Jackson Jitney Jungle Stores, Inc.

374 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD Jackson Jitney Jungle Stores, Inc.' and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 891, AFL-CIO 2 and Retail Clerks, International Association, Local No. 1529, AFL-CIO,3 Peti- tioners. Cases Nos. 15-RC-1296 and 15-RC-1302. February 9, .1956 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Loren P. Jones, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.4 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. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer operates 12 retail grocery stores and a cafeteria in Jackson, Mississippi. The Employer also has some employees who work out of a warehouse in Jackson, Mississippi, belonging to the McCarty-Holman Company, Inc. The Retail Clerks seeks to repre- sent the retail store and cafeteria employees. The Teamsters seeks a unit of employees working out of the warehouse. There is no history of collective bargaining. A. The unit in Case No. 15-RC-1302 The Retail Clerks seeks a unit of all the Employer's retail store and cafeteria employees, including grocery, meal, produce, bakery depart- ments, cafeteria employees, and checkers. The Employer contends that a unit limited to its own stores would be inappropriate in view of the integration and combined central control and management of the Employer and two other corporations, Northern Jitney Jungle Company, Inc., and Southern Jitney Jungle Company, Inc. The The Employer's name appears as amended at the hearing, - z Herein called the Teamsters. 3 Herein called the Retail Clerks. 4 The hearing officer properly sustained both Unions' objections to the Employer's at- tempt to litigate the subject of compliance. The Board has ruled that the compliance status of a union is a matter for administrative determination, and not one to be litigated in representation proceedings. However, the Board will permit parties to a representa- tion proceeding to cause to be instituted an administrative investigation of these matters, which the Board may properly decide in a collateral proceeding. The Dunleavy Company, 114 NLRB 1589. 115 NLRB No. 64. JACKSON JITNEY JUNGLE STORES, INC. 375 Employer contends that the unit should- include the employees of all three corporations.' - The above-mentioned corporations operate 17 retail grocery- stores and a cafeteria in Mississippi. Twelve of these stores and the cafeteria are owned by the Employer and all are located in Jackson, Mississippi. The ownership of the remaining 5 stores is divided between the other 2 corporations. These latter stores are located in towns ranging from 20 to 54 miles away from the main office in Jackson. Each store is under the immediate supervision of a store manager, who is entitled to share in the profits of that store. The store man- ager is responsible for maintaining the stock supply at his store, al- though the main office dictates what merchandise will be carried. Each store manager has the authority to hire, fire, or effectively recommend hiring or firing of, employees under his supervision. He has the power to recommend wage increases, which do not become effective until cleared by the main office. The main office supplies advertising and sets prices and hours of work for all the stores., Personnel and inven- tory records are kept at the main office. The same vacation, hospitali- zation, and life insurance benefits are provided to all of the employees. There has been some degree of employee interchange between the stores.e The stores purchase most of their goods from a wholesale grocery corporation, which is likewise corporately interconnected with the corporations involved herein. The store managers, however, may buy elsewhere if they see fit. The above facts indicate that, although the inain office maintains a general overall supervision of all the stores, the individual store manager is allowed a substantial degree of discre- tion in filling the needs of his particular store. The unit sought by the Retail Clerks includes employees of all the stores within a distinct geographical area. Upon these facts, and in the absence of bargaining history on a more inclusive basis, we find that a unit composed of the Employer's 12 stores in Jackson, Mississippi, is appropriate.? The Employer would exclude the cafeteria employees from the unit on the ground that, it is a separate operation and that these employees lack a community of interest with the store employees. The record shows, however, that the cafeteria adjoins one of the Employer's stores and its manager reports to the supervisor of the store lunchcounters. I The Employer asserts that the Jackson Jitney Jungle Stores, Inc., Northern Jitney Jungle Company, Inc, and Southern Jitney Jungle Company, Inc , form one corporate entity epaiate(l only for tax purposes In view of our decision, we do not find it neces- saiy to resohe the issue as to whether these three corporations constitute a single employer 0 The Employer's general superintendent stated that 50 transfers took place last year among the stores of all 3 corporations. and 5 or 6 had occurred within the last month. Ci ou,n Dh ng Company, 108 NLRB 1126 , L Wsemann Company, 106 NLRB 1167 ; cf. Pappas Company, Inc, 80 NLRB 1272 Member Rodgers would find the appropriate unit to include-the employees of all 17 retail grocery stores and the cafeteria operated by the 3 vorporatrmis in question Accordingly, lie would direct an election in that unit but w ith leave to the Retail Clem ks to withdraw if it so wished 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The manager of the adjoining store receives a peicentage on the profits of the cafeteria: The' employees of the cafeteria are under the same hospitalization plan as the other employees. On the basis of these facts, we find the cafeteria to be an integral part of the overall opera- tion of the stores, and!that the cafeteria employees should be included in the unit. The Retail Clerks would, contrary to the Employer, exclude as supervisors assistant managers and meat market, bakery department, lunchcounter, and produce department managers.' The Employer also contests the exclusion of a parking lot attendant from the Retail Clerks' unit. The assistant managers : The duties of an assistant manager are to order merchandise for the dry grocery part of the store and to ar- range its display. He is entitled to share in the profits of the dry grocery department and occasionally takes over the direction of the employees in the store manager's absence. However, the assistant man- ager has no authority to hire or fire employees or effectively to recom- mend such action, and does not exercise such authority even when the store manager is absent. Because the assistant manager exercises di- rective authority only sporadically, during the absence of the manager, we find that, he is not a supervisor within the meaning of the Act.' The meat market, produce, delicatessen, lunchcounter, and, bakery managers : The meat market, produce, delicatessen, and lunchcounter managers have the responsibility of keeping their departments well stocked and of displaying such stock for sale. The bakery manager's duties are to buy merchandise for the bakery and to prepare formulas. These department managers have no authority to hire or fire any of the employees in their' departments or to recommend such action. The meat market, lunchcounter, and bakery managers receive a commission on the profits made by their departments. The Board has held that such a plan is insufficient by itself to justify their exclusion as super- visors from a unit of fellow employees.' The parking lot attendant: At one of its stores the Employer em- ploys a parking. lot attendant, whom the Petitioner would exclude. His job is to see that customers get free parking and that noncustomers pay a fee. This attendant is also employed and paid by two other stores at the shopping center for performing this same function. In view of his employment relationship with'the Employer, we find that the parking lot attendant should be included in the unit. B. The unit in Case No. 15-RC-1296 The Teamsters seeks a unit of warehouse employees and truck- drivers at 453° North ,Mill Street, Jackson, Mississippi. This address 8 Fanny Farmer Candy Shops, Inc. 112 NLRB 299 9 Fulton Markets, I,icorpo^•4ted,' 93 NLRB 3 JACKSON JITNEY JUNGLE STORES, INC. 377 is the location of the Employer's main office and a warehouse of McCarty-Holman Company, Inc. Of 7 employees employed by the Employer at this location,10 the Teamsters would include 5, these be- ing 2 warehousemen, a combination warehouseman-truckdriver, and 2 over-the-road truckdrivers. The Teamsters would exclude a ship- ping-receiving clerk on the ground that he is a supervisor, and takes no position as to inclusion of the remaining employee, a refrigeration mechanic. The Retail Clerks does not seek to represent any of these employees. The Employer contends that such a unit is inappropriate because it is an integral part of the overall wholesale and retail operations. However, the Board has held that trucking and warehouse units may be appropriate in the retail grocery business when there is no history of bargaining on a broader basis.tt Accordingly, we find that the Em- ployer's warehouse employees and truckdrivers constitute an appro- priate unit. - The shipping-receiving clerk: The duties of the shipping-receiving clerk are to accept merchandise from various manufacturers and to fill and ship orders to retail stores. At times he assists his three helpers, the warehousemen, in the physical handling of the goods. Generally in filling orders the shipping-receiving clerk will call out the items desired from a tally sheet and his assistants will get these items out of stock. He has no authority to hire, fire, or effectively recommend such action. The record shows that his job does not require the use of independent judgment and that his direction and assignment of work to these employees is of a routine nature. We shall include the shipping-receiving clerk in the warehouse unit. The refrigeration ?nechanic: The refrigeration mechanic maintains refrigerators at the warehouse and the stores. The record shows that he has no supervisory authority. While the record does not show under whose supervision he works, he is on the Employer's payroll and works out of the warehouse. As there appears to be no reason for excluding this employee, we shall include him in the unit. We find that the following groups of the Employer's employees constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: A. All the Employer's retail store employees employed in its stores in Jackson, Mississippi, including employees in the grocery, meat, produce, and bakery departments, delicatessen, hinchcounters, and cafeteria ; assistant managers' and grocery department, meat depart- ment, produce department, bakery department, delicatessen, and '" Other narehouse employees at this location are employed by McCarty- Holman and are presently represented for collective b: igaining in a unit of that firm's employees. " Giant Markets, Inc., 107 NLRB, 10 ; Fulton Markets, Incorporated, 93 NLRB 3 (and the cases cited therein). 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lunchcounter managers; checkers; part-time employees; 12 and the parking lot attendant, but excluding all watchmen, guards, and super- visors as defined in the Act. B. All the Employer's warehouse helpers and truckdrivers em- ployed at the warehouse at 453 North Mill Street, Jackson, Missis- sippi, including the refrigeration mechanic and the shipping-receiv- ing clerk, but excluding office and plant clerical employees, guards, professional employees, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] MEMBERS MURDOCK and BEAN took no part in the consideration of the above Decision and Direction of Elections. 19 The inclusion of certain part-time package boys is contested by the Employer. These employees work Friday afternoon and all day Saturday. They sack packages and carry them to cars. There is little turnover and the boys work regularly. Consequently, we find that as regular part-time employees these employees have sufficient interest in com- mon with the regular store employees to require their inclusion in the unit for purposes of representation in collective bargaining. Giant Markets, Inc., 107 NLRB 10 ; L. il'ie- mann Company, 106 NLRB 1167. Consolidated Cigar Corporation and Local 676, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,' Petitioner. Case No. 4-RC-2876. February 9,1956 DECISION AND CERTIFICATION OF REPRESENTATIVES On December 8, 1955, pursuant to a stipulation for certification upon consent election, an election among the Employer's production and maintenance employees was held at Camden, New Jersey, under the direction and supervision of the Regional Director for the Fourth Region. The tally of ballots, which was served upon the parties, shows that of approximately 704 eligible voters, 623 cast ballots, of which 324 were for the Petitioner, 295 were for Local 80-A, Packinghouse Workers, AFL-CIO, 2 were against both unions, and 2 were challenged. Thereafter, Local 80-A filed timely objections to conduct affecting the results of the election. The Regional Director thereupon investi- gated the objections and filed his report and recommendations on ob- jections, finding that the objections did not raise material and substan- tial issues and recommending that they be dismissed. Local 80-A thereafter filed exceptions to the report. 'As the AFL and CIO merged since the execution of stipulation for certification upon consent election , we are taking notice thereof and accordingly amending the names of the Petitioner and the other participating union in this proceeding. 115 NLRB No. 69.