Sparkle-McCann Markets

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that represented by the Petitioner without first granting the former group an opportunity, by means of a separate election, to express its desires on the question e We shall, therefore, make no final unit de- termination at this time, but, shall first ascertain the desires . of these employees as expressed in the election hereinafter directed. We shall direct that an election be held among all tool planners, tool designers, tool liaison employees, fabrication specification planners, and tool. service liaison men "A" and "B" T at the Employer's Fort Worth, Texas, division, not performing manual work, excluding all other employees, confidential clerks, foremen , assistant foremen, and all other supervisors as defined in the Act. If a majority of the employees in this voting group vote for the Intervenor, they will be taken to have indicated their desire to con- stitute a separate appropriate unit, and the Regional Director con- ducting the election directed herein is instructed to issue a certification of representatives to the Intervenor for a unit consisting of the em- ployees in the foregoing voting group, which the Board, under such circumstances, finds to be appropriate for purposes of collective bar- gaining. In the event a majority of the employees in the foregoing voting group vote for the Petitioner, they shall be represented by the Petitioner as part of the existing unit of installation planners, plan- ning control men, and planning requirements clerks, and the Regional Director will issue a certificate of results of election to that effect. [Text of Direction of Election omitted from publication in this volume.] Merck & Co., Inc., 98 NLRB 372; Valley Motor Company, 96 NLRB 1416. * In amending its petition, the Petitioner sought to include in the requested unit the employees classified as tool service liaison men "A" and "B." These classifications were established in the Intervenor's unit subsequent to the filing of the instant petition. None of the parties objects to the inclusion in the unit of the employees covered by these classifications. JEFFERSON GROCERY COMPANY OF PITTSBURGH, OPERATING AS SPARKLE- MCCANN MARKETS and AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 424, AFL, PETITIONER. Case No. 6-RC-1094. November 25, 1952 Decision and Direction of Elections Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph C. Thackery, hearing officer. The hearing officer's rujings made at the hearing are free from prejudicial error and are hereby affirmed. 101 NLRB No. 124. SPARKLE-MCCANN MARKETS 587 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles , and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. The Intervenor contends that its contract with a previous owner of the stores involved herein, which contract allegedly was adopted by the Employer and covers all employees except the meat department workers, is a bar to this proceeding. That contract extended from No- vember 1, 1951, to November 1, 1952. Apart from any other considera- tions, as the contract expired by its terms on November 1, 1952, we find that it is not a bar to this proceeding? Accordingly, we find that a question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit composed generally of all meat de- partment and grocery department employees in the Employer's Down- town, East Liberty, Wilkinsburg, Mount Lebanon, and Bellevue, Pennsylvania, retail grocery stores formerly operated by McCann & Company. The Intervenor contends that the unit sought is inappro- priate because of the history of bargaining for these departments on a separate basis. Alternatively, it urges that there should be two sep- arate units, one for meat department employees and one for the grocery department employees. The Employer takes no position on the unit question. The stores involved are divided into two principal departments, a self-service grocery department which handles the usual line of food- stuffs, such as produce and canned goods, and a service meat depart- ment which handles meats, poultry, and fish.' While each of the stores is under the general supervision of a store manager, the meat depart- ment is under separate immediate supervision of a meat manager who supervises the meat cutting and works along with the meat cutters, countermen, and apprentices. Meat cutters are skilled employees who are required to serve a 2-year apprenticeship before being eligible to become journeymen meat cutters. All employees in the meat depart- ments wait on customers, weigh, wrap, and price the merchandise sold. There is no interchange of employees between meat and grocery 1 Retail Clerks International Association , Local 1407 , AFL, herein called the Intervenor, was permitted to intervene at the hearing upon the basis of an adequate interest showing. ' See National Clay Products Company , et at., 98 NLRB 137 ; Twentieth Century-Fos Film Corporation, 96 NLRB 1052 ; and Sylvania Electric Products Inc., 89 NLRB 398. * There are also restaurants in the Downtown and East Liberty stores. