Primrose Super Market of Malden, Inc.

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Primrose Super Market of Malden , Inc. and Retail Employees Union , Local 1435, Retail Clerks International Association, AFL-CIO, Petitioner. Case 1-RC-10038 September 22. 1969 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Reginald Gagnon and Norman Zankel, Hearing Officers of the National Labor Relations Board.' After the close of the hearing, the Employer filed a brief with the Board. 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. The Board has reviewed the Hearing Officers' 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 purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims 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)(1) and 2(6) and (7) of the Act. 4. The Petitioner requests an election in a unit limited to all meat department employees in the Employer's Malden. Massachusetts, supermarket, excluding service delicatessen employees. The Employer contends that the only appropriate unit is all employees in all its stores, or in the alternative all meat department employees in all its stores, but that service delicatessen employees should be included if the Board finds a meat department unit appropriate. The parties stipulated that the meat department manager he included in the unit. The Employer operates a chain of nine discount supermarkets with executive offices in Haverhill, Massachusetts There is no history of collective bargaining in the Malden store, but a single-store unit in the Employer's older Salem, Massachusetts, store was found by the Board in 1964 to he an appropriate unit.2 'After the hearing and pursuant to Sec. 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director issued an order transferring the case to the National Labor Relations Board for decision 'Primrose Super Market of Salem , Inc . 148 NLRB 610, enfd 353 F 2d 675 (C A I), cert denied 382 U S 830, motion for reconsideration denied The Employer's stores are located in the Massachusetts communities of Haverhill, Newburyport, Peabody, Melrose. Maiden, Roxbury, Georgetown. and Salem. From the central office in Haverhill it is approximately 23 miles to the Malden store, 30 miles to Roxbury, 28 miles to Salem, 16 miles to Newburyport, and 20 miles to Georgetown. The nearest stores to Malden are at Melrose, 2 miles, Peabody, 8 miles, and Newburyport, 22 miles. Each store is incorporated separately. and four supporting corporations handle real estate, advertising, trucking, and management functions. Each corporation keeps separate accounting records and files separate tax returns. The management corporation handles all payroll and personnel records. It charges each store's weekly payroll against that store's labor budget account. The officers and directors for all the corporations are the same: and brothers Arthur and George Karembelas, President and Treasurer-General Manager, respectively, own all the stock. All nine stores have the same business hours, except that Malden and Peabody close at a later time on 3 nights per week pursuant to the practices in their respective shopping center locations. The Haverhill office directs maintenance and repair for all stores, and such work is performed by employees of the real estate corporation or by independent contractors. Banking is somewhat centralized, but at least the Maiden store has its own account in a local bank. There is a direct telephone line from the offices to the stores. Employees sometimes work at a second store on their day off and generally receive one paycheck for the week: but on many occasions such employees receive two checks and, it appears, are not paid at overtime rates for work performed at the second store. Merit raises and fringe benefits are administered on a chainwide basis, but seniority is determined on a storewide basis. When an employee requests a pay raise outside the regular merit system, his department supervisor makes the decision after consulting his department manager and/or store manager. Full-time employees are hired centrally for the chain, but part-time employees, of whom there are many, generally live in the community in which they work and are hired either centrally or at individual stores. The business policy of each store is determined by the Haverhill office At weekly meetings the general manager and the department supervisors-_ meat, grocery, and, produce-- establish a sales plan. This includes specials, pricing, merchandising, and labor budgets. Then these Company officials negotiate the purchase of merchandise for the week and arrange for its transportation from suppliers to the stores, from temporary storage at Salem and Melrose to the stores, and in substantial quantities from store 353 F 2d 675 (C.A I) See also Primrose Super Market of Salem, Inc. 17l NLRB No 140 178NLRBNo 90 PRIMROSE SUPER MARKET OF MALDEN, INC to store. Advertising for the weekly plans is carried out almost exclusively by direct mail flyer, and one flyer mailed from Haverhill serves all stores. The general manager and the three department supervisors work from Haverhill and bear overall responsibility for operations. George Karembelas, the general manager, visits each store about twice each week, and the department supervisors visit each store for a few hours several times per week. The stores are in frequent contact with the central offices via the direct telephone lines. Each store has a manager, an assistant manager, a meat department manager, a grocery department manager, and a produce department manager The department supervisors go over the weekly sales plans with their respective department managers at individual stores. The individual store managers see that their stores open on time, make bank deposits or see that they are made, set up the registers, place and shift cashiers, and have general responsibility for seeing that the sales plans are carried out, and coordinate the work of the department managers. As a general proposition they are supposed to check with Haverhill concerning most day-to-day matters. However, in actual practice, usually without consultation, they allow employees to leave work early, change employee work schedules, often select employees to receive overtime work, see that employees arrive on time for work, adjust customer complaints, and make recommendations on probationary employees that carry "great weight."' They receive a bonus based on sales volume, and can increase that bonus by "run[ning] a better store." The