The Great Atlantic & Pacific Tea Co.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY 799 The Great Atlantic & Pacific Tea Company and Retail Clerks International Association, Local 1435, AFL-CIO and Amal- gamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, Petitioners. Cases Nos. 1-RC- 6409 and 1-RC-6429. August 7, 1961 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Harold N. Mack, 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 employees of the Employer. 3. Questions affecting commerce exist concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the the Act. 4. The Retail Clerks seeks to represent a unit of all employees, including meat department employees, assistant store managers, meat department heads, and regular part-time employees in the 15 stores in the Portland, Maine, region which comprise a supervisory area of the Employer's Portland, Maine, administrative unit. The Meat Cutters seeks to represent a separate unit of meat department employees, including meat department heads and regular part-time employees in the same stores. The Employer contends that an appropriate unit should consist of all employees, including meat department employees, in all stores in its Portland administrative unit. The Employer fur- ther contends that assistant store managers and meat department heads are supervisors and should be excluded from, and that only regular part-time employees who work at least 20 hours per week should be included in, any unit or units found appropriate. The Portland, Maine, unit is one of seven administrative units in the Employer's New England division. It covers 102 stores, 74 of which are located in Maine, 23 in New Hampshire, and 5 in Vermont. There are between 650 and 700 employees in these stores. The Port- land unit is subdivided into seven supervisory areas. The geographic unit sought by both Petitioners consists of 15 stores within approxi- 132 NLRB No. 60. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately 60 miles of Portland, Maine. They are all under the super- vision of Area Supervisor Kilbourne. There is no history of col- lective bargaining for any of the employees sought herein. Personnel policies for all stores within the Portland unit are uni- form and are formulated by the unit head pursuant to policies estab- lished by the New England division. Wages, life insurance, hospitali- zation, sick pay, and other benefits are also uniform throughout the unit. In addition, • purchasing, advertising, and sales are centrally directed•from the unit office in Portland, and the Portland warehouse services all 102 stores. Working directly under the unit head is the unit superintendent who is responsible for the overall efficient operation of all stores in the unit. Meat and produce specialists work out of the unit office also, but these specialists are directly responsible to the supervisor of the area which they are inspecting and advising. Supervisor Kilbourne visits each of the stores within his super- visory area on a regular basis at least once a week. Like other area supervisors, he can make temporary transfers within his own area without prior clearance from the unit head, and can make effective recommendations as to permanent transfers. He can also effectively recommend the hiring and discharge of employees within his super- visory area. In addition, he can discharge employees for gross negli- gence or serious infractions of company rules. Kilbourne handles grievances and personnel problems of employees within his area, helps to schedule vacations for them, and fills vacancies during vacations and emergencies by transferring employees between stores within this area. The Employer presently has collective-bargaining relations with other labor organizations in units of the size requested by the Petition- ers. For example, its 108 stores in the Boston, Massachusetts, unit are divided into 6 units for bargaining purposes. The Board has held that the appropriate collective-bargaining unit in the retail grocery trade should embrace employees of all stores located within either an Employer's administrative division or a geo- graphical area.' Accordingly, we find that employees in the 15 stores in the Kilbourne supervisory area constitute an appropriate unit or units 2 Meat department employees include meatcutters, meat wrappers, and clerks. Meatcutters cut the meat into pieces suitable for sale. Meat wrappers clean and wrap the meat, and the clerks keep the meat counters supplied and in order. Many of the meatcutters are gradu- ates of meat-cutting schools, and it is the Employer's practice to hire ' Food Fair Stores, Inc, 114 NLRB 521. 