Meijer Supermarkets, Inc.

MEIJER SUPERMARKETS, INC. 513 Meijer Supermarkets, Inc. and Retail Store Employees Union, Local 20, Retail Clerks International Association, AFL-CIO, Petitioner Meijer Supermarkets, Inc.' and Retail Store Employees Union, Local 20, Retail Clerks International Association, AFL-CIO, Petitioner. Cases Nos. 7-RC-5333 and 7-RC-5368. May 9, 1963 DECISION AND DIRECTION OF ELECTION Upon consolidated petitions 2 duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Iris H. Meyer, 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 these cases to a three- member panel [Members Leedom, Fanning, and Brown]. Upon the entire record in these cases the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations 3 claim to represent certain employees 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. I Employer's name appears as corrected herein. 2 Pursuant to order of the Regional Director of the Seventh Region, Cases Nos. 7-RC- 5333 and 7-RC-5368 were consolidated on August 29, 1962. 3 The Consolidated Independent Union, Local 951, affiliated with the National Inde- pendent Union Council, herein called the ICIU, intervened on the basis of its contract inter- est. Petitioner contends that the CIU is not a labor organization in view of (1) Its failure to comply with the reporting requirements of the Labor-Management Reporting and Dis- closure Act of 1959, and (2) its use of varying names tending to confuse its identity. However, the Board has held that a union's status as a labor organization is not affected by noncompliance with the Labor^Management Reporting and Disclosure Act of 1959, Alto Pla8tics Manufacturing Corporation, 136 NLRB 850; nor by misrepresenting its identity, William J. Burns, 138 NLRB 449. Moreover, as the evidence shows that the CIU admits employees to membership and exists for the purpose of dealing with an em- ployer concerning wages, hours, and terms and conditions of employment, and since this fully satisfies the statutory test, we find that the CIU is a labor organization within the meaning of the Act The amalgamated Meat Cutters and Butcher Workmen of North America, Local 539, AFL-CIO, intervened at the hearing on a showing of interest, but withdrew as a matter of record on November 1, 1962. The Retail and Department Store Employees, Amalgamated Clothing Workers of America, AFL-CIO, herein called the ACw, intervened on a showing of interest Although the Em- ployer, Petitioner, and CIU contend that the ACW is not a labor organization, the Board has found it to be a labor organization in one or more cases. See Spartan Department Stores, 140 NLRB 608. Taking official notice of our proceedings, we find the ACW to be a labor organization within the meaning of the Act. The ACW did not enter any stipula- tions, indicate its positions, or otherwise participate in the hearing. 142 NLRB No. 69. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Employer presently operates a chain of 17 retail stores, engaged in the sale of food and nonfood items, as well as warehouse facilities which service all stores. In May 1962, when the original petition in 7-RC-5333 was filed, the Employer had 16 retail outlets, all known as Meijer Supermarkets. At that time, Petitioner sought a single unit of the 16 supermarkets, a unit then coextensive with the Employer's entire chain operation. In June 1962 the Meijer's Supermarket on Kalamazoo Street in Grand Rapids, Michigan, was expanded and reopened under the name of Thrifty Acres. This store, originally consisting of 25,000 square feet, was expanded to 100,000 square feet, with two-thirds of its mer- chandising area allocated to the sale of nonfood items, and with its work force increased from some 50 to about 175 employees. On June 4, Petitioner filed its petition in 7-RC-5368 seeking a separate unit of the employees at this store. Thereafter, the Employer added two more Thrifty stores, one at Holland, Michigan, which like the Grand Rapids Thrifty was formerly a Meijer Supermarket; and the other an entirely new establishment at Muskegon, Michigan. On amended petitions,' Petitioner now seeks a unit of 14 Meijer Supermarkets and the warehouse, and a second unit of the employees at the Grand Rapids Thrifty; the Thrifty stores at Holland and Muskegon are excluded from the units requested by Petitioner. The Petitioner, relying upon differences between the Thrifty and Meijer operations, asserts that the former represents an entirely new venture, requiring a separate election at the Grand Rapids Thrifty. However, in the alternative, Petitioner has expressed a willingness to participate in an election in any unit or units found appropriate by the Board. The Employer and the CIU, relying on bargaining history and other factors, contend that an overall unit of the 17 retail outlets and the warehouse, including employees at the Thrifty stores, is the only appropriate unit. Since 1951, the Employer has recognized the CIU as the exclusive bargaining agent of its employees in a multistore, chainwide unit. At that time, the Employer's operations were limited to five retail stores. As the Employer opened additional stores, the new employees were considered automatically