Food Marts, Inc.

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Food Marts, Inc. and Retail Clerks International Association, Retail Store Employees Union, Local 1459, AFL-CIO 1, Petitioner and Local 33, Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO 2, Petitioner. Cases 1-RC-9986, 1-RC-10042, 1-RC-10097, and 1-RC-12112 November 7, 1972 DECISION AND DIRECTION OF ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Robert N. Garner. 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 direction of the Regional Director for Region 1, the case was transferred to the Board for decision. Thereafter, the Employer filed a brief with the Board. 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. 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. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Retail Clerks seeks separate units for three of the Employer's stores. The Employer contends that only a single unit of the three stores is appropriate. The Meat Cutters also seeks a three- store unit. The Employer is a Massachusetts corporation engaged in the operation of a chain of 19 retail food 1 The Retail Clerks intervened in Case 1-RC-12112 on the basis of a showing of interest 2 The Meat Cutters intervened in Cases 1-RC-9986, 1-RC-10042, and 1-RC-10097 on the basis of a showing of interest 3 In 1968, the Meat Cutters sought to represent the employees in all the Employer's stores The Retail Clerks sought representation of only the employees in the Fairview, Agawam, and Belmont Avenue stores, the meat and delicatessen department employees in all the stores were already stores in Massachusetts and Connecticut, with the central office in Holyoke, Massachusetts. All the stores in Massachusetts and the one in Enfield, Connecticut are within a 14-mile radius of the central office and are under the supervision of the district manager for Massachusetts. The three stores in question here are located in Agawam, Fairview, and on Belmont Avenue in Springfield. The Agawam and Belmont Avenue stores are .3 miles apart; the Fairview store is 5 miles from the Belmont Avenue store.3 The administration of the stores is centrally controlled at the main office in Holyoke. At the central office, corporate policy for the whole chain is formulated. The vice president-treasurer, who is also the director of personnel, is responsible for all the administrative and financial operations, including all the accounting procedures, labor relations, contract administration, expense control, and wage and benefit administration. He is responsible for the hiring of all full-time and permanent employees and must approve the hiring of part-time employees.at the stores as well as wage increases and promotions. He also investigates and acts on all disciplinary action taken by the local store or department managers. The director of store operations has the responsi- bility for implementation of the merchandising, mechanical, and maintenance and repair programs. Under him are two district managers, each having authority over one of the two divisions of the Employer. Three directors of operations have the responsibili- ty for the purchasing, pricing, and shipping of merchandise for three departments within the stores -produce, grocery, and meat. Under the directors of operations are the road supervisors, who spend almost all their time in the stores ensuring that company policies relating to merchandising are effectuated in the individual departments of each store. Seniority is on a companywide basis, based on an employee's continuous length of service in the employ of the Employer. The seniority lists, which are maintained at the central office, are used in determining promotions, layoffs, and vacation sched- ules. With respect to transfer of employees among the stores in question, there are both permanent and represented by the Meat Cutters While a Board hearing to determine the question of representation was in adjournment , the Employer recognized the Meat Cutters as the bargaining representative for all its stores' employees The Board later found in Holyoke Food Mart, Inc, 191 NLRB No 94, that the Employer had thus violated Sec. 8 (a)(2) of the Act and therefore ordered it to withdraw recognition of the Meat Cutters, in the three stores in question, as the representative of the employees involved in this case. 200 NLRB No. 5 FOOD MARTS 19 temporary transfers, which are usually determined by the road supervisor. Permanent transfers are made because of prolonged illness, termination, or promo- tion. Temporary transfers are made to fill temporary vacancies. At each store, there is a manager who is responsible for the day-to-day operation of the store, including the opening and closing of the store, customer relations within the store, the condition of equipment within the store, repairs and maintenance within the store, the cleanliness of the store, and the security and safety of the money and merchandise within the store. The store manager makes the initial decision to hire part-time employees, but that decision has to be approved by the director of personnel. The store manager does not have the authority to discharge. He may suspend an employee, pending an investiga- tion and final action by the director of personnel. The central office determines the budget for each store on the basis of which the district manager in conjunction with the store manager and department managers determine the scheduling of work. The Board has held, with respect to retail chain operations, that a "single store unit is presumptively appropriate absent a bargaining history in a more comprehensive unit or a functional integration so severe as to negate the identity of a . . . single-store unit." 4 The presumption may be rebutted where it is shown that the day-to-day interests of employees in the particular store may have merged with those of employees of other stores. We find this to be such a case and are of the opinion that the presumption of appropriateness which attaches to a single-store unit has been rebutted. We note, for example, the lack of autonomy at the single-store level, as reflected by the strict limitations of the store manager's authority in personnel, labor relations, merchandising, and other matters; the extensive role played by officials at the main office in the daily operations of the store; the geographical proximity of the stores; and the transfer of employees among them. Upon the entire record, therefore, we find that a single unit of the requested employees is appropriate.5 Turning to the question of unit composition, the parties have stipulated that the store manager at each store is a supervisor as defined in the Act. The parties also have stipulated to exclude from the unit administrative employees, executives, buyers, mer- chandise specialists, engineering employees, mainte- nance and technical employees, and quality control employees. In each store, the Employer would exclude the produce department manager, the grocery department manager, and the assistant grocery department manager as supervisors as defined in the Act. The Employer also would exclude as a supervisor the beer and wine department manager at the Agawam store. (Neither the Fairview nor the Belmont Avenue store has a beer and wine department.) The Retail Clerks would include all the department managers and assistant department managers; the Meat Cutters took no position on this issue. The Retail