Motts Supermarkets, Inc.

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Motts Shop Rite of Springfield , Inc. and Motts Shop Rite of Chicopee , Inc., subsidiaries of Motts Supermar- kets, Inc.' and Retail Employees ' Union , Local 1459, Retail Clerks International Association , AFL-CIO, Peti- tioner . Case 1-RC- 10432 r April 27, 1970 DECISION ON REVIEW AND DIRECTION OF ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 18, 1969 , the Regional Director for Region I issued a Decision and Order. in the above-entitled proceeding , in which he dismissed the petition , finding inappropriate the requested unit of employees at the Employer's two retail food stores located in Springfield and Chicopee , Massachusetts. Thereafter , pursuant to National Labor Relations Board Rules and Regulations, and Statements of Procedure, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director' s Decision , contending that in making his unit finding , he departed , from Board precedent. The Petitioner' s parent organization , herein called the Retail Clerks , was permitted to file a supplemental memo- randum in support of the request for review. The Employer filed opposition to the request for review.2 By telegraphic order dated November 10, 1969, the National Labor Relations Board granted the request for review . Thereafter the parties filed timely briefs on review. ' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Board has delegated its powers in connection with this case to a three-member panel. The Board has considered the entire record in this case, including the briefs of the parties , and makes the following findings: As above indicated, the Petitioner seeks to represent a unit ' of all employees at Motts' two food stores in Springfield and Chicopee , Massachusetts . The Intervet nor, Local 33, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is in accord with the request, but Motts contends that the only appropriate unit herein is chainwide , encompassing its 12 stores in Connecticut and Massachusetts . The Region- al Director concluded that the record demonstrates no more autonomy in the operations of the two requested stores considered together than exists for Motts' Meri- den, Connecticut , store involved in Mott 's Shop-Rite of Meriden, Inc., 174 NLRB No. 157, where the Board held to be inappropriate a requested single -store meat department unit at Motts ' Meriden store . The Petitioner, with the support of the Retail Clerks , disputes this The Employer's parent company is referred to herein as Motts ' The opposition contains a motion to strike certain of the Petitioner's exhibits As we do not rely on the contents of such exhibits in disposing of the issues on review, we need not and do not rule on the motion conclusion, arguing that, under the record 'facts, the requested unit is appropriate. We agree, for the following reasons: Under the facts found by the Board in the aforemen- tioned Meriden case, it is clear that a chainwide unit would be appropriate. However, as no labor organization is currently seeking to represent that unit, the only issue raised here is whether the requested unit of the employees of Motts' two stores in Springfield and Chico- pee is not also an appropriate unit.3 Motts' Springfield and Chicopee stores together employ about 190 employees, all but 6 of whom reside in Massachusetts. These two stores are 71/1 miles apart, are the only stores of the chain located in Massachusetts, and fall within the Greater Springfield Metropolitan area.4 The other 10 stores are located in Connecticut, the nearest of which is about 28 miles from the Massachu- setts stores. As the Board found in the Meriden case, the operations of Motts' chain of retail food stores are highly integrated, under the control of central office management at East Hartford. However, the record shows that store manag- ers at the Springfield and Chicopee stores have full authority to hire and discharge part-time employees; who comprise about 60 percent of the store complements. As to full-time employees; the store managers screen out applicants who are obviously unqualified and, when the district supervisor is not present, they interview qualified applicants and may hire them, subject to the approval of the central office. Likewise; the store manag- ers recommend employees for management training and recommend periodic merit increases; they may delay the granting of increases for periods up to 30 days. As the Board has stated in a number of cases, with the approval of the courts, more than one unit may be appropriate among the employees of a particular enterprise Drug Fair-Community Drug Co , Inc , 180 NLRB No 94, and cases therein cited, Haag Drug Company, Incorporated, 169 NLRB 877, State Farm Mutual Automobile Insurance Company v N L R B, 411 F 2d 356 (C A 7), cert denied 396 U S 832, enfg 163 NLRB 677, NLRB v The Western and Southern Life Insurance Company, 391 F 2d 119 (C A 3), cert denied 393 US 978, affg 163 NLRB 138, Banco Credito y Ahoro Ponceno v NLRB, 390 F 2d 110 (C A 1), cert denied 393 U S 932, enfg 167 NLRB 397 Indeed; although one of the alternative units in which employees may be represented may be viewed as more effective than others for promotion of a stable bargaining relationship, the Board generally does not attempt to resolve that question but requires only that the unit a labor organization seeks be an appropriate one The issue of the appropriate unit is therefore necessarily framed by the requests of labor organizations and is resolved by consideration of all relevant facts in the record ,' including the extent to which the employees have been organized for bargaining purposes Section 9(c)(5) of the Act prohibits reliance on extent of organization as the controlling factor in unit determinations However, where relevant, it is entitled to some weight. 