Big Way Super Market

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Waipahu Super Mart; Limited , d/b/a Big Way Super Market; Discount Markets, Inc., Discount Markets Waipahu, Inc., and Yokono-Shintaku, Inc.' and Re- tail Store Employees' Union, Local 480, AFL-CIO, Petitioner. Case 37-RC-2186 September 30, 1976 DECISION ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On February 25, 1976, the Regional Director for Region 20 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which she found appropriate a unit of all full-time and regular part-time employees at the Employer's several retail facilities on the Island of Oahu, Hawaii, excluding central operation employees, confidential employees, guards, watchmen, and supervisors as defined in the Act .2 Thereafter, the Employer filed a timely request for review, which the Board granted by telegraphic order dated March 23, 1976. No briefs have been filed on review. 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 au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review, and makes the following findings: Though technically operating four separate corpo- rations, as indicated in the caption, the Employer conducts a closely integrated operation consisting of three regular grocery stores ("Big Way"), three dis- count grocery stores ("Discount Markets"), a garden and pet shop, and a central operation. All are located within a 25-mile radius on the Island of Oahu, Ha- waii. There is a single chairman of the board for all four corporations, as well as identical directors; all four are run by a single executive management com- mittee, which consists of the same top officers plus six "coordinators." Each coordinator is in charge of a separate aspect of the Employer's business: meat, frozen foods, operations, grocery, produce, and non- foods. The coordinators "control" the operations of their various departments, including pricing, pur- chasing, and advertising. They visit each store ap- proximately 12 times per month. i The name of the Employer appears as amended at the hearing. 2 Petitioner originally sought to exclude meat department employees, jani- tors, central operation employees, and truckdnvers The Regional Director included the meat department employees and janitors in the retail stores, no As indicated, in addition to the three Big Way stores, the three Discount Markets, and the garden and pet shop, the Employer maintains a central oper- ation, which, despite its name, appears to be some- what decentralized. Meat central is in a building sep- arate from the retail stores, while fish central is physically a part of one of the discount markets. -Grocery and produce central are at.yet another loca- tion? Meat central employs a manager and a "super- visor," as well as a number of meatcutters and wrap- pers, drivers, and one apprentice. Fish central employs a "supervisor" together with a fishcutter and wrapper. Grocery central employs a "supervisor" and a number of clerks and janitors; produce central employs produce clerks. Though the work of the meat and fish central employees is directly super- vised by a meat central manager and a fish central supervisor, these supervisors report directly to the coordinators for their respective departments, who are, in addition, responsible for the same depart- ments in the various retail stores. The grocery and produce coordinators appear to participate directly in the supervision of the employees in their respective central departments, though there is also a grocery central supervisor. The stores themselves are run by individual store managers, who have the power to hire and fire, schedule, discipline, promote, select for layoffs, and recall employees working under their direction. Nonetheless, virtually all employee policies are uni- form companywide; they are the same at the retail stores as at the central operations. Labor relations policies are set simultaneously and uniformly by the same group of officers; i.e., the coordinators serving on the executive management committee. There is a common wage and wage increase schedule for all op- erations, common probationary period, common overtime policy, and uniform fringe benefits. In fact, the only difference appears to be in profit sharing, which by law must be maintained and calculated separately for each of the four corporations; howev- er, the same plan is in effect for each corporation. There is a standard dress code, though in practice employees at grocery central are allowed to wear street clothes. Cutters and wrappers at meat central wear the same smocks as are worn by employees in these classifications at the Big Way Markets. There is a single seniority roster for all the Employer's em- ployees. All applicants for employment apply to the same person, at the central office, and are given the same tests and screening before they are referred to that portion of the Employer's operation which request for review has been filed with respect to that finding. She apparently treated the truckdrivers as central operation employees and excluded them. 3 There is also