Purity Supreme, Inc.

PURITY SUPREME, INC. 915 Purity Supreme, Inc. and Retail Clerks Union, Local 224, RCIA, AFL-CIO, Petitioner. Case 1-RC-11945 June 23, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Robert A. Lieberman. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by order of the Regional Director for Region 1, this case was transferred to the National Labor Relations Board for decision. Thereafter, briefs were filed by the Petitioner and the Employer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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. The rulings are hereby affirmed. Upon the entire record in the case, the Board finds: The Petitioner filed its petition on January 31, 1972, seeking to represent a unit of all the employees in a single supermarket in the Employer's chain "excluding Meat, Fish, Delicatessen and Poultry Department employees" and all others excluded by the Act. The store in question is located in Plymouth, Massachusetts, and is approximately 50 miles from the company headquarters. At the hearing the Employer moved to dismiss the petition on the grounds that the unit sought was inappropriate. In support of its motion the Employer relied on the extraordinary degree of integration and centralized control extending to all phases of individual store operations and labor relations administration which, in its view, negated any finding that the employees in the recently opened Plymouth store enjoyed a community of interest separate and apart from other employees in the Purity Division.' The Petitioner, on the other hand, seeks only to represent the employees at the Plymouth store. Thus, i The Employer's operation is separated into two divisions, "Supreme" and "Punty " Both divisions are the result of a 1968 merger of two companies, Sav-More Supermarkets, Inc, and Supreme Markets, Inc., each of which operated some 15 stores At the time of the merger , Supreme Markets, Inc, which became the Supreme Division , was organized on a chain basis and such organization has been respected by the Employer to date The Purity Division, however, which is composed of 19 stores located the Petitioner claims that these employees enjoy a sufficient separate community of interest from the employees in the other nonunion stores in the chain to justify a single-store unit as being appropriate.2 The Employer's operation is directed by an executive committee that retains overall supervision of all phases of the business in all the Employer's 34 chainstores. The committee, made up of the Employ- er's president and various vice presidents in charge of labor relations, purchasing, supermarket operations, etc., meets regularly to establish chainwide policies with respect to merchandising and sales practices. Below the executive committee in the Employer's hierarchy are the various centralized department heads. These men implement policy on a chainwide basis, including every area of the Employer's business from personnel and labor relations to purchasing, merchandising, store operations, and advertising. All the merchandise for the entire chain is purchased by central purchasing agents and stored in four central warehouses. The merchandise is then delivered, when necessary, to the various stores in company-owned trucks which are serviced and stored in a central garage. All the Employer's advertising is done by a central advertising department on a chainwide basis. This department creates ads that, in the usual case,3 pertain to goods sold in all the stores, the locations of which are set forth in the daily or weekly food advertisements. In the merchandising department the prices to be charged for all the items sold by the Employer are centrally determined and passed on to the various stores by means of a price-posting book. This department, in conjunction with the buying depart- ment, also determines what products are to be bought and in what quantity. It is also centrally determined which products are to be promoted, displayed, advertised, or discontinued. Additionally, they determine how much of each product will be allocated to each store and whether products should be sent from one store to another, depending on central promotional goals and related surpluses or deficiencies. The merchandising department communicates its directions to each store by means of a weekly bulletin which includes complete instructions as to pricing new items, discontinuing items, displays, in various cities throughout the States of Massachusetts and New Hampshire, is unorganized. 2 The Petitioner cites Haag Drug Company Incorporalea 169 NLRB 877, in support of its position. 3 The exceptions are special grand opening sales held when a new store in the chain is opened. Here handbills were sent out in the local area around Plymouth just before this store was opened. 197 NLRB No. 157 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sales, and various information on all the different aspects of transmitting the product to the consumer. In the area of employee relations, company policies are centrally determined by the labor relations department which is composed of the personnel, payroll, and employment divisions. All payroll records are kept at the central office and all checks are made out by the central payroll department. An employee receives only one weekly check regardless of whether he worked in one or more stores during that week. Employment processing for all full-time employees is handled centrally and includes recruiting, inter- viewing, reference checking, etc. All employees fill out an application which is worked up by the central employment office. There is one wage structure and one package of benefits for all employees in the Purity Division. However, eligibility for benefits is determined on the basis of companywide seniority. Below the various department heads in the Em- ployer's management structure are the zone supervi- sors. They are central office executives who are responsible for implementation at the store level of the centrally determined policies. They are responsi- ble for both individual store operations and person- nel administration in a subgrouping of the stores.4 The zone supervisors spend virtually all their time in the stores, visiting each store in their zone at least two to three times a week. When not physically present in a particular store, the zone supervisors keep in communication through direct company telephone lines to each department within the stores. Included in the duties of the zone supervisor are: budgeting man-hours for the stores and the depart- ments within the stores; 5 determining temporary employee transfers; 6 being responsible for perma- nent employee transfers; making the initial recom- mendation for merit increases or promotions which are finally approved by the Vice President of Store Operations; making recommendations to the Vice President of Store Operations concerning discharges and making the actual decisions in less major disciplinary cases based on his own investigation of the facts.? In contrast to the zone supervisor, who works in the stores and actually makes day-to-day decisions affecting the operation of the stores and the administration of personnel policies, the store man- 4 The zone supervisor for the Plymouth store is David Flynn who has responsibility for three other stores. 