The Grand Union Co.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Grand Union Company and Food Handlers Union Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Petitioner. Case 1-RC-10184 May 28, 1969 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULIOCH AND MEMBERS FANNING AND BROWN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a he aring was held before Francis V. Paone, Hearing Officer. Following the hearing, this case was transferred to the National Labor Relations Board in Washington, D.C., pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedures, Series 8, as amended . Thereafter, the Employer, the Petitioner, and the Intervenor' filed briefs, which have been duly considered. 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 case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(l) and 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of employees at the Employer's Waterbury, Connecticut, store. The Employer contends that a unit limited to that store is inappropriate, and that the smallest appropriate unit is one encompassing all six stores- in its administrative division which includes the Waterbury store. The Intervenor takes no position as to the scope of the unit. The Grand Union Company, a Delaware corporation having its principal place of business in East Patterson, New Jersey, operates a large number of retail food stores in various States of the United States and in Puerto Rico. The Grand 'Local 919, Retail Clerks International Association, AFL-CIO, intervened in this proceeding on the basis of an adequate showing of interest. Union Company also maintains a division known as Grand Way which operates discount department stores. Grand Way Division is further divided into five area divisions (Empire, Central, Metropolitan, Suburban, and Florida), which control geographic areas identical to Grand Union's equivalent divisions bearing the same names. Grand Way Division of Grand Union is headed by Executive Vice President Silvers, who replaced George Darby in that job during the course of the hearing herein. Silvers is assisted by a staff of approximately 15 individuals with specific responsibilities over various aspects of Grand Way's operation for all Area Divisions. In addition there is an Area Supervisor for each of the five Area Divisions. The Metropolitan Area Division of Grand Way, herein involved, covers the State of Connecticut and the five New York State Counties of the Bronx, New York, Westchester, Dutchess, and Putnam. Located in the southwest portion of the State of Connecticut are the six stores of the Metropolitan Area Division which the Employer asserts as the smallest appropriate unit. The Waterbury store, sought herein by the Petitioner, is the most centrally located of these six stores. It is approximately 22 miles southwest of the store in New Britain, 15 miles southwest of the Bristol store, 29 miles northeast of the Danbury store, and about 30 miles north of the stores in Stratford and West Haven. Although the record reveals a certain overlap due to the smallness of the geographical area involved and perhaps to the density of the population in the region, it is clear that each store serves essentially a different and distinct economic area.2 The record indicates that there has been some history of collective bargaining which we do not deem controlling herein. The Petitioner currently represents certain employees of Grand Union's Metropolitan Area Division in a divisionwide unit, but this appears to have resulted from an agreement by the parties rather than from a unit determination.' Petitioner formerly represented a unit of employees of Grand Way's Metroplitan Area Division similar to that urged herein by the Employer, but again that unit was the result of an agreement by the parties and it was terminated when the Petitioner and the Intervenor lost consent elections in 1963 and 1964. The record further indicates that another local of the Petitioner currently represents a divisionwide unit of Grand Way employees in the Suburban Area Division. All of the above units were developed however, without need for Board determination of the issue of 'Standard Metropolitan Stattsttcal Area prepared by the office of Statistical Standards. Executive Office of the President , includes Stratford in the Bridgeport Standard Metropolitan statistical area, West Haven in the New Haven Metropolitan area, and New Britain and Waterbury as separate standard metropolitan statistical areas . Neither Danbury nor Bristol is included in the Waterbury (or any other described ) metropolitan areas. 176 NLRB No. 28 THE GRAND UNION CO. 231 geographic scope of the unit. The parties simply agreed, and the question of whether some other unit might also be appropriate was never raised. It has long been the Board's policy not to consider itself bound by a bargaining history resulting from a consent election in a unit stipulated by the parties rather than one determined by the Board.4 We note also that the above recounted bargaining history involves in part employees not involved herein, and that insofar as the unit urged by the Employer is concerned a significant hiatus exists between the prior bargaining and the present petition.