned above and here set out in the margin. *fn3 After Board proceedings, described in more detail below, on June 29, 1972 the Board ordered Smith's to sign the negotiated contract.
On March 28, 1972 Smith's opened Mark-It, a new Pocatello store. On July 17 the Union requested recognition in Mark-It on the basis of the "additional store clause" and also proffered concededly valid union authorization cards from a majority of the new store's employees. *fn4 Smith's refused to recognize the Union and filed a petition for a Board-conducted election. The Union, of course, responded with a § 8 (a) (5) charge and the case moved on to the Board.
In both the Kroger case and the Mark-It case, the Board found that the employer was under no obligation to recognize and bargain with the Union and thus did not violate § 8(a)(5). *fn5 The Board's reasoning was that the "additional store clauses" involved in the two cases did not manifest a complete "waiver" of the employer's right to petition the Board for an election. This right is guaranteed by the NLRA *fn6 and is buttressed by Labor Board policy on recognition on the basis of authorization cards. The latest incarnation of this shifting policy came in Linden Lumber Div., Summer & Co., 190 N.L.R.B. 718 (1971), rev'd sub nom. Local 413, Truck Drivers v. NLRB, 159 U.S. App. D.C. 228, 487 F.2d 1099 (1973), reinstated sub nom. Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 95 S. Ct. 429, 42 L. Ed. 2d 465 (1974). There the Board held that the employer had no obligation to recognize a union on the basis of authorization cards unless there is an agreement between the parties on an alternative means for resolving the question of recognition. *fn7 In the Kroger case, the Board held that Linden Lumber's language on voluntary agreement referred only to agreement after the relevant employees had been determined and not to agreement as to future employees whose identity is not yet known. *fn8 The Board thought it proper to use this authorization card policy to interpret the "additional store clause" in the absence of the above-mentioned complete "waiver" of the employer's rights under that policy.
In two cases decided after Linden Lumber but before the instant cases, the Board held that "additional store clauses" were a legal subject of bargaining. Smith's Management Corporation *fn9 involved the previously mentioned Smith's Frazier's Market. There the Board held that the employer could not refuse to sign a collective bargaining agreement which contained an "additional store clause." In White Front Stores *fn10 the Board held, as one ground for decision, that a union did not violate § 8(b)(2) *fn11 when it applied economic pressure on an employer to obtain recognition when the employer had agreed to an additional store clause and the union presented valid authorization cards from a majority of the relevant employees. In both these cases the Board made its holding contingent upon a sufficient presentment of majority support for the union such that the employer would not violate § 8(a)(2) by recognizing the union. *fn12
The Board in the Kroger case, and by implication in the Mark-It case, purported to reaffirm Smith and White Front Stores. However, at a minimum the Board must admit that it has altered the holdings of those two cases. In the instant cases the Board not only requires a sufficient presentment of majority support for the union to avoid § 8(a)(2) problems but further requires specific evidence that the employer has "waived" resort to Board election procedures. We would be inclined to affirm even this sub silentio modification if we were convinced that the Board's "waiver" argument is sound. However, we think it is not and on that ground reverse the Board's determination in these two cases.
The Board's "waiver" argument is couched in terms of contract interpretation. Though we recognize that it is interpretation with an eye to existing labor policy, a certainly permissible practice, it is interpretation nevertheless. The Board's argument to the extent it relies on contract interpretation alone, and not enunciation of policy, is entitled to no particular deference. *fn13 The problem with the Board's suggested interpretation is illumined by the following question: if the "additional store clauses" involved in these cases do not constitute a "waiver" of the employer's right to a Board-conducted election, what do they mean? The Board's opinion in the Kroger case suggests that an "additional store clause" would be permissible if it specifically described a recognition procedure other than a Board ordered election. But this simply restates the question. What ambiguity is there in the present clauses which suggests that present clauses do not specify that some, indeed, any method other than a Board ordered election of recognition is agreeable to the parties?
The answer to the question is that the "additional store clause" can have no purpose other than to waive the employer's right to a Board ordered election. If the clause is "interpreted" to permit the employer to petition for a Board election, then the clause means nothing to the union. The union and the employer have under the NLRA a right to seek an election. They do not need a contract clause to grant them that right. *fn14 It follows that if the clause is interpreted to permit the employer to petition for an election, the clause is a nullity since it permits the employer to do what he could do without a contract. We conclude that the "additional store clauses" involved here can only be interpreted to mean that the employer waives its right to a Board ordered election. *fn15 The specific non-election recognition procedures which the clauses permit is a matter for the parties to consider in the first instance and we express no opinion whether authorization cards or other procedures may be utilized or objected to consistent with the clauses in issue here. *fn16
A careful reading of the Board's opinion in the Kroger case suggests that the true purpose of the ruling was not to interpret the contract but to declare that "additional store clauses" are inconsistent with authorization card policy and, therefore, illegal. Both in its opinion and at oral argument, the Board intimates that authorization cards (and perhaps other non-election recognition procedures) are insufficiently reliable and inherently coercive of the § 7 rights of employees and that any employer agreement in advance to recognize on the basis of such procedures is not permissible. *fn17 The Supreme Court in Linden Lumber clearly avoided this issue *fn18 and this intimated position would have to confront the legislative history which indicates that Congress intended to permit non-election recognition procedures. *fn19 But we are not prepared to state that this position is so unreasonable that the Board should be ordered instanter to find Kroger and Smith's in violation of § 8(a)(5). Rather we decide to remand the cause to the Board. If it wishes to overtly advance the position we suggest above, it should over-rule White Front Stores and Smith's Management Corporation and explicate why national labor policy requires that "additional store clauses" be held illegal. But the Board may not attempt, as it has done here, to accomplish this result through a process of statutory construction which purports to uphold the legality of "additional store clauses" while silently nullifying them. *fn20 We, therefore, reverse the Board's decisions in these two cases and remand for proceedings consistent with this opinion.
APPELLATE PANEL: FOOTNOTES
* Sitting by designation pursuant to 28 U.S.C. § 292(a).