store department managers meat, grocery, and produce - also receive a bonus, based on sales volume in their respective departments. They set up the employee work schedules, and any approval of those schedules by central supervisors is a formality. They schedule employee breaks and shift employees from task to task, on their own authority. As a general proposition they are supposed to check with Haverhill concerning most other day-to-day matters. In practice, usually without consultation, they change the employee work schedules, release employees early from work, make recommendations on probationary employees and merit promotions that carry great weight, set prices to the extent of disposing of aging or overstocked merchandise, and make some purchases of merchandise. The Malden meat department manager hires part-time employees on his own authority, and, while this may be a technical violation of Company rules, he has never been criticized or disciplined for doing so. Malden meat department employees Thomas Marshall and Robert Moylan testified that their meat department manager set up their work schedules, changed those 'In an operation with approximately 450 employees and a high employee turnover, grocery and front-end supervisor Fred Moore could recall only one instance in which a store manager's recommendation was not followed in this regard 567 schedules on the spot, and released employees early from work, without, to their knowledge, consulting the meat supervisor or anyone else. There is some transfer and interchange of employees among the nine stores, ranging from half-day fill-ins to permanent transfers. However, the record show's that the vast majority of such personnel shifts are confined to the extraordinary circumstances surrounding the opening of new stores." in view of the limited number of temporary and permanent transfers occurring under ordinary business conditions, the size of the chain's workforce (some 450 employees), and the high rate of turnover of employees, it appears that only a very small portion of the workforce has any history of employment at more than one store. Additionally, most of those employees who have worked at more than one store have done so only to the extent of one or two short fill-ins away from a regular place of employment.5 We conclude from the record that employee transfer and interchange among the nine stores is not extensive under normal business conditions. The Malden store opened in August 1967. There was extensive employee transfer and interchange at the opening, and for a few months thereafter,' but after January 1. 1968, the workforce stabilized for normal operations. After that date there were relatively few shifts of personnel involving the Malden operation, except for a number of temporary fill-ins connected with the opening of still 'Employer's Exhibit 4 is a set of transcriptions from its payroll records of January 1966 .May 1968, showing the number of interstore personnel moves during that 2 1/2 year period Employer's Exhibit 5 is a summary of these transcriptions , and shows that 198 different employees participated in 962 such moves However, an examination of the transcriptions shows that these figures are not accurate (1) The total number of fill-ins and longer transfers shown in Employer's Exhibit 5 has been inflated by 198, by raising each individual total in Employer's Exhibit 4 by one It appears that the individual totals were tabulated correctly , then erased and raised Iherc is no explanation in the record for this increase (2) The summary total has been inflated by more than 50, by showing that various employees who worked in a store at the end of a business year "transferred" into that same store to start the next business year. (3) The transcriptions contain obvious errors which inflate the totals . A spot check of the transcriptions shows, for example, that employees Richard Wilcox. John Pirotta, and Gail Shepard are credited with "transferring" several times each into stores they were already working in Thus it appears that in many instances the compilers of the statistics were counting time cards, not transfers . (4) The list of employees includes at least one supervisor, Malden meat department manager Gabriel Flores it is possible, therefore, that the names of other supervisors are included in this list, with attendant inflation of the transfer totals (5) The totals include the "tansfers" of at least eight employees who, admittedly, regularly work in two or more stores (6) The totals include the extraordinary short, long term, and permanent transfers involved in closing a store at Lawrence, opening a new store at Malden, and opening a new store at Roxbury An examination of the transcriptions shows that the opening of the Malden store alone accounted for almost 250 personnel moves of varying duration ' An examination of the transcriptions in Employer's Exhibit 4 shows more than 60 of the 198 employees (minus supervisors ) with some history of working in more than one store fell into this class 'Employer's Exhibit 4 shows 164 moves to and from Malden in August, 40 moves in September, 8 moves in October, 22 moves in November ( including fill -ins to cover the mass discharge of 8 employees for theft). and 15 moves in December (13 of which were returns to a regular place of employment for employees who had been assigned to open the store in August) 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another new store, at Roxbury.' With reference to the Maiden meat department, the record shows that at least three employees who originally opened that operation, Robert Moylan, Thomas Marshall, and Mary Purdy, were still employed there on a regular basis at the time of the hearing in this case. Their only non-Malden employment consisted of scattered day-off work at other stores. Meat department employee Robert Bolduc began working for the chain at Maiden in January 1968, and remained there until transferred at his own request in June. Edward Lavoie began working for the chain in the Malden meat department in February 1968, and had not worked at any other store at the time of the hearing in this case. Additionally, the record discloses the names of six part-time Malden meat department employees who have not worked at any other store. On the record as a whole, we conclude that employee transfer and interchange involving the Malden store and the Malden meat department is not extensive. Eight weeks before the hearing in this case the Employer set up a