` In addition, even if this bargaining history might indicate the possible appropriateness of a broader geographic unit, it would not preclude a finding that a unit limited to the Waterbury store might also be appropriate." Further, while also not controlling, we note that a different result was reached in a recent case involving these same parties which was concerned with the Metropolitan Area Division store in Danbury, Connecticut.' The Regional Director for Region 2 resoled the same conflicting contentions 'by finding appropriate a unit limited to the single Danbury store, and the Board by telegraphic Order dated November 4, 1966, denied the Employer's request for review of the Regional Director's determination.' The area supervisor for the Metropolitan Area Division, Davidson, has an office located in the Stratford, Connecticut, store. He is aided in his general function of overseeing the six divisional stores by personnel assigned to Grand Union's co-extensive Metropolitan Area Division, who visit the Grand Way stores while observing the Grand Union markets. Directly under Davidson are the general managers, or store managers of each individual store, who in turn are assisted by assistant general managers and by department managers. As is normal in this industry, there is a great deal of control exercised centrally over the Employer's operation.. In the instant case such control is variously exerted by Grand Union headquarters, Grand Way headquarters, or by Grand Way's Metropolitan Division. Thus, Grand Way officials with the aid of the Metropolitan Division area supervisor, establish uniform prices, select merchandise, choose sources of supply, develop advertising and display policies and content (including advertising for personnel), and decide the timing and content of special sales . The area supervisor determines inventory levels, while the 'it is noted that in the Metropolitan Area Division , three of the six Grand Way stores including Waterbury, are located under the same roof as a Grand Union Market. 'Mid West Abrasive Company, 145 NLRB 1665, 1667. 'See Macy's San Francisco , 120 NLRB 69. 'Haag Drug Company, Incorporated, 169 NLRB No. 111. 'Case 2-RC..14425, not printed in NLRB volumes. 'The Petitioner ultimately lost the resulting election. various forms utilized at the stores to implement such functions as purchasing, selling, and personnel matters are uniform throughout the Employer's operation and are provided either by Grand Union or Grand Way. There is also a substantial degree of acquisition of goods from a central warehouse in Mount Kisco, New York. Pay levels and fringe benefits are established by Grand Union and its Grand Way Division and are uniform throughout the Division, and seniority appears to be computed on a companywide basis. The Employer conducts periodic clinics and special meetings, each one concerning problems of a different department or section handling particular products, and these provide some contacts among the various stores' personnel. However, the record reveals an inconsequential degree of personnel interchange among the six Metropolitan Area Division stores.' During the 52-week period between August 15, 1967, and August 15, 1968, there were 17 permanent transfers among the six stores, of which four were either into or out of the Waterbury store. During the same 1-year period there were 123 temporary transfers among the six stores, of which 46 involved the Waterbury Store. In all instances these figures involve all personnel, including supervisors. Thus, there were fewer than 2.8 temporary transfers per week in the Division and fewer than l per week into or out of Waterbury, while there was only one permanent transfer every 3 weeks in the Division and only one permanent transfer every 13 weeks involving Waterbury. It is noted that the complement of employees at the Waterbury store is 43 and the number of employees in the Division is approximately 260.10 Central office personnel apparently visit the various stores regularly about once a week and communicate by telephone about once a day. Thus, during a 24-week period beginning on March 1, 1968 (when Davidson assumed the position of Area Supervisor), and ending in mid-August 1968. Davidson visited the six stores in his division 199 times or approximately eight times a week. Twenty-six of those visits were to the Waterbury store -- approximately one visit per week. During the same period, other Grand Way executives, not specifically assigned to the Metropolitan Area Division, visited the six stores 163 times and 19 of those visits were to the Waterbury store. In total, therefore, all six stores were visited by Davidson or by an executive from Grand Way headquarters 362 times or an average of 15 times per week for all stores or 2.5 times per week per store. The Waterbury store was visited a total of 45 times or slightly less than twice a week. In addition, Davidson utilizes a telephone tie line to talk to the 'The record also indicates that goods averaging in value $2,000 per week are transferred among the stores as needed . The normal weekly volume of the Metropolitan Area Division is $300,000. "Cf. Star Market Co.. Inc., d/b/a Dan 's Star Market. 172 NLRB No. 130. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD six stores in his responsibility about six to eight times a day. While there are a number of limitations placed on the autonomy and authority of the store managers, that which remains at the individual store level is, in our view,- most significant. Further, even assuming that the Area supervisor's visits Last an entire day (a fact not revealed by the record), it is clear that the individual store managers represent the highest level of supervisory authority present in the stores for a substantial majority of the time. Thus, hiring of new employees is substantially controlled by the store manager at the individual store . An applicant is first queried by the store manager as to what hours he is available. He then fills out a standard application blank and is interviewed by the manager, who then checks the applicant's references and decides whether or not to hire him. The manager may hire only in the clerk classification and only at the base rate; a new employee is considered probationary until a more detailed reference check is made centrally and clearance is secured from the bonding company." The area supervisor subsequently interviews the applicant, and it is possible that the store manager's decision to hire might be reversed. Each new employee must take an