NLRB Rules That “Additional Stores” Clause Requiring Card Check Recognition for Separate Bargaining Units Is a Permissive Subject of Bargaining

In Supervalu, Inc., 351 NLRB No. 41 (Sept. 30, 2007), the National Labor Relations Board (Board) held that an “additional stores” clause in a collective bargaining agreement—a provision that requires the employer to recognize the union based on a card check at nonunion locations—is a permissive, not mandatory, subject of bargaining. This decision sets an important precedent for all types of card check agreements under which the employees covered by the card check will constitute a separate bargaining unit.

More than 30 years ago, in Kroger Co., 219 NLRB 388 (1975), the Board held that an employer violated Section 8(a)(5) of the National Labor Relations Act (the Act) by refusing to recognize the union based on a card check at additional stores, pursuant to an “after acquired stores” clause. Implicitly, therefore, the Board in Kroger held that such a clause is a mandatory subject of bargaining. Kroger has been followed in more recent cases involving such “additional stores” clauses, such as Raley’s, 336 NLRB 374 (2001).