a central office location, not here involved , located near the Waipahu Supermarket 226 NLRB No. 29 BIG WAY SUPER MARKET might need them, for further interviews and actual hiring. Employees at the Big Way Markets receive bulk deliveries of grocery and produce items, and meat in large carcasses ; they breakup the bulk deliveries of grocery and produce to--salable size, and meatcutters and wrappers and fishcutters of the Big Way Mar- kets cut and prepare these items for sale within the markets.4 On the other hand, the Discount Markets sell mainly prepackaged items, because of their lack of room and their desire to maintain a speedy check- out; thus, the breaking down of the bulk grocery and produce, and the cutting and wrapping of meat and fish, are done for the Discount Markets by the gro- cery and produce clerks and meatcutters and fishcut- ters and wrappers at the respective central opera- tions. The janitors at the various operations, both at the retail stores and the central operations, perform es- sentially the same jobs, in the same fashion. Though the record does not contain a great deal of information about the drivers, there appears to be one so employed on a regular basis by meat central, who carries meat back and forth between the central operation and the Big Way and Discount Markets. A similar driving function is performed by at least one of the produce clerks at produce central. Over the Employer's objection, and in conformity with Petitioner's request, the Regional Director ex- cluded the central employees from the unit found appropriate, on the basis that the central employees "do not have any contact with the public, do not engage in any selling activities and are not subject to a dress code." She found further that "they are sepa- rately located, under separate immediate supervision, have different skills and duties, and . . . there is little if any interchange or transfer between the central op- eration employees and the retail store employees." The Employer, in its request for review, contends that the Regional Director erred in excluding the central employees from the unit. It emphasizes the employees' common interests in wages, fringe bene- fits, and other conditions of employment; their simi- larity of skills and functions; integration of manage- ment; and, lastly, geographical proximity of the various locations operated by the Employer. We find merit in the Employer's position. The record reveals, as the Employer points out, that, except for the somewhat different application of the dress code to the central employees, all the Employer's employees are covered by a common per- sonnel policy, including wage and wage increase ° Much of this cutting and packaging for Big Way is done in the back- rooms of the Big Way stores. Fish preparation is apparently performed directly for customers at a service counter. 181 schedules, overtime policies, fringe benefits, proba- tionary periods, and the like. There is employerwide seniority. Even though the various corporations must calculate profit sharing separately, this distinction, such as it is, exists between employees in the various stores as well, since some are employed by one cor- poration and some by another. The various facilities of the Employer are not far apart geographically, and, as indicated,, fish central is actually a part of one of the stores. The few drivers attached to central op- erations regularly transport merchandise between the stores and the central facilities, giving them, it would appear, frequent contact with store employees. The skills of many of the employees at the central operations are identical to those of the employees included by the Regional Director in the unit. Thus, there are meatcutters and fishcutters and wrappers at meat and fish central, and meatcutters and wrappers at the Big Way stores. Similarly, there are stock clerks at the Big Way Markets who appear to do work virtually identical to the work done by the gro- cery and produce clerks at grocery and produce cen- tral. This is explained, as indicated, by the fact that many of the functions performed at the central oper- ations for the Discount Markets such as breaking down, cutting, and packaging are performed in the Big Way Markets themselves. For this reason, the Regional Director's observation that employees in the Employer's retail stores see members of the pub- lic, whereas those in the central operations do not, would not appear completely accurate, since, except for cashiers, employees at both locations do not regu- larly deal with the public. Lastly, we are persuaded by the centralized con- trol, in the area of labor relations, exercised by the coordinators of the various departments, over both central operations personnel and the employees in the same departments in the respective stores; their functioning as the Employer's Executive Manage- ment Committee has resulted in a common labor re- lations policy, applicable to employees of both the central operation and the various retail stores. We conclude that, on' the facts of this case as set forth above, all