Malone & Hyde, Inc.

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U-Tote-Em Grocery Co., division of Malone & Hyde, Inc. and Retail Clerks Union , Local 1529, char- tered by Retail Clerks International Association, AFL-CIO, Petitioner and Amalgamated Meat Cut- ters & Butcher Workmen of North America, AFL-CIO, District Union 452, Petitioner. Cases 26-RC-3634 and 26-RC-3655 August 21, 1970 DECISION ON REVIEW BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On January 5, 1970, the Regional Director for Region 26 issued a Decision and Direction of Elections in the above-entitled proceeding in which he found inappropriate the Petitioners" requested units of gro- cery and produce department employees and of meat department employees, respectively, employed by the Employer at three of its retail food stores in or near Jackson, Tennessee, and he found alone appropriate Employerwide units of these employees encompassing all 11 of the Employer's food stores in western Tennessee. Thereafter, pursuant to National Labor Relations Board Rules and Regulations, the Retail Clerks filed a timely request for review of the Regional Director's Decision, contending that, by including in its requested unit employees at stores outside the Jackson metropolitan area, he departed from officially reported Board precedent. The Employ- er filed opposition to the request for review. By telegraphic order dated January 29, 1970, the National Labor Relations Board granted the request for review. Thereafter, the Employer filed a timely brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. The Board has considered the entire record in this case, including the Employer's brief on review, and makes the following findings: As indicated above, the Employer operates a chain of 11 retail food stores in the western part of Tennes- see. The central office for these stores is located in Jackson, Tennessee, the largest city in the area served by the Employer. The Employer's warehouse, located in the same building as the central office, services all 11 stores. In Jackson, the Employer has ' The Petitioners are referred to herein as the Retail Clerks and the Meat Cutters two retail stores situated in shopping centers, one being about a mile from the central office and the other about 2 miles away. In Bemis, which is a suburb of Jackson, 4 to 5 miles distance from the central office, there is a third retail store. The remain- ing 8 stores of the chain are located in small towns within a 74-mile radius of Jackson, the nearest being 24 miles away.' The Retail Clerks, in its request for review, urges that the three stores in Jackson and Bemis constitute a metropolitan area grouping of stores in the Employer's chain and that, therefore, its requested unit is appropriate. We agree. As is common in retail chain operations, and partic- ularly in food chains, there is a high degree of central- ized administration in the functioning of all of the Employer's groceries. Thus, the merchandise is the same in all stores except for a few items; the price structure is identical; and the layout of all stores is, insofar as possible, the same. In addition to buying and distributing the merchandise, the central office determines whether there will be sales or other kinds of special promotions and give-aways. All newspaper advertisements to promote business are prepared by the central office, with with an identical ad placed every week in 12 or 13 newspapers circulated in the Employer's trade area. Also handled by the central office is the purchase of equipment and parts for stores, and all store operating bills (for example, utility and telephone) are sent from each store to Jackson for payment. Although financial records are kept for the 11 stores at the central office, each store is treated as a distinct unit with a separate financial statement and obligation to stand on its own in terms of profit and loss.' Individual stores maintain local bank accounts with deposits transferred to a central Jackson bank on a weekly basis. Also, once a week, payroll cards, filled out at the store level for each employee, are sent to the central office. Paychecks are prepared there and sent to the manager of each store who distributes them to store employees. All forms used in making financial and payroll reports, and for all other personnel matters, are uniform and distributed by the central office. Permanent and part-time hiring is usually initiated at the store level with the filling out of an employment application. Applicants sometimes appear at the cen- tral office for this purpose, and they are then sent to a particular grocery. Store managers have authority = The towns (with their distances from the the central office indicated) are: (1) Brownsville (24 miles), (2) Alamo (24 miles), (3) Lexington (27 miles), (4) Huntingdon (35 miles), (5) Parsons (43 miles), (6) Dyersburg (55 miles), (7) Savannan (64 miles), (8) Waverly (74 miles) ' An employee profit-sharing plan is computed as a percentage of the profits attributed to the particular store where the employee works 185 NLRB No. 6 U-TOTE-EM GROCERY CO to hire part-time employees on the spot, and they may put a full-time applicant to work immediately. However, in all cases, the central office must be notified for final approval. While this approval is essentially perfunctory as to part-time hiring, a full- time applicant will not be finally approved until he is interviewed by the general supervisor of store opera- tions.' While the general supervisor may refuse to approve a hiring, this rarely occurs.' Store managers also make recommendations to the central office regarding individual wage increases,' promotions, and terminations. As in the case of hiring, store-level recommendations on these matters are usually fol- lowed.' With respect to other working conditions and bene- fits, there is a 6-day maximum workweek for all stores, but the hours each store is open vary in order to meet local competition. Holidays are identical, however, and the Employer maintains uniformity in its vacation plan, stock purchase plan, and hospitiliza- tion plan. A standard uniform is also worn by employ- ees at the 11 groceries. The total employee complement of the chain is approximately 170, of which 145-150 are grocery and produce employees. Of the total complement, it is estimated that between 50 and 60 percent are part-time employees.' The three-store unit requested by the Retail Clerks employs about 60 grocery and produce employees. In these stores are approximately 10 meat department employees. Most of the Employ- er's employees live in the vicinity of the store where they work. The Employer stated that the majority of its employees have been transferred from one store The general supervisor of store operations works out of the central office in Jackson He supervises all 11 retail stores and, in addition to maintaining telephone communications with store supervisory personnel, he visits every store at least once a week to help coordinate operations among all the stores and to deal with individual emergency situations such as refngeration breakdowns, cash shortages, store break-ins, or acci- dents ' The record indicated that 99 percent of the time the general supervisor