service delicatessen at Malden, similar to the ones at Haverhill and Peabody, and distinguished from the self-service delicatessen counters at all stores, featuring both prepackaged and fresh-cut cold-cuts, salads, and the like. It is on the opposite side of the store from the red meat cases, some 60 feet away, and has the only separate cash register in the store. The service delicatessen is included with the meat department in the Employer's weekly sales plans, including purchasing and pricing. The meat supervisor is responsible for hiring and firing, and while there is no separate manager, the meat department manager occasionally oversees its operation. Delicatessen sales reports are kept separate from meat sales reports up to the point of final totals. but the meat manager's bonus is based on that combined total. Delicatessen labor costs are charged against the meat department labor budget in bookkeeping. Meat department employees cut orders for the service delicatessen and cook food for it on a rotisserie. At times meat department employees cover for delicatessen employees who are absent or on a break, and the record does not show that either meat or delicatessen employees have any interchange with other departments. Meat and delicatessen employees wear white smocks, while other employees wear green smocks. Meat and delicatessen pay rates are similar to each other and somewhat higher than the pay rates of other employees. In view of the foregoing, we find that the considerations which normally warrant finding appropriate a separate single-store unit of meat 'Employer's Exhibit 4 shows 17 moves in January (most of which were permanent transfers into the store), 7 moves in February (most of which were short fill-ins to help open another new store at Roxbury), 4 moves in March (mostly to Roxbury ), 16 moves in April (almost all of which were fill-ins at Roxbury) department employees' are present in this case. Here the record does not establish exclusive control over all stores and all matters affecting employees by central office executives.' .Rather, the real locus of effective exercised authority over day-to-day personnel matters, both in fact and in the eyes of the workforce, lies in the meat department itself. The meat department manager makes up the employee work schedules, changes those schedules, sets employee breaks, shifts employees from task to task, releases employees early from work, hires part-time employees, makes recommendations on probationary employees and promotions that carry great weight, and generally directs the operations of his department. The Employer's general rule purportedly requiring prior, or at least subsequent, supervisory approval of every matter affecting day-to-day operations and personnel is not enforced, and managers who violate the general rule are admittedly not criticized or disciplined for the violation. Higher management approval is sought irregularly, and when sought is given pro forma. The store manager's authority further dilutes the general proposition of pervasive central control, as, to some extent, do the bonuses based on sales at individual stores and in individual departments."' The community of interests of the Malden meat department employees differs from that of other employees in the same store and that of other meat department employees in other stores. Effective control over the matters of concern to them lies with their department manager, and their duties, attire, wage rates, supervision, and conditions of employment set them apart from other employees in the store. Employee transfer and interchange is not extensive, except in connection with the opening of new stores and the closing of old stores. In short, the evidence here is not sufficient to overcome that presumption that a single-store unit is appropriate." The parties stipulated that the Malden meat department manager be included in the unit." The record shows, however, that the Malden meat department manager is salaried and receives a bonus based on sales, makes up the employee work schedules, responsibly directs employees at their jobs, hires part-time employees, makes effective recommendations on raises and probationary employees, and is regarded by the employees as their supervisor. In these circumstances we cannot accept the stipulation of the parties. We find that the meat department manager is a supervisor as 'The Great Atlantic and Pacific Tea Company, Inc. 130 NLRB 226, Weis Markets , Inc., 142 NLRB 708, Mock Road Super Duper, Inc, 156 NLRB 983 'Cf. Mott's Shop-Rite of Meridan , Inc, 174 NLRB No 157, where there was minimal local control over employees and their day-to-day problems by the store managers "See, Shop' n Save Co . Inc 174 NLRB No 156, where individual store profit sharing was a factor in finding a single-store unit appropriate "See, Haag Drug Company , 169 NLRB No 111 "Near the close of the hearing the Petitioner indicated a willingness to withdraw from this stipulation PRIMROSE SUPER MARKET OF MALDEN, INC. defined in the Act, and we shall exclude him from the unit." The community of interests of the service delicatessen employees is clearly identified with that of the meat department employees. Administratively the service delicatessen is part of the meat department. There is some employee interchange between the meat department and the delicatessen, but no interchange with the other store departments. The meat and delicatessen employees share similar rates of pay that are generally higher than the rates of other employees, and they share similar attire, similar duties, and common general supervision. Therefore, we shall include the service delicatessen employees in the unit.' Accordingly, upon the above facts and the record as a whole, we find that the following employees of the Employer constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: 569 All meat department employees of the Employer at the Employer's Malden, Massachusetts, supermarket, including service delicatessen employees, but excluding all other employees, guards, the meat department manager, and other supervisors as defined by the Act. [Direction of Election15 omitted from publication.] "Vent Control Inc of Ohio, 126 NLRB 1134 " Compare, Seaway Food Town, Inc, 171 NLRB No 107. "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 of the eligible voters must be filed by the Employer with the Regional Director for Region l within 7 days of the date of the 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