orientation course which is established centrally but is given in the store by the store manager. The hours that each store remains open and the total man-hours permitted to each store are set centrally. However, the schedule of hours of the employees at each store is made at the store level. The specific schedule of hours each employee works is decided upon and announced by the store manager and his assistant subject to approval by the area supervisor for conformity to State and federal law and company policy. If an individual wishes to change his hours of work, the decision is made locally by the store hierarchy unless it involves a deviation from company policy. If an employee seeks time off, the store manager may grant him up to I week. Leaves of absence of more than I week must be approved by the area supervisor. Vacation schedules are worked out at the store level by the store manager, the store hierarchy and the individual employees. If an irreconcilable conflict arises, the area supervisor may be called in. There are four ascending levels of discipline provided for by the Employer: oral reprimands, written reprimands, suspension , and discharge. An oral reprimand may be given to an employee at the store level without central approval. All other levels of discipline must be approved in advance by central authority. However, it is, of course, obvious that such actions are initiated and recommended at the local level. We have noted previously': that such factors as centralized bookkeeping, payroll records, "All employees are bonded purchasing, merchandising, advertising, and inventory control are of little or no significance to the issue before us, and see no reason to modify that view to accord them greater weight at this time. These functions are record keeping or administrative in nature and do not directly affect the employees' day-to-day work performance or concern the daily matters which give significance to the community of interest of employees in the store. We therefore look to the authority of the store manager to handle such matters as hiring and firing, grievances, and routine daily problems. Whether or not a proposed unit confined to one of two or more retail establishments making up an employer's retail chain or division thereof, is appropriate is to be determined in the light of all the circumstances of the case." The unit sought, confined to the Waterbury store employees, is, of course, presumptively appropriate." We conclude that the evidence herein, taken as a whole, supports that presumption. Thus, the Waterbury store is geographically separated from the other stores in the Division and essentially serves its own metropolitan area; for a substantial majority of the time the store manager is the highest level of management present at the store and is in charge of its day-to-day operations; the store manager exercises a marked degree of control over hiring, hours, and discipline; and there is only a small amount of permanent and temporary interchange, which does not tend to affect the stability of the single-store unit. Accordingly, in all the circumstances and in light of the principles enunciated in Haag Drug,15 we conclude that a unit confined to the employees of the Waterbury store is appropriate. The Intervenor would include the assistant manager, department managers, section heads, bookkeepers, and certain commission salesmen (more fully described below) while the Employer and Petitioner would exclude them variously as supervisors or because of lack of community of interest with the employees sought by Petitioner. The Assistant General Manager, appliance manager, camera department head, merchandise section manager, merchandise section head, receiving-marking manager, receiving-marking head, general merchandise bookkeeper, cash bookkeeper and cashier sponsor are all responsible for the day-to-day operations of their respective divisions, departments, or sections. As such, they assign work to employees responsible to them and direct them in the performance of their work. We shall exclude them from the unit found appropriate as supervisors. The appliance salesmen and camera salesmen are actively engaged in selling as opposed to the unit employees who primarily stock and "Haag Drug Co.. supra, Su, Market Co, d/b/a Dan 's Star Market, supra "Sav-On-Drugs, Inc, 138 NLRB 1032. "Haag Drug Company, Incorporated, supra "Ibid. THE GRAND UNION CO. service other self-service sections of the Employer's operations. Unlike other employees, they are paid on the basis , of commissions, and extra incentive payments. We shall exclude them as lacking a community of interest with the employees sought herein.'" Accordingly, we find that the following employees of the Employer constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 3(b) of the Act: All full-time and regular part-time employees of the Employer's store located at Waterbury, Connecticut, engaged in the handling and sale of goods, excluding the general manager, assistant general manager, the appliance manager, camera department head, merchandise section manager, merchandise section head, receiving-marking manager, receiving-marking head, general merchandise bookkeeper, cash bookkeeper, cashier sponsor, appliance and camera salesmen paid on a commission basis, temporary 233 employees, seasonal employees, professional employees, and supervisors as defined in the Act. [Direction of Election" omitted from publication.] "The record does not reveal the existence of any other office clerical employees, parking lot attendants, porters, or employees of concessionaries. Accordingly, although the Petitioner and Employer seek exclusion of these categories, we shall make no unit determination concerning them. "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 L within 7 days of the date of this Decision 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.