The Great Atlantic & Pacific Tea Co.

In the Matter of TILE GREAT ATLANTIC & PACIFIC TEA COMPANY and RETAIL CLERKS INTERNATIONAL PROTECTIVE ASSOCIATION, LOCAL 1488, A. F. OF L. Case No. ;5-R-18.9.5.-Decided July 13,1946 Kittell, Sawyer c6 Lamb, by Messrs. J. Loren Freund and Richard A. Tilven, of Washington, D. C., for the Company. Joseph A. Padway, by Messrs. Herbert S. Thatcher and Richard Compton, of Washington, D. C., for the Union. Mr. Herbert J. Nester, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Retail Clerks International Protec- tive Association, Local 1488, A. F. Of L., herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of the Great Atlantic & Pacific Tea Com- pany, Baltimore, Maryland, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon Aue notice before Earle K. Shawe, Trial Examiner. The hearing was held at Washington, D. C., on May 8, 1946. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Subsequent to the hearing, the Company, in its brief, moved to dismiss the petition on three separate grounds. For reasons hereinafter stated, the motion is denied. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Great Atlantic & Pacific Tea Company, a New Jersey corpora- tion engaged in the nation-wide purchase, sale, and distribution of 69 N. L. R. B., No. 55. 463 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD groceries, meats, and provisions, has its main office and headquarters in New York City. The organizational structure of the Company con- sists of 7 divisions, which are geographically divided into 42 units. Each geographical unit is subdivided into numerous subdivisions. The Washington subdivision of the Baltimore unit, which alone is involved in this proceeding, consists of 24 stores located within a 25- mile radius of Washington and situated in the States of Maryland and Virginia and the District of Columbia. Merchandise sold annually in the Washington subdivision is valued in excess of $11,000,000, 60 percent of which is distributed to the various stores from the Com- pany's warehouse in Baltimore, Maryland. The remaining 40 per- cent represents merchandise purchased locally by the independent stores, of which an estimated 50 percent originates at points outside the States of Maryland and Virginia and the District of Columbia. We find that the Company in the operation of its Washington sub- division is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Retail Clerks International Protective Association, Local 1488, is a labor organization affiliated with the American Federation of Labor, admitting to membership supervisory employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain of its supervisory em- ployees until the Union has been certified by the Board in an appro- priate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union urges as appropriate a unit composed of the managers of all the stores and markets comprising the Washington subdivision of the Company. The Company, although not opposing the geo- graphical scope of the unit or the supervisory grouping sought, con- tends that the store managers are not employees within the meaning of Section 2 (3) of the Act, inasmuch as they constitute an integral part of management, have a determinative voice in formulation of company policies and methods of operation, and are vested with au- thority to hire, discharge, and change the status of all employees un- der their supervision. THE GREAT ATLANTIC & PACIFIC TEA COMPANY 465 In support of its contention that store managers are not employees within the meaning of Section 2 (3) of the Act, the Company has set forth no compelling argument which has not been previously consid- ered by the Board in recent similar cases wherein it held that compa- rable supervisors are "employees" under this Act.' We find, therefore, that the Company's store managers are "employees" within the mean- ing of Section 2 (3) of the Act. The record discloses that the Company's nation-wide organiza- tional hierarchy, exclusive of executives, consists of a vice president and a superintendent in each geographical unit, with an allotted num- ber of supervisors under them. In the Baltimore unit, there are two supervisors who, together with the superintendent, carry out and maintain the nation-wide policies of the Company with respect to stores in the Washington subdivision. The individual store managers are under the direct supervision of these officials in the Baltimore unit. Although the store managers exercise authority with respect to hire and discharge, rates of pay, vacations, hours of employment, mer- chandising policies, and the general operational activities of their re- spective stores, they are not, however, considered a part of the nation- wide supervisory hierarchy which exercises managerial authority and policy-making functions with respect to all of the Company' s nation- wide operations. It is also contended by the Company that the Union is ineligible to represent the store managers comprising the unit herein sought be- cause of its affiliation with the same parent organization as Local No. 1639A, which represents the rank and file store employees in the Wash- ington subdivision. The issue respecting the status of co-affiliated labor organizations has been previously determined by the Board in a number of recent cases, and in accordance with the Board's decisions therein, we find this contention of the Company to be without merit. Upon consideration of the evidence as a whole, we are of the opinion that the store managers constitute a distinct homogeneous group distinguishable from the Company's nation-wide managerial organiza- tion and that they therefore may be readily segregated into a separate unit for the purposes of collective bargaining.3 We find that the store managers employed by the Company in all markets and food stores comprising the Washington subdivision of ' Matter of Packard Motor Car Company, 61 N. L. R. B. 4, and 64 N. L. R. B. 1212 ; Matter of L. A. Young Spring & Wire Corporation, 65 N. L . R. B. 298; Matter of Carnegie- Illinois Steel Corporation, 67 N. L. R. B. 1238. 2 Matter of Jones It Laughlin Steel Corporation, 66 N. L . It. B. 386 ; Matter of The Curtis Bay Towing Company, at al., 66 N . L. It. B. 1152 ; Matter of American Locomotive Company, 67 N. L. R. B. 1123. = See Matter of Simmons Company, 65 N. L . R. B. 984 ; Matter of General Mills, Inc., 66 N. L. R. B . 1423; Matter of First National Stores , Inc., 68 N. L . It. B. 539; see also Matter of L. A. Young Spring & Wire Corporation, supra. 701592-47-vol. 69-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Baltimore unit, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employ- ees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Di- rection. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act; and pursuant to Article III. Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it ,is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Great Atlantic & Pacific Tea Company, Baltimore, Maryland, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Fifth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regula- tions, among employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Retail Clerks International Protective Association, Local 1488, A. F. of L., for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting : For reasons set forth in my dissenting opinions in Matter of Packard Motor Car Company, 61 N. L. R. B. 4, and 64 N. L. R. B. 1212, and Matter of Jones d Laughlin Steel Corporation, 66 N. L. R. B. 386, I am constrained to dissent from the majority opinion in this case.