4 They are also within the Springfield-Chicopee-Holyoke Standard Metropolitan Statistical Area, as defined in Standard Metropolitan Statis- tical Areas, 1967 edition, prepared by the Office of Statistical Standards, Bureau of the Budget, which area is utilized by the Wage and Hour Division of the United States Department of Labor in making its wage surveys ' It is not shown which of two distract supervisors is over the two Massachusetts stores Nor is it indicated how often the district supervisor visits these two stores However, the record reveals that most applicants for employment at the two Massachusetts stores are interviewed at the stores and not at the central office 182 NLRB No. 19 MOTTS SHOP RITE OF SPRINGFIELD They may also suspend full-time employees for periods not exceeding 24 hours. As to employee interchange affecting the requested stores, in 1968, the first full year of operations for the Massachusetts stores, there were 14 permanent trans- fers from one to the other and there were 9 between either of them and the Connecticut stores in the chain. The more critical figures for temporary transfers show 95 instances of interchange affecting the two Massachu- setts stores, involving 61 employees and 217 man 'days of work. However, 36 of the 95 instances were between the two requested stores. The remaining 59 instances (involving 30 employees and 151 man days) were between one, of the two Massachusetts stores and one of the other stores in the chain. This degree of interchange may be compared with the 1967 figures for the Meriden store, where there were 173 instances affecting a comple ment of 75 employees.' Although the operations of all the stores in the chain are integrated and labor relations policy is centrally determined, there are other factors distinguishing the Massachusetts stores. Some modifications in policy must be made for the two Greater Springfield stores because of their location in another State. Thus, there must be compliance with a different set of labor laws on the statute books of the Commonwealth of Massachu- setts. The record indicates specifically that employees working at the Massachusetts stores have two paid holidays not enjoyed by employees at the Connecticut stores.7 The two Massachusetts stores do local advertis- ing in newspapers with a circulation in the Greater Springfield area and the Connecticut stores are not listed in such advertisements. The above factors, in our opinion, substantially sup- port the requested unit. We note especially that the ' Thus, the rate of interchange, expressed as the average number of instances per week divided by the employee complement at the store, for Meriden was 4 4 percent and for the two Massachusetts combined was 0.6 percent. Although we find it unnecessary to rely upon it to support our decision herein, and with due deference to what appears to be a contrary view expressed in Local 1325, Retail Clerks v N L R B , 414 F 2d '1194 (C A D C ), we believe that the power of a State to regulate labor relations for enterprises doing business within its borders and the existence of a separate and distinct statutory framework, albeit the substantive differences between the laws of the several States involved may at a given time be minor, are factors entitled to some weight in determining whether a grouping of employees at all retail outlets of an enterprise within a State may be an appropriate unit 173 two Massachusetts stores are located in the Greater Springfield Metropolitan area which is a distinct labor market for employment at these stores. Also, we view the interchange of employees between either of these two stores and other stores in the chain as minimal when it is compared with that found to affect the request- ed employees in the Meriden case. Moreover, the greater degree of interchange of employees between the two Greater Springfield stores lends added support to their linkage for bargaining purposes. Finally, we give some weight to the facts that there is no history of collective bargaining for any of Motts' employees and that no labor organization is seeking to represent its employees on the basis of a broader unit than that requested by the Petitioner. On these facts we conclude that the employees in both these two stores have a substantial community of interest, and one which is sufficiently distinct to warrant their representation together in a single-bargain- ing unit, apart from the employees in the Motts' stores in Connecticut. Accordingly, we find that a question affecting com- merce exists concerning the representation of certain employees of the Employer within the meaning of Sec- tions 9(c)(1) and 2(6) and (7) of the Act, and that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed at the Employer's Springfield and Chicopee, Massachusetts, stores, excluding professional employ- ees, watchmen, guards and supervisors as defined in the Act. [Direction of Elections omitted from publication.] e In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc , 156 NLRB 1236, N L.R B v Wyman- Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region I within 7 days of the date of this Decision on Review and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed