Bargain City, U.S.A., Inc.

BARGAIN CITY, U.S.A., INC.- 803 shows that though the seasonal employees are laid off upon the com- pletion of each operational phase, such as cherry or peach processing, the majority of these employees are rehired during the season to work on the processing of other fruits. Accordingly, as the Employer year after year draws its seasonal employees from the same labor force, composed primarily of former employees, and the seasonal employees work together with and under the same conditions as permanent em- ployees, we find that the seasonal employees have sufficient interest in employment conditions to warrant their inclusion in an overall pro- duction and maintenance unit z As the majority of the temporary or carryover employees work year round, and the remainder work on a seasonal basis, we shall also include them. Accordingly, we find the following unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's plants at Peach Glen, Chambersburg, Orrtanna, and Scotland, Pennsylvania, including employees designated by the Employer as seasonal and tem- porary or carryover employees, plant clerical employees, and truck- drivers, but excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. 5. Petitioner requests that an election be held within 30 days from the date of this Decision using the payroll of December 3, 1960, to de- termine voting eligibility. In view of the seasonal nature of the Em- ployer's operations and the fact that no seasonal employees are cur- rently employed, we see no reason to depart from our usual practice in seasonal industries, and direct that an election be held at or about the peak of the season, on a date to be determined by the Regional Di- rector, among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of the issu- ance of notice of election by the Regional Director. [Text of Direction of Election omitted from publication.] 2 Imperial Rice Mills, Inc., Louisiana Rice Growers , Inc., 110 NLRB 612. Bargain City, U.S.A., Inc' and Local 1034, Retail , Wholesale & Department Store Union, AFL-CIO, Petitioner. Case No. 4-KC-4428. May 25, 1961 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Chester S. Montgomery, I The name of the Employer appears as amended at the hearing. 131 NLRB No. 104. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing officer. The hearing officer's rulings made at the hearing are free from, prejudicial error and are hereby affirmed. 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 [Chairman McCulloch and Members Rodgers and Leedom]. 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. The Intervenor, Retail Clerks International Association, AFL-CIO, contends that its current collective-bargaining contract with Food Fair Stores, Inc., covering all retail Food Fair establishments in a geographical area which includes Horsham, Pennsylvania, bars an election among the food department employees in the Bargain City, U.S.A., store in Horsham. The Employer is the lessee of a store in Horsham, Pennsylvania, and itself leases space in the store to 25 different concessionaires. The food department in the store, referred to as Food City, is leased by the Employer to its subsidiary, Bargain City, Norristown, Inc. The latter has an agreement with Food Fair under which Food Fair man- ages Food City in return for a percentage of the gross receipts. Food Fair is not concerned with any profit or loss sustained in Food City. The public, unaware of the fact that Bargain City, U.S.A., is actually made up of individual concessionaires, is equally unaware that Food City is being managed by Food Fair. There are no signs in the food center bearing the Food Fair name, nor are the Food City employees identified as Food Fair employees. In addition, newspaper advertis- ing is done under the name of Bargain City, U.S.A. Although the manager of Food City, a Food Fair employee, di- rects the day-to-day work of the food department employees, and can hire and discharge them, he is subject to the overall supervision of the Bargain City manager who checks the food department two or three times each day and who can discharge employees, change their duties, and outline their hours of employment. The wages of the food depart- ment employees are paid by Bargain City, Norristown, and the pay- roll is made up by a Bargain City employee. Food Fair is reimbursed by Bargain City, Norristown, for all expenditures made for supplies, repairs, maintenance, and other matters affecting the operation of Food City. In addition, Bargain City, Norristown, pays the fire BARGAIN CITY, U.S.A., INC. 805 insurance on all merchandise delivered to the food market, and also pays the withholding, social security, and unemployment compensa- tion taxes for the Food City employees. The manager of Food City, who formerly managed a Food Fair store, testified that the operating procedures in Food City as regards hiring of employees, purchasing and pricing of merchandise, hours of employment, and method of keeping records is entirely different from that in a Food Fair store. There is no evidence which indicates that Food Fair ever considered its contract with the Intervenor to apply to the employees of Food City. But testimony was adduced that, notwithstanding the contract in question, Food Fair entered into a separate collective-bargaining agreement with one of the Intervenor's local unions for representation of employees employed in the Food Fair concession of a farmers market. It is also significant that the Intervenor did not, attempt to apply the contract to the Food City employees until the present pe- tition was filed. In view of all the above, we find that the contract between Food Fair and the Intervenor does not apply to Food City. Accordingly, we further find that it is not a bar to the petition herein. 4. The Petitioner seeks to represent a unit of all employees at the Employer's Horsham, Pennsylvania, store.2 The Employer agrees that the unit petitioned for is appropriate. The Intervenor, how- ever, objects to the inclusion of the food department employees in a unit with the employees of the other concessionaires.' Bargain City, U.S.A.; creates and attempts to maintain in the public mind the concept that the entire store is operated by one employer.. In furtherance of this, Bargain City has reserved to itself the right to control the labor relations policies for each of its concessionaires, so that the store manager has the authority to resolve a problem of this nature arising anywhere in the store. The food department is an integral part of the Bargain City opera- tion. It is designed to operate at neither a profit nor a loss, but, through reduced prices, to be the means of attracting customers into the store. Each of the concessionaires recognizes that its own success depends on the Food City operation, and for this reason, each of them subsidizes the operation of the food department. The food depart- ment employees work the same hours as all other employees, and use the same washroom facilities, outside parking area, and store entrance as other employees. They punch a separate timeclock only because one is located in the food area, but may, if they wish, use the store's other timeclock. 117Ve find that the employees in the food department have 2 Petitioner excludes the meat department employees who are represented by another union B The Intervenor has indicated its desire to go to an election in whatever unit the Board may find appropriate 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same interests as the employees of the other concessionaires. Ac- cordingly, we shall include them in the unit.' The Employer would exclude the maintenance man from the unit. This employee spends most of his time cleaning up in the food depart - ment and also assists the stock clerks therein . We find that his in- terests are the same as the other food department employees. We include him. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All employees at the Employer's Horsham, Pennsylvania, store, including sales and stock personnel, porters, cashiers, and maintenance men, but excluding meat department employees , guards, and supervisors within the meaning of the Act. [Text of Direction of Election omitted from publication.] 4 Cf. Stack & Company, 97 NLRB 1492. Exchange Parts Company and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Cases Nos. 16-CA-1357 and 16-RC-2637. May 26, 1961 DECISION AND ORDER On February 2, 1961, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint in Case No. 16-CA-1357 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 sustained certain objections to the conduct of a Board-ordered election in Case No. 16-RC-2637 and recommended that the election be set aside. Thereafter, the Re- spondent filed exceptions and objections to the Intermediate Report.' 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 [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ' On March 23, 1961 , pursuant to a motion filed by the Petitioner in Case No. 16-RC-203T, the Board entered an order permitting withdrawal of the petition in that case and severing Cases Nos. 16-RC-2637 and 16-CA-1357, which had previously been consolidated. As Case No. 16-RC-2637 was thereby closed, we do not rule on any of. the Respondent's exceptions and objections insofar as they relate only to Case No . 16-RC-2637. 131 NLRB No. 98.