R. N Market, Inc.

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R - N Market, Inc. and Retail Clerks Union, Local 1288, Retail Clerks International Association, AFL-CIO, Petitioner. Case 20-RC-9480 May 7, 1971 DECISION ON REVIEW BY MEMBERS FANNING, BROWN, AND KENNEDY On October 22, 1970, the Regional Director for Re- gion 20 issued a Decision in the above-entitled proceed- ing in which he found inappropriate the Petitioner's requested unit of the Employer's grocery employees excluding its meat department, and instead directed an election in a unit of all the employees of the store. Thereafter, pursuant to the National Labor Relations Board Rules and Regulations, the Petitioner filed a timely Request for Review of the Regional Director's Decision, contending, inter alia, that the Regional Di- rector departed from officially reported Board prece- dent in finding the requested unit inappropriate. The Employer filed opposition to the Request for Review. By telegraphic Order dated February 18, 1971, the National Labor Relations Board granted the request and stayed the election.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the entire record in this case with respect to the issue under review, and makes the following findings: The Employer is a California corporation which op- erates a retail grocery store in Exeter, California. The manager of the store, Raymond Chun, is also the Em- ployer's principal stockholder. At the time of the hear- ing the store's complement consisted of about 13 em- ployees including 4 in the meat department. All store employees are supervised by Chun. There is no bargain- ing history. The meat department, the employees of which Peti- tioner seeks to exclude, is located in a separate work area within the store. Two of the meat department employees, John Cook and Han Lau, work primarily as butchers and spend 90 percent of their time in this department. Virtually all of the remainder of their time is spent in stocking the meat portion of the delicatessen counter which is adjacent to meat department. The other two meat department employees, Peter Lau and Anna Low, are principally engaged in wrapping and selling meat, although they may likewise perform meat cutting. Anna Low, on occasions such as illness or vacation, has assisted grocery employees. ' The Board denied the Petitioner's Request for Review with respect to certain other contentions raised therein. Grocery employees have also worked intermittently in the meat department. Thus, during the lunch hour each day, one grocery employee is assigned to wrap and sell meat. Over a period of several years the Employer has ordinarily rotated this relief assignment among the grocery clerks. Other than the lunch hour period, a grocery clerk may also be called upon to work in the meat department when an emergency arises. All em- ployees receive the same health, welfare, vacation, and holiday benefits. On these facts, but primarily relying upon the inter- change between grocery and meat department em- ployees and common overall supervision by Raymond Chun, the Regional Director found, in agreement with the Employer, that only an overall unit of all store employees is appropriate. We disagree. Since its lead decision in Mock Road Super Duper, Inc., 156 NLRB 983, the Board has normally found appropriate a unit of grocery employees excluding meat department personnel where the separate grocery unit was sought.' In making these determinations the Board has recognized an emerging bargaining trend in the retail food industry generally, whereby grocery em- ployees and meat department employees are repre- sented in separate units'-a trend which is consistent with the community of interest enjoyed by grocery clerks separate and apart from that of meat department employees based upon the different skills, experience, functions, work locations, and conditions of employ- ment of these two employee groups.' We believe, con- trary to the Regional Director, that the record supports the conclusion that in the present case these two groups also enjoy separate communities of interest. Thus the employees sought-by the Petitioner perform the usual functions of grocery clerks, i.e., checking out purchases, bagging groceries, stocking shelves, and maintaining the produce bins and frozen food chests. Some of the grocery employees also regularly replenish the grocery portion of the delicatessen counter. The meat department employees, for their part, cut, wrap, and sell meat in their own work area. And their separate interests are underscored in this case by the fact that the Employer operates its meat department essentially on a cut-to-order basis rather than with the use of prepackaged or prewrapped meats. This custom system requires the services of two highly skilled meat- -cuters, each of whom has more than 8 years' experi ence in his trade. The two meatcutters receive the high- est wages in the store. ' Priced Less Discount Foods, Inc., d/b/a Payless, 157 NLRB 1143. Al- lied Super Markets, Inc., Allied Discount Foods Discount, 167 NLRB 361; The Great Atlantic & Pacific Tea Company, Inc., 162 NLRB 1182. And see Big YSupermarkets. 161 NLRB 1263, 1268, wherein the Board held that a unit of meat department employees is presumptively appropriate. ' Mock Road Super Duper, Inc., supra; Priced-Less Discount Foods, Inc., d/b/a Payless, supra; Allied Super Markets, Inc., supra. Id. 190 NLRB No. 49 R - N MARKET In addition to the different skills, functions, and ex- perience of the employee groups, there are other factors which militate in favor of the separate representation of grocery employees. Thus, there is no prior history of bargaining for these employees, and no labor organiza- tion seeks to represent them in a broader unit. Further, the record indicates that Petitioner has contracts with some 70 employers in the local area covering over 300 retail grocery stores and employing about 1700 grocery clerks and in each contract meat department employees are excluded from the collective-bargaining unit.' Unlike the Regional Director, we are not persuaded that these factors are outweighed by the interchange of the Employer's grocery and meat department em- ployees nor by the common overall supervision by Ray- mond Chun. A certain amount of interchange in a store of this size is predictable. However, the interchange of the Em- ployer's meat department employees outside their de- partment is negligible. And the assignment of grocery clerks to duties in the meat department occurs only at the lunch hour or in emergency situations. We do not regard the latter interchange to be substantial,' particu- larly where, as here, it does not appear that grocery clerks are ever called upon to exercise the skills of a meatcutter when they are filling in for meat department employees. While Chun is the only individual at the store whom the record indicates to be a supervisor within the mean- ing of the Act, an otherwise appropriate unit of em- ployees will not be defeated merely because there is ' See Mock Road Super Duper, Inc., supra. Petitioner's pattern of bar- gaining is consistent with that for other stores organized by its sister locals in northern California ' Big YSupermarkets, supra, The Great Atlantic & Pacific Tea Company, Inc, supra. 293 common supervision over unit and nonunit personnel.' In all the circumstances of this case-particularly the differences in skills, functions, and wage&of grocery employees and meat department employees; the insub- stantial interchange between the two groups; the sepa- rate work area of meat department employees; the evi- dence of area bargaining patterns, which are consistent with the general trend in the retail food store industry; and the absence of any bargaining history or claim by another labor organization for a broader unit-we con- clude that a unit of the Employer's grocery employees, excluding the meat department, constitutes an appro- priate bargaining unit within the meaning of Section 9(b) of the Act.' Accordingly, the case is remanded to the Regional Director for the,purpose of conducting an election pur- suant to his Decision, as modified herein, except that the eligibility payroll period therefor shall be that im- mediately preceding the date below.' ' See, e g., Shumate, Incorporated 131 NLRB 98; Worzella Publishing Company, 121 NLRB 78 In view of our disposition of the case, we find it unnecessary to reach or consider Petitioner's contention that certain individuals should be ex- cluded from the meat department on the ground that they enjoy a special status by virtue of their family relationship to Raymond Chun However, according to the Request for Review, a sister-in-law of Chun's, Karen Lau, wac hired after the rir r of the hearing apparently to work as a grocery clerk It appears that she may have special status Accordingly Karen Lau , if still employed, may vote subject to challenge ' 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 ad- dresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, NLR.B v Wyman-Gordon Co, 394 U S 759. Accordingly, it is hereby directed that an amended 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 20 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