Chelmsford Food Discounters, Inc.

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent that such right may be affected by a lawful agreement requiring mem- bership in a labor organization as a condition of employment , as authorized in Section 8(a) (3) of the Act, as amended. WE WILL notify Piper & Greenhall, Inc., that we withdraw our objections to the employment of Dudley R. Rankin. PLASTERERS' UNION LOCAL No. 77 OPERATIVE PLASTERERS' AND CE- MENT MASONS' INTERNATIONAL ASSOCIATION, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional office, 327 Logan Building, Fifth and Union Streets, Seattle, Washington , 98101 , Telephone No. Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Chelmsford Food Discounters, Inc.' and Amalgamated Meat Cutters, Butchers, Food Store, Seafood, Allied Workers of N.A., District Union Local 2, AFL-CIO, Petitioner. Case No. 1-RC-7317. July 23, 1963 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 Arnold M. Marrow, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 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 Fanning]. Upon the entire record in this case the Board finds : 1. At the hearing, the petition, which originally named Enter- prise Department Stores, Inc., d/b/a J. M. Fields Discount Stores, and Chelmsford Food Discounters, Inc., as the Employers, was amended at the Petitioner's request to name only Chelmsford Food Discounters, Inc., as the Employer. Only Chelmsford Food Dis- counters, Inc., herein called Chelmsford, appeared at and participated in the hearing. However, the Intervenor contends that F. F. Fields of Chelmsford, Inc., or F. F.-J. M. Fields, herein called Fields, is a joint employer of Chelmsford's employees, and that the requested unit, limited to employees of Chelmsford, is inappropriate. 1 As amended at the hearing 2 Local 372, Retail Clerks International Association , AFL-CIO, was allowed to inter- vene at the hearing for the purpose of contesting the appropriateness of the requested unit of food department employees. 143 NLRB No. 77. CHELMSFORD FOOD DISCOUNTERS, INC. 781 Fields operates a discount department store at Chelmsford, Mas- sachusetts, which utilizes an area of about 145,000 square feet for the retail sale of food and general merchandise to the public. Chelmsford uses about 30,000 square feet of this area for the food department, which it operates under a license agreement with Fields. Under the terms of the license agreement, Fields retains the keys to its building, controls all advertising, and has authority to establish the accounting procedures used by Chelmsford. Fields also approves all fixtures, and has certain limited authority with respect to other aspects of Chelmsford's business operations. On the other hand, the food department operated by Chelmsford is completely separated from the store's other principal department, the general merchandise department, by a high display counter, which runs the entire length of the store. The food and general merchandise departments of the store have separate entrances and checkout stands, through which customers necessarily enter and leave the respective departments. Chelmsford supervises the operation of the food de- partment, hires and pays its own sales and supervisory personnel, fixes their wages, and directs their work. In view of the foregoing, particularly Chelmsford's control over the hiring, wages, and work of these employees, it is clear and we find that Chelmsford is an employer of the food department employees. Moreover, as indicated below, we find that the unit requested by the Petitioner, limited to employees of Chelmsford, is an appropriate unit. It appears that the Intervenor, while contending that Fields is a joint employer of these employees, primarily seeks to contest the ap- propriateness of a unit limited to Chelmsford's employees. However, the Intervenor does not at this time seek an election in any larger unit. In these circumstances, and since we, in any event, find the unit requested to be appropriate, we do not deem it necessary to pass on the question whether Fields is a joint employer of these employees. We find that the Employer, Chelmsford Food Discounters, Inc., is engaged in commerce within the meaning of the Act. 2. The labor organizations named above claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of employees in the food department of Fields' Chelmsford store. The Intervenor, as heretofore noted, contends that the requested unit is not an appropriate one for collective-bargaining purposes. There is no history of collective bargaining. Chelmsford employs about 60 employees, who are assigned to vari- ous sections within the food department, such as dairy, delicatessen, 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grocery, produce, meat, and check-out. The food department manager exercises direct control over these employees, through section man- agers who supervise employees in these sections. As noted above, the entire food department of Fields' store is separately partitioned from the general merchandise department by high display shelves and the department has its own separate entrances and checkout stands. Chelmsford stocks and prices all of its own merchandise. Its em- ployees punch timeclocks located in the food department. In view of all the evidence that Chelmsford operates a separate and distinct food department in Fields' discount store and is an em- ployer of the employees in that department, the lack of any con- trolling bargaining history, and the fact that the Intervenor does not now seek an election in any other unit, we find that the following employees constitute a separate appropriate unit for collective- bargaining purposes : 3 All regular full-time and part-time employees employed by Chelms- ford Food Discounters, Inc., in the food department of the Chelms- ford, Massachusetts, store of F. F. Fields of Chelmsford, Inc., but excluding office clerical employees, professional employees, guards,, and department managers, and all other supervisors 4 as defined in the Act. [Text of Direction of Election omitted from publication.] 3 United Stores of America, 138 NLRB 383; Frostco Super Save Stores, Inc., 138 NLRB 125. See also Duane's Miami Corporation, 119 NLRB 1331 ; The Sperry and Hutchinson, Company, 117 NLRB 1762. 4The question was contested as to whether two employees ( Strock and Testa ), assigned, to supervise sections within the food department , were supervisors. As these employees responsibly direct the employees in their respective sections , we find that they are super= visors within the meaning of the Act, and exclude them from the unit found appropriate herein. Frankel is included in the unit in accordance with the parties ' agreement. Inter-Mountain Dairymen, Inc.' and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer - ica, Milk Drivers and Dairy Employees Local Union No. 537,. Petitioner. Case No. 27-RC-2358. July 23, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, hearings were held before hearing officers F. T. Frisbey and W. Bruce Gillis, Jr.' The hearing officers' rulings 1 The Employer' s name appears as amended at the hearing. 2 The original hearing in this case was held on January 22 , 1963. The Board there- after remanded the proceeding for a further hearing, which was held on April 23, 1963. After receiving due notice thereof, the Employer participated fully in the hearing held on April 23, 1963, and all relevant issues of this case were heard at that time. 143 NLRB No. 87.