Additional Stores Clause Ruled Permissive Subject of Bargaining

October 13, 2007 by Beeson Tayer & Bodine

In keeping with its hostility to voluntary union recognition, the NLRB in a 2-1 decision has decided that a category of “additional” or “after-acquired stores” clauses are not mandatory subjects of bargaining. Supervalu, 351 NLRB No. 41 (September 30, 2007).

So-called “additional store” clauses extend union recognition to all of the employer’s facilities located within a designated geographic region, including facilities opened or acquired during the term of the contract. In decisions issued in 1982 and 2001, the Board concluded that an employer that refuses to extend recognition as mandated by an additional stores clause violates its duty to bargain in good faith. Because employers violate this duty only when they abrogate terms that are mandatory subjects of bargaining, the Board in these cases necessarily concluded that additional stores clauses are mandatory subjects of bargaining.

But in Supervalu, the Board majority distinguished the previous cases to reach the opposite result. The clauses in the previous decisions clearly mandated that additional stores would be added to the existing bargaining unit. The clause in Supervalu, on the other hand, did not clearly provide that additional stores would be added to the existing unit, only that the employer would recognize the union at those stores.

The Board majority found this distinction decisive. They concluded that this clause, unlike the clauses that accreted new stores to the existing unit, did not “vitally affect” the existing unit employees. Absent the “vitally affects” connection, the clause is not a mandatory subject of bargaining.

Of course an employer’s breach of a contract clause during the term of the contract may normally be addressed through the grievance- arbitration procedure. But where an additional stores clause is involved, because the clause addresses the scope of representation, a topic over which the Board has exclusive jurisdiction, employers may argue that the Board has the final word on alleged breaches of these clauses. In any event, unions are well advised to ensure that any additional stores clauses they have make clear that additional stores or facilities are added to the existing unit and that the terms of the contract are extended to the employees working at the new facility. And remember that the Board generally insists that such clauses may be validly enforced only where the union has obtained authorization cards from a majority of the employees at the new facility.

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