employees of the Employer possess a common community of interest, and that all should be included in the same bargaining unit.' We there- 5 See, e g., Sears, Roebuck & Co., 182 NLRB 777 (1970), and 191 NLRB 398 (1971),'where, on the facts of these particular cases, the Board found certain warehousing operations to be sufficiently integrated with the retail establishments that employees in the warehouses had to be included in any unit found appropriate We cannot agree with our dissenting colleague's position that the fact that central operations employees' "duties relate to the entire seven-store opera- tion of the Employer whereas the retail store employees operate on the local basis of each individual store" is sufficient to warrant their exclusion from the unit. While the Board has recognized a distinction between employees in the retail store industry who perform warehouse functions and those who Continued 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore find the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act:' All full-time and regular part-time employees employed by the Employer in its Discount Mar- kets, Big Way Super Markets, Big Way Garden and Pet Store, and central operations on the Is- land of Oahu, Hawaii, excluding confidential employees, guards, watchmen, and supervisors as defined in the Act. Accordingly, we shall remand the case to the Re- gional Director in order that she may conduct an election pursuant to her Decision and Direction of Election, as modified herein, except that the eligibili- ty payroll, period therefor shall be that immediately preceding the date of this Decision.' CHAIRMAN MURPHY, dissenting: I cannot agree with my colleagues' conclusion that the "central operation" employees must be included in the same unit with the retail store employees. Rather, I find that their reversal of the Regional Di- rector's exclusion of those employees is unwarranted, as the Employer raises no question of law or policy and the Regional Director's Decision is not clearly erroneous on any substantial factual issue which prejudicially affects the rights of any party. Nor is there any claim that there was any prejudicial error in the proceeding or any compelling reason for re- consideration of any Board rule or policy. Accord- ingly, the request for review did not show sufficient basis under Section 102.67(c) of our Rules and Regu- lations to justify the grant of review. On the merits, although my colleagues reject cer- tain minor factual findings of the Regional Director, her findings were not erroneous in any material re- spect. The relevant portions of the Regional Direc- tor's Decision are as follows: 2 Petitioner seeks a unit of full-time and regu- lar part-time grocery employees employed by the Employer in,its retail stores on the Island of Oahu, Hawaii; excluding central operation em- ployees, meat department employees, janitors, truck drivers, office clerical, confidential and perform other functions , such a factor as expressed by our dissenting col- league has never been one of the criteria used in determining the appropri- ateness of the inclusion or exclusion of warehouse employees in a multiloca- tbon retail store unit See A Harris & Co, 116 NLRB 1628 (1956) In truth, since the parties do not dispute the appropriateness of a unit of all seven stores, the facts cited by the dissent would seem to support the majority position 6 The record is not altogether clear as to the numbers of employees in- volved The Employer employs a total of 330 individuals in all its opera- tions, including supervisors, of these, it would appear that approximately 30 are in central operations. 7 [Excelsior footnote omitted from publication I professional employees, guards, watchmen and supervisors. In its brief the Employer took the position that an employerwide unit is the small- est appropriate unit. The Employer is comprised of four closely integrated corporations sharing the same presi- dent, board chairman, executive vice president, and directors. Its executive management com- mittee formulates labor relations policies and di- rects purchasing, advertising, and merchandis- ing for all four corporations. The Employer owns and operates seven retail stores (three Big Way Super Markets, three Discount Markets and a Big Way Garden and Pet Store adjacent to one of its markets) and a central operation which receives, processes, stores, and distributes merchandise to the retail stores. The Employer's executive vice president, controller, operations coordinator, and its finance, accounting, and bookkeeping employees work at the Employer's central offices, which are located in a separate building near its Waipahu supermarket. All of the Employer's operations are located on the leeward side of the Island of Oahu within a ra- dius of 25 miles from its central offices. ` The employees at all seven stores and the cen- tral operation enjoy similar wages, hours, work- ing conditions, and fringe benefits. All are sub- ject to a standard overtime policy and a standard probationary period. The Employer's controller