covered by existing bargaining agree- 4 As a result of a corporate reorganization , through which Thrifty Acres, Inc., the Employer named in Case No. 7-RC-5368, was merged into the parent corporation , Meijer Supermarkets , Inc. ; and subsequent operational changes consisting of the conversion of the Holland supermarket into a Thrifty Acres store and the addition of a new Thrifty at Muskegon ; the Petitioner moved at the hearing to amend its petitions so as to exclude the Grand Rapids, Holland, and Muskegon Thrifties from the unit sought in Case No 7-RC- 5333, and to confine the petition in Case No 7-RC-5368 to the Grand Rapids Thrifty store The Employer and CIU opposed the motions and in turn moved to dismiss the petitions. The Regional Director referred them to the Board for decision. In view of the fact that the events which are the basis for the motions to amend occurred subsequent to the filing of the original petitions herein, and in further view of the fact that the issues have been fully litigated , we find that the motions to amend are proper. Accordingly , we grant such motions to amend and deny the Employer's and CIII's motion to dismiss the petitions herein MEIJER SUPERMARKETS, INC. 515 ments with the CIU. When the instant petitions were filed, the sub- sisting agreement between the Employer and CIU was not scheduled to expire until August 5, 1963 .1 That contract, through its recognition clause, applies to all employees of the Employer and its subsidiaries, subject to certain exclusions not here material. The Meijer and Thrifty stores are operated under different names and trade symbols and have separate locations but within the same general geographic areas. The Thrifty stores use twice the display area for the sale of nonfood items than is used for food, while at the supermarkets, the food area doubles that allocated to the display of nonfood items. While nonfood items are available at all stores, the nonfood lines at the Thrifty stores are more extensive and diverse. The Thrifty stores use different types of bags, payroll checks, applica- tion forms, and employee identification badges. Manpower require- ments at the Thrifty stores now exceed those at the Meijer locations. The Employer and the CIU, before the opening of the Grand Rapids Thrifty, negotiated a new wage schedule for certain employees in the nonfood area at the Thrifty stores which, in some classifications, re- flected a lower starting rate than is received by nonfood workers at the supermarkets. However, it appears that the wage differentials reflected the lighter work and more limited responsibilities required of employees in the new Thrifty classifications. Despite these differences, the evidence establishes that operations at all of the Employer's stores are controlled through a central office which plans, coordinates, and directs management policies relative to merchandising practices, pricing, personnel administration, pur- chasing, and inventory control. The central office also has sole author- ity to determine the basic layout of the store, the type and variety of the merchandise carried, overall staffing, hours of operation, and major promotional and advertising activities. All stores are serviced by central warehouse and bookkeeping facilities. Intermediate supervi- sion is effected through an operations director and district manager, whose responsibilities are defined by division of the stores into two supervisory districts, each containing both Meijer and Thrifty stores. The operations director and district manager work out of the central office and attempt to visit each store in their respective districts at least once every 2 weeks. The store managers have immediate re- sponsibility for the execution of directives handed down by the central office. Moreover, there are other important features common to both Thrifty and Meijer stores. The record shows that: There is no dif- ference in the authority of the store managers at Thrifty and Meijer 5 The Employer and CIU, at the hearing, waived their initial assertion that the presently subsisting contract was a bar to the instant proceeding. 712-548-64-vol. 142-34 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD locations ; gross revenues from the sale of food items exceed those from nonfood lines at each of the Employer 's stores; merchandise available at all stores is jointly advertised ; that all stores are of the self-service, discount variety ; the Employer's private labels are carried in all stores ; and both merchandise and personnel are interchanged between Meijer and Thrifty stores. With the exception of the nonfood classifications covered by the supplement agreement , all employees derive their hourly rates from the basic bargaining agreement. In addition, all employees are cov- ered by a common grievance system, and enjoy all other contractual nonwage benefits. The basic agreement also provides for the exercise of departmental seniority on a companywide basis without differentiat- ing between Thrifty and Meijer stores . Despite the different work re- sponsibilities of certain nonfood employees at the Thrifty stores, the overall skill and experience required of employees