5 The zone supervisor works from a general allocation of man -hours, worked up by the central scheduling department. 6 An employee is considered a temporary transfer during any week if he spends any part of that week working in a store other than his home store. 7 While the record indicated that a store manager could immediately suspend an employee for "outrageous conduct" such as stealing , etc, such action is subject to review by the zone supervisor 8 There is some evidence in the record that the store manager and his ager is basically a liaison between top management and the employees. He shares the same pension, vacation, and insurance plans with the employees and is frequently transferred from store to store, as are the employees. He cannot order merchandise and does not participate in any of the management meetings in which store policy is set. He receives no bonuses for his store's performance and serves only to implement decisions made on a broader scale in the Employer's operating scheme.8 With specific reference to the Plymouth store, the record shows that the Employer's central employ- ment manager conducted all hiring activities con- nected with opening this store, including interview- ing, checking references, and hiring of applicants. He also explained company benefits to the new employ- ees after hiring them. Although the recruiting and subsequent hiring was centered around the immedi- ate Plymouth area, the record shows this to be regular company policy. Furthermore, the record shows 10 permanent transfers of employees to this store from various other stores, each being located a substantial distance away from Plymouth. The record also reveals the fact that several central office specialists have spent most, if not all, of their time in the Plymouth store since its opening in an effort to make it operational. Inasmuch as the Plymouth store had been opened less than 2 months prior to the hearing herein, little or no record of transfers could be shown for this store. However, the record does show 26 temporary and 10 permanent transfers to Plymouth during January and February, but these figures are admit- tedly inflated since the transfers are a normal occurrence upon opening a new store. With respect to the Employer's other stores, which have been in existence for some time, the Employer's statistics show 2,801 temporary transfers in the 25-1/2 months just preceding the opening of this store. Company records further show that these transfers occurred regularly over the period and involved every store in the Purity Division. Additionally, the record shows 325 permanent transfers during 1970 and 1971 involving 190 different employees .9 The Employer's labor relations manager testified at the hearing that it is the Company's policy to restrict employee transfers to within their divisions. While Petitioner did point out on cross-examination that assistant have authority to change an employee's hours and handle customer complaints However, the record indicates that any number of individuals within the store share the same authority with respect to complaints and in the ordinary situation an employee would go to his store department head to request a change in hours, as that individual makes out the schedules along with the zone supervisor. 9 An employee is considered a permanent transfer when the new store to which he is transferred includes him on its work schedule and the central payroll records are changed to show the new permanent assignment PURITY SUPREME, INC. the Company's employment records reveal several cases where this policy was not followed, inspection of these records does reveal that the vast majority of the transfers mentioned above were solely within the Purity Division. As we stated in the recent Star Market Co.10 case, "we will adhere to our policy of finding a single store to be a presumptively appropriate unit, but that such presumption might be overcome, as where it was shown -that the day-to-day interests of employees in the particular store had merged with those of employees of other stores." Significant factors to be considered in this regard are "whether or not the employees perform their day-to-day work under the immediate supervision of a local store manager who is involved in rating employee performance, or in performing a significant portion of the hiring and firing of the employees, and is personally involved with the daily matters which make up their griev- ances and routine problems." Judged against this criteria, the record herein clearly shows that the presumption, i.e., that the Plymouth store constitutes an appropriate unit, has been rebutted. All the hiring for the Plymouth store was done by a central office manager and, practically speaking, none of the firing can be done by the local store manager. The zone supervisor is responsible for 917 rating employees for promotions and merit increases and is also the person who handles transfers from store to store. Thus, the record indicates that the individual store manager performs none of the significant tasks which would indicate that the employees in his store have a separate community of interest from the employees in the other stores. In view of the foregoing circumstances, including the store manager's lack of authority in personnel matters, the amount of employee interchange, and the high degree of integration and centralization of the Employer's operation, we are of the opinion that the geographical separation of the Plymouth store from the other stores in the Purity Division, standing alone, is an insufficient basis to find that the requested single-store unit is appropriate. We find, therefore, that, with respect to the unit petitioned for, no question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. Accordingly, we shall dismiss the instant petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 10 172 NLRB No. 130