tests and interviews all applicants and refers satisfactory applicants to the store manag- ers for final interview and selection, When there is a vacancy in a supervisory position at one of the stores or in the central operation, a supervi- sory selection committee ,considers, among others, the persons recommended by store man- agers before conducting interviews, and making a selection. Although the employees of - the Employer's seven retail stores work under sepa- rate immediate supervision, it is clear that they work in similar facilities, have similar skills, du- ties, and interests in addition to the same or sim- ilar wage scales, hours, working conditions, and fringe benefits. Further, the operation of all sev- en stores is highly centralized and there is a lim- ited degree of autonomy exercised! by the indi- vidual store managers. Moreover, the stores are located in relatively close geographical proximi- ty, there is no history of collective bargaining with respect to the store employees, and no la- bor organization is seeking to represent them in separate store units. Accordingly, and based on the record as a whole, it is concluded that the retail store employees share a sufficient commu- BIG WAY SUPER MARKET 183 nity of interest to warrant their inclusion in a single unit. As the meat department employees and jani- tor(s) at the retail stores have the same supervi- sion, similar wages, hours, and working condi- tions, and frequent daily contact with other retail store employees, they are-included in the unit. 3 The Employer's central operation is in effect - a warehouse- operation including meat central, fish central, grocery central, and produce central facilities. Meat central is in_a building separate from the retail stores, while fish central is physi- cally attached to one of the discount markets; grocery and produce central are at other loca- tions. Meat central procures, stores, processes, cuts, wraps, and distributes meat products to the retail markets. The discount markets receive meat products packaged and priced ready for sale, but the supermarkets receive meat in car- cass form, which is -then cut, wrapped, and priced at the supermarkets for sale. Fish central purchases, processes, cuts, wraps, and delivers fish products to the discount markets and pro- cures and delivers whole fish to the supermar- kets. Grocery central employs about 16 clerks who receive and unload shipments of groceries and prepare, load, and deliver orders to the re- tail stores. Produce central has two clerks who receive merchandise and prepare, pack, and de- liver it to the retail stores. The deliveries are made by truckdrivers and other employees of the various central operations to all of the Em- ployer's retail stores. It is clear that the central operation employees, unlike: the employees in the seven retail stores, do not have any contact with the public, do not engage in any selling ac- tivities, and are not subject to a dress code. They are separately located, under separate immedi- ate supervision, have different skills and duties; and the record reflects that there is little if any interchange or transfer between the central op- eration employees and the retail store employ- ees. In view of these factors, particularly the ab- sence of contact and interchange between the two groups, and based on the record as a whole, it is concluded that the central operation em- ployees lack a sufficient community of interest to be represented with the retail store employees. Accordingly, the central operation employees are excluded from the unit found appropriate herein. Thus, as set forth by her and by my colleagues, it is clear that the central operation employees have sepa- rate immediate supervision, are separately located for the most part, and have little or no interchange or transfer with retail store employees. These employees thus meet the test set forth in A. Harris & Co., 116 NLRB 1628, 1632 (1-956), for exclusion from an over- all unit of retail store employees. Furthermore, their place in the Employer's administrative setup per- suades me that their interests are sufficiently differ- ent to warrant their exclusion, for their duties relate to the entire seven-store operation of the Employer, whereas the retail store employees operate on the lo- cal basis of each individual store. Under these cir- cumstances, is is, irrelevant that they may exercise some of the same skills as certain of the retail store employees.' The Board has long held that a'unit sought by a petitioning labor organization need not be the most appropriate unit, that it is sufficient if the unit peti- tioned for is an appropriate unit.' Therefore, even if an employerwide unit of all this Employer's employ- ees may be the optimum unit, it is not the only ap- propriate unit in the circumstances here, and I would affirm the Regional Director's exclusion of the cen- tral operation employees from the unit found appro- priate herein. 8 Cf Chrysler Corporation (Mo=Par Building), 134 NLRB 454 (1961) 9 See, e.g, Cumberland Farms, Inc, 167 NLRB 593, fn 5 at 594 (1967)