2 Winn-Dixie Stores, Inc, 124 NLRB 908. THE GREAT ATLANTIC & PACIFIC TEA COMPANY 801 experienced meatcutters. Although there is, some exchange between meat department employees and grocery and produce clerks, none of the latter does any actual cutting of meat. = Upon- the entire record, including the request for separate repre- sentation of the meat department employees and the absence of any bargaining history, we find that separate units of employees in the meat departments and the remaining employees in the other depart- ments may be appropriate? However, the storeswide unit, including the meat department employees, which is also sought herein, would be appropriate also. Accordingly, we shall make no final unit deter- mination at this time, but shall first ascertain the desires of the em- ployees as expressed in the elections directed below. There remains the disputed unit placement of certain categories of individuals whom the Employer, contrary to the Petitioners, would exclude as supervisors, and of part-time employees. Assistant store managers: There are assistant store managers in only 3 of the 15 stores in the Kilbourne area. These individuals spend about one-third of their time directing other store employees on occa- sions when the store manager is ill, on vacation, or absent from the store for other reasons, and spend the remainder of their time doing the same work as other employees. The assistant store managers work a 40-hour week, punch a timeclock, receive overtime pay, and receive the same benefits as other employees. They have no authority to hire, discharge, or make effective recommendations affecting the status of employees. We find that the assistant store managers are not supervisors. Accordingly, we shall include them in the unit. Meat department heads: Seven of the stores within the unit sought by the Petitioners employ individuals classified as meat department heads. These individuals receive wages based on a 40-hour week, receive overtime pay, and are entitled to the same benefits as are the other employees. They have no authority to hire or discharge em- ployees or to make effective recommendations affecting the status of employees. The Employer's personnel director could not point to any supervisory functions exercised by the meat department heads. He admitted that he regarded them as supervisors only because of their title. He further admitted that their duties and authority are the same as those.of meat department heads in the Boston area who are included in the bargaining units of rank-and-file employees. We find that the meat department heads are not supervisors. We shall include them. Part-time employees: The Petitioners contend that all regular part- time employees should be included in the unit. The Employer would 3 Bruno's Food Store, Incorporated, 131 NLRB 1023. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD include only those regular part-time employees who work 20 or more 'hours a week. Regular part-time employees who work less than 20 hours a week receive the same benefits as those who work more than 20 hours a week except for a paid vacation. All part-time employees perform the same work as other employees. The Board has consist- ently held that all regular part-time employees should be included in the appropriate unit regardless of the fact that they work less than 20 hours a week .4 Therefore, we shall include all the regular part- time employees in the appropriate unit or units. Accordingly, we shall direct separate elections in the following vot- ing groups in the Employer's retail food operations in Gray, West- brook, Portland (five stores), South Portland, Saco, Biddeford, Ken- nebunk, Sanford, North Berwick, South Berwick, and Springvale, Maine, excluding from each group all other employees, guards, and supervisors as defined in the Act 5 Group 1: All full-time and regular part-time meat department em- ployees, including meat department heads. Group 2: All other full-time and regular part-time store employees, including assistant store managers. We shall place the names of the Meat Cutters and Retail Clerks on the ballot in the election among the employees in group 1, and the name of the Retail Clerks on the ballot in group 2. If the majority of employees voting in group 1 select the Meat Cut- ters, they will be taken to have indicated their desire to constitute a separate unit, and the Regional Director conducting the elections directed herein is hereby instructed to issue a certification of repre- sentatives to the Meat Cutters for such unit, which the Board, in such circumstances, finds appropriate for the purposes of collective bar- gaining. However, if a majority of the employees in group 1 do not vote for the Meat Cutters, these employees will appropriately be in- cluded with the employees in group 2, and their votes will be pooled with those in group 2.1 The Regional Director is instructed to issue a certification of representatives to the Retail Clerks if it is selected by the majority of the employees in group 2 or in the pooled group, as the case may be, which the Board, in such circumstances, finds to be a unit appropriate for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] 4 The Great Atlantic and Pacific Tea Company, 128 NLRB 342 e The parties stipulated that store managers are supervisors, that head clerks are not supervisors, and that summer seasonal employees should be excluded. 6If the votes are pooled, they are to be tallied in the following manner: The votes for the labor organization seeking a separate unit in group 1 shall be counted as valid votes, but neither for nor against the labor organization seeking to represent all em- ployees in a 15-store unit. All other. votes are to be accorded their face value, whether for representation by the union seeking the more comprehensive group or for no union.