at these stores is substantially similar to that possessed by their counterparts at the Meijer Supermarkets. On the basis of the foregoing, we are of the opinion that the Em- ployer's Thrifty Acres operations represent no more than a normal business expansion of existing facilities sand not the establishment of an entirely new operation. Accordingly, and in view of the bargain- ing history, community of employment interests throughout the chain, high level of centralized management and control , minimal store autonomy, geographic integration, employee interchange, and the absence of any indication that the organizational interests of em- ployees would be impaired if a chainwide unit were found appropriate; we find a unit consisting of employees at all 17 stores and the ware- house to beappropriate herein.6 We find that the following employees of the Employer constitute a unit appropriate for collective bargaining within the meaning of Sec- tion 9 (b) of the Act. All full-time and regular part-time employees employed at the Em- ployer's 17 retail establishments and warehouse located in Grand Rapids, Michigan , and environs, incuding all full-time and regular part-time employees at the Employer's Thrifty Acres stores, but ex- cluding employees working in the bank , shoe repair, barber shop, beauty shop, major appliances, credit, and bakery departments,' of- 9 Cf. The Great Atlantic and Pacific Tea Company, 140 NLRB 1011. Contrary to the Petitioner's contention , the facts in the instant case are distinguishable from those in Sav-On Drugs, Inc, 138 NLRB 1032. There the Board found a single -store unit appropri- ate in a chain operation on a record indicating no bargaining history , limited interchange, geographic separation, management autonomy in the individual store, and no claim for representation on a broader basis. See also Frostco Super Save Stores, Inc , 138 NLRB 125, where a self-determination election was allowed as to a single licensed department on evidence showing separate ownership and physical separation of the licensed depart- ment involved 7 The parties stipulated that employees of the named licensed departments are not em- ployees of the Employer and should be excluded from the unit found appropriate. LUMMUS COMPANY 517 fice clerical employees, store managers, assistant store managers, de- partment managers,e and all other supervisors as defined in the Act. [Text of Direction of Election 9 omitted from publication.]' 8 Petitioner contends that the department managers are not supervisors and should be included in the appropriate unit, while the Employer and the CIU take the contrary posi- tion . The record establishes that department managers direct the work in their respective departments , have authority effectively to recommend discharge and discipline , and repre- sent the Employer at the first step in the contractual grievance procedures . We find that they are supervisors and should be excluded from the appropriate unit. However, the record suggests, though unclear on this point, that there may be departments , not identified in the record, in which the department manager is the only employee employed or who exercises supervisory authority only irregularly and sporadically. In accordance with established policy the Board will not exclude persons as supervisors who do not at present exercise supervisory authority or do so only on an irregular or sporadic basis. Huntley Industrial Minerals, Inc., 131 NLRB 1227, 1228. Accordingly, department managers work- ing under the aforesaid conditions are not supervisors as defined in the Act and are in- cluded in the unit. 8 As the unit found appropriate is larger than that initially requested by Petitioner, Petitioner's interest in the chainwide unit is unclear . Accordingly, the Regional Director is instructed not to proceed with the election hereinafter directed until he shall have first determined that the Petitioner has an adequate showing of interest in the unit herein found appropriate. The CIU does not wish to participate in an election if Petitioner's showing is found inadequate. Lummus Company and James J. Kivlin Local 80, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and James J. Kivlin. Cases Nos. 4-CA- 2361 and 4-CB-717. May 10, 1963 DECISION AND ORDER On May 11, 1962, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that Local 80, United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Respondent Local 80, 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 attached Intermediate Report. He also found that Lummus Company, herein called Respondent Lummus, did not en- gage in the unfair labor practices alleged nand recommended that the complaint be dismissed in its entirety as to this Respondent. There- after, the General Counsel, the Charging Party, and Respondent Local 80 filed exceptions to the Intermediate Report and supporting briefs. Respondent Lummus filed a brief 1 in reply to the exceptions and briefs of the General Counsel and the Charging Party. 1 Respondent Lummus' request for oral argument is hereby denied , as the record, excep- tions, and briefs adequately present the issues and the positions of the parties. 142 NLRB No. 59.