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD departments except in cases of emergency, and all employees use com- mon facilities in the stores. The Employer purchased the five stores in question on January 2, 1952, from McCann & Company. During a period of about the last 10 years while the stores were operated by McCann, bargaining was conducted on the basis of separate units of meat department and groc- ery department employees, the former being represented by the Peti- tioner and the latter by the Intervenor. There is some doubt as to whether the most recent contracts were adopted by the Employer after purchase of these stores, although the terms of the existing contracts were generally followed. Bargaining with respect to other stores operated by the Employer has been on the basis of meat department and grocery department employees in a single unit. In the western Pennsylvania area where the present stores are located, bargaining for some retail chain grocery stores has been conducted on the basis of meat and grocery employees in a single unit, and in other chain stores in separate units for each department. Under all the circumstances, including the bargaining history for the stores involved and the nature of their employment, we believe that the employees of the five stores may function either in one unit of both meat department and grocery department employees or in separate units of meat department and grocery department employees.' Accordingly, we shall direct that separate elections by secret ballot be held among employees in each of the following voting groups in the Employer's Downtown, East Liberty, Wilkinsburg, Mount Lebanon, and Bellevue, Pennsylvania, retail grocery stores formerly operated by McCann & Company, including regular part-time em- ployees, but excluding restaurant employees in the Downtown store and employees engaged in the preparation of produce for sale but who do not sell or participate in the actual sale of such produce at the Downtown store, casual employees, maintenance employees, ware- housemen and truck drivers, guards, professional employees, store managers, and other supervisors as defined in the Act : 5 Group 1. All meat department employees. Group 2. All grocery department employees. We shall make no final unit determination at this time but shall first ascertain the desires of the employees as expressed in the elections hereinafter directed. If a majority of the employees in both voting groups select the Petitioner, they will be taken to have indicated their desire to constitute a single unit, and the Regional Director conducting the elections is instructed to issue a certification of representatives to + American Stores, Inc., 80 NLRB 126. 5 Although, as previously indicated, the Petitioner and Intervenor disagree as to the scope of the voting groups, the parties are in agreement as to the composition of these groups. NEWSPAPER AND MAIL DELIVERERS ' UNION 589 the Petitioner for such unit which the Board in that event finds to be appropriate for purposes of collective bargaining. In the event that a majority of the employees, in group 1 select the Petitioner and a majority of the employees in group 2 select the Intervenor, the em- ployees in each will be taken to have indicated their preference for a separate bargaining unit, and the Regional Director is instructed to issue a certification of representatives to the Petitioner or Intervenor, as the case may be, for the separate unit which the Board finds in such .circumstances to be appropriate for purposes of collective bargaining. [Text of Direction of Elections omitted from publication in this volume.] NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY and ARTHUR FINKELSTEIN, ALFRED FRANKEL, CARL GALDSON, THEO- DORE GERSHOWITL, MARTIN IOOE, EDWARD JOHNTRY, NICHOLAS LAU- LETTI, PATRICK LEONARD, WILLIAM MCCLOSKEY, FRANCIS MEADE, JOHN MINOGUE AND EUGENE ROSE NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY and BENNIE IZZI, ON BEHALF OF HIMSELF AND OTHERS AND SIDNEY ROSENTHAL, JOSEPH RILEY, JOHN NICOLINI AND CARL CITRANO, EDWARD JOSEPH GuERIN AND MEYER SACKS. Cases Nos. 2-CB-185, 2-CB-145, 2-CB-870, and 2-CB-381. November 26, 1952 Decision and Order On November 30,1951, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel and certain of the charging parties filed exceptions and supporting briefs. On February 8, 1952, the Board granted permission to New York Mirror Division-the Hearst Corporation to intervene and to file exceptions. The request of the charging parties for oral argument is hereby denied, as the record and the briefs and exceptions, in our opinion, adequately present the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearings and finds that no prejudicial error was committed. 101 NLRB No. 128.