Clerks would include, while the Employer would exclude, the employees in the beer and wine department at the Agawam store; the Meat Cutters took no position on this issue either. There are approximately three clerical employees at each of the three stores involved herein. The Retail Clerks would include, while the Employer and the Meat Cutters would exclude, them. The Retail Clerks would include, while the Employer and the Meat Cutters would exclude, the janitor at each Department Managers The managers of each department (produce, grocery, and beer and wine) are responsible for all the work in their respective departments, including the ordering, receiving, storing and marking of merchandise, the maintaining of proper price levels, markdowns, and management of the work force, supplies, and labor expenses. In performing these duties the department managers determine the work schedules and assignment of overtime for the employees in their departments. They also play an effective role in the hiring of part-time employees, and the discipline and discharge of all their employ- ees, through their recommendations. Moreover, the department managers are responsible for the gross profits of their departments. They participate in the staff and management pension and insurance pro- grams, which cover all executives and managerial personnel. They have unlimited sick leave and do not have to punch the timeclock. They are salaried, are paid higher wages, and receive an annual bonus. We find that the department managers are supervi- sors as defined in the Act and, accordingly, we shall exclude them from the unit. Assistant Grocery Department Manager The assistant grocery department manager super- vises the receiving of merchandise, and he has responsibility for special ordering and for the design, * Frisch's Big Boy Ill-Mar, Inc, 147 NLRB 551. presently occupying these positions, we will not make any specific 5 Nobody has requested that the employees be given a choice of determination with respect to such classifications We note, however, the representation as part of the existing 16-store unit statutory restrictions on grouping of guards or professional employees with 6 The Employer would exclude professional employees, management other employees trainees, and watchmen and guards , but since there are no employees 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construction, and ordering of merchandise for all the end displays. He receives higher pay than other employees. Both the assistant grocery department manager and the grocery department manager act as store managers, in the absence of the store manager, for 27 of the store's 72 open hours. When the grocery department manager substitutes as store manager, the assistant grocery department manager becomes the grocery department manager and shares the position of store manager with the grocery depart- ment manager. Functioning as store managers, the grocery department manager and the assistant grocery department manager have the same responsi- bilities and duties as the store manager. We find that the assistant grocery department managers are also supervisors as defined in the Act and, accordingly, we shall exclude them from the unit. Beer and Wine Department Managers at the Agawam Store The beer and wine department in the Agawam store operates on a substantially independent basis from the store. Thus, its funds are not commingled with the store funds but are deposited in a separate bank account. The department itself is partitioned off from the rest of the store. Supervision of the department is not the responsibility of the district manager of the Massachusetts Division. There is a special executive at the central office who is responsible for surveying the inventory and balanc- ing and examining the accuracy of the department's quarterly statement. The department is not subject to the control of the supermarket executives at the central office. The store manager has no authority over the beer and wine department manager. The beer and wine department manager schedules employee hours and recommends wage increases without the store man- ager's intervention. He also orders merchandise directly from the vendor and fixes the prices for sale, unlike the other department managers within the store. As a result of the department's independence, there is no interchange between the manager and the employees of the beer and wine department and the managers and employees of the meat, grocery, produce, and service departments. The employees in the beer and wine department are treated differently from the employees in the other departments in the store. Thus, the beer and wine department has different business hours from those of the other store departments, and the beer and wine department employees have a different scale of wages and participate in the staff and management pension and insurance programs. We find that the employees in the beer and wine department of the Agawam store do not share a sufficient community of interest with the other employees within the store to be included in the same unit. Accordingly, we shall exclude them from the unit. Clerical Employees There are two clerical employees in each of the three stores who work primarily in the courtesy booth. They distribute and collect the cashiers' cash drawers, reconcile and balance the daily deposits made by the store manager, advise the central office of the amount of the daily deposit, distribute paychecks, and deal with customers, mainly by cashing checks. The cashiers have contact with the clerical employ- ees in the regular course of their work. The clerical employees have obtained their positions by promo- tion from the position of cashier, and they are therefore qualified to substitute as cashiers, which they do in certain situations, although they work on a different schedule. Unlike other employees, the clericals have participated in the staff and manage- ment insurance and pension programs. In all the circumstances, we find that the clerical employees share a sufficient community of interest with the other employees to be included in this food store unit. Janitors The janitors, one in each store, are responsible for cleaning the floors and restrooms, before or after store hours. Since they work in the same store as the other employees and have the same ultimate supervi- sion, and since no union seeks to represent them separately, we shall include them in the unit as requested by the Retail Clerks. In view of the above, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer in its stores in Fairview and Agawam, Massachusetts, and Bel- mont Avenue in Springfield, Massachusetts, including the clerical employees and janitors, but excluding employees in the meat and delicatessen departments, the employees in the beer and wine department of the Agawam store, administrative employees, executives, buyers, merchandise spe- cialists, engineering employees, maintenance and technical employees, quality control employees, the store managers, the department managers, the FOOD MARTS 21 assistant grocery department manager, and all [Direction of Election and Excelsior footnote supervisors as defined in the Act. omitted from publication.8] 8 Although the Retail Clerks have not specifically requested to be construing their intervention in the Meat Cutters cases as such a request included on a ballot for a single three-store unit, we shall include them,