approves a store manager's hiring of a part-time employee and that "in most cases" the general supervisor also accepts the store manager's recommendation as to a full-time applicant All stores apply a uniform starting rate which is varied (for example, when an applicant has prior experience) only with central office approval There is no set wage scale in terms of an upper limit , and almost 100 percent of the time any employee's wage increase is the result of a store manager's recommendation The Employer initially stated that personnel records for all employees were kept at the Jackson office However, later testimony at the hearing revealed that only a few days before the general supervisor distributed employment applications at all stores to be filled out by every employee He admitted that, until this action, the central office did not have an application record for all of its employees and that such a record had only been kept at the store level The Employer considers a person working at least 40 hours per week a full-time employee and, as a part-time employee, one working a regularly scheduled 15 to 25 hours per week Part-time employees are also differentiated in that they do not participate in all of the benefits available to full-time employees. 53 to another at some time during their employment.' The record indicates that, as to the three-store unit primarily sought, at least 11 employees transferred there from the 8 other stores (16 percent); and about 37 employees transferred from these 3 stores to other stores (37 percent). Employees are temporarily inter- changed between stores in emergencies, such as new store openings, special sales at particular stores, absen- teeism, illness, or vacations. Although the Employer stated that interchange occurs "often, sometimes week- ly," no statistics were provided to enable us to deter- mine the rate of interchange affecting the requested stores over a given period of time. Overall, the Employer attempts to maintain uni- formity in certain aspects of its business operation in several ways. In addition to personal communica- tion and visits by the central office' s general supervisor of store operations to each store, a daily bulletin is circulated to all stores containing such information as price changes, sales plans in connection with current advertisements, and reminders of particular company policies. There is also a store manager's guide, uni- formly distributed, that outlines various procedures for, among other things, handling money and check cashing, handling and displaying products, and train- ing employees. However, store managers or their assistants are allowed complete discretion as to how such rules and regulations are carried out; they exer- cise independent judgment in such matters as instruct- ing employees on ways to do their job and on develop- ing methods of stocking the store. The Employer admitted that no two store managers "do their work exactly alike." Generally, store managers are responsi- ble for assigning and directing employees' work, assigning overtime, routine discipline of employees, and sending sick or injured employees home or to the doctor. They also have complete control over the store building itself, the safe, money, and bank deposits. They keep the store's financial records, in addition to making up the payroll and distributing checks when received from the central office. Store managers also communicate with each other daily about business problems which often include the trans- fer of goods between individual stores. Although the foregoing description of the nature of the Employer's retail grocery operations clearly establishes that a chainwide unit of its employees would be appropriate, there are factors present which support a finding that a unit limited in scope to the three stores in and near Jackson is also ' Transfers are made primarily for promotion purposes Transfers are effected both by employee request and by employer requirements Howev- er, a transfer of an employee to a store outside a 5-mile radius from where he works is made only by mutual agreement. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate.10 Where there is no bargaining history on a broader basis, the Board has frequently found appropriate a geographic grouping of retail chain stores delimited by the bounds of a metropolitan area." Here, two of the stores encompassed by the requested unit are in the city of Jackson and the third is in Bemis, a near-by suburb of Jackson. The next closest store is 24 miles from Jackson. Although, as above indicated, there have been permanent trans- fers of employees in and out of the requested grouping of stores, it appears from the record that temporary interchange of employees among all the stores occurs only in emergency situations, such as the opening of a new store in the chain, at special sales affecting business volume at some stores more than others, and in case of illness or other unscheduled absences. Where, as herein, interchange of this nature is not shown to be significant, it does not, in our opinion, militate against the establishment of a metropolitan area unit. Further, despite the integration of operations of the entire chain and the overall supervision of the chain provided by the office, each store is operated as a separate economic unit, the manager of each store retains substantial autonomy in supervising the day-to-day operations of his store within the limits of policies set by the central office, and the store manager is involved in hiring and in making recom- mendations as to individual wage increases , promo- tions, and terminations. 12 In the circumstances of this case, we find, contrary to the Regional Director, that the employees employed at the three stores in the metropolitan area of Jackson have a separate and distinct community of interest apart from the broader one they share with employees at other stores in the chain and that they constitute an appropriate unit for purposes of collective bargain- ing." Accordingly, we hereby remand the case to the Regional Director in order that he may conduct an election pursuant to his Decision and Direction of Elections, as modified herein, except that the eligi- bility payroll period therefor shall be that immediately preceding the date below.14 10 The Board's recognition that more than one unit may be appropriate among the employees of a particular enterprise and the policy of nonethe- less limiting its consideration in that situation to whether the unit sought is appropriate has been stated a number of times, with the approval of the courts See Motts Shop Rite of Springfield, Inc, and Marts Shop Rite of Chicopee, Inc, 182 NLRB No 19, and cases cited therein at fn 3 " See, eg, Drug Fair-Community Drug Co, Inc, 180 NLRB No 94, and cases therein cited " Cf. Shop's Save Co, Inc., 174 NLRB No 156 See Haag Drug Company, 169 NLRB No 111, Marts Shop Rite, supra, fn 10 " 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, NL R B v Wyman-Gordon Company, 394, U S 759 Accordingly, it is hereby directed that a corrected 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 26 within 7 days of the date of this Decision on Review 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