Retail Store Employees Union, Local 954

962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Store Employees Union , Local 954, AFL-CIO and Seaway Food Town, Inc. and Amalgamated Food & Allied Workers District Union 626, AFL- CIO. Case 8-CD-330 March 22, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Seaway Food Town, Inc., the Employer, alleging that Retail Store Employees Union, Local 954, AFL-CIO, herein Retail Clerks, violated Section 8(bX4XD) of the Act by engaging in certain proscribed activities with an object of forcing or requiring the Employer to assign certain work to employees represented by Retail Clerks rather than to employees represented by Amalgamated Food & Allied Workers District Union 626, AFL-CIO, herein Meat Cutters.' Pursuant to notice, a hearing was held before Hearing Officer Katherine Ballard on November 3, 4, and 10, 1976. All parties , including the Employer, Retail Clerks, and Meat Cutters, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine the witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by all parties? 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer is an Ohio corporation engaged in the retail grocery business. The Employer operates 47 super- markets in northwestern Ohio and southern Michi- gan. The parties further stipulated that the Employer At the time the instant dispute arose, the Employer had already assigned the work in dispute to employees represented by Retail Clerks. However, as set forth below, when Meat Cutters then sought to have the work reassigned to employees represented by it, Retail Clerks engaged in activity prompting the instant charge 2 The Employer also filed a motion to correct the record. Meat Cutters filed a motion in opposition to the Employer's motion, stating that its notes reflected the record to be correct as printed. In the absence of agreement as 228 NLRB No. 106 annually receives gross revenues in excess of $500,000 and, additionally, receives goods valued in excess of $50,000 directly from points located outside the State of Ohio. Accordingly, we find that the Employer is an employer within the meaning of Section 2(2) of the Act and that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Retail Clerks and Meat Cutters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts Retail Clerks represents all employees at the Employer's Fremont, Ohio, store, except meat de- partment employees who are represented by Meat Cutters. In 1975, the Employer decided to expand the operation of its Fremont store to include what it refers to as a deli/bake-off department.3 On Decem- ber 16, 1975, the Employer and Retail Clerks signed a letter of agreement amending their contract to provide for a delicatessen clerk rate. On May 24, 1976, Meat Cutters complained to the Employer that the letter of agreement with Retail Clerks, which had come to its attention, represented a violation of the Employer's contract with Meat Cutters. On July 13, 1976, Retail Clerks threatened to strike the Employer's store unless the work in dispute was assigned to clerks represented by it. Following this, the Employer filed the charge herein. The work has been assigned to and is being performed by employ- ees represented by Retail Clerks. B. Work in Dispute The work in dispute, as described in the notice of hearing (as amended herein) and as elicited in the record, consists of the preparation and sale in the deli/bake-off department of the Employer's Fremont supermarket of (1) baked goods such as doughnuts and bread; (2) meats such as bolognas, ham, pimento, and smoked sausage ; and (3) cheeses and salads. The deli/bake-off area includes a bakery showcase and gondola, a refrigerated case for salads , cheese items, to errors, if any, in the record, we shall accept the record in its present physical state. The motion to correct the record is hereby denied. 3 At the hearing, the Employer moved to amend the notice of hearing to reflect that the work in dispute consisted of deli/bake-off work rather than delicatessen work. The motion was opposed by Meat Cutters and was referred by the Hearing Officer to the Board for ruling. The motion is hereby granted as the term "deli/bake-off' describes more specifically the disputed work. RETAIL STORE EMPLOYEES UNION, LOCAL 954 luncheon meats, and an island display. Approximate- ly 65 percent of the sales in the deli/bake-off department consists of bakery goods. The remainder is comprised of 20 percent luncheon meats, 8 percent cheese items, and 7 percent salad items. The work involved in preparing and selling the above-described products includes operating equip- ment such as a slicer, wrapping machine, and oven; cleaning and sanitizing utensils and equipment; rotating merchandise as new items are put on display; mixing fillings, glazes, and other ingredients for cakes and doughnuts; preparing salads; unloading delivery trucks; and waiting on customers. The work in dispute is presently being performed by employees represented by Retail Clerks in an area of the store located near but distinctly separated by a 5-foot aisle from the meat department whose employ- ees are, as noted above, represented by Meat Cutters. C. Contentions of the Parties The Employer and Retail Clerks take the position that the work should be awarded in accordance with the Employer's assignment to employees represented by Retail Clerks . This, it is asserted, is consistent with a previous Board decision involving the same parties and similar circumstances ,4 and is allegedly consis- tent with the Employer's contractual obligation to Retail Clerks. The Employer further asserts that a consideration of other factors , including the skills involved, efficiency of operations, and area practice, also dictates an award to employees represented by Retail Clerks. Finally, the Employer contends that any award should apply to future deli/bake-off operations presently under construction or soon to be constructed. Meat Cutters contends that there exists a voluntary method of adjustment to which both Unions are bound,5 and that the Board should therefore not consider the merits of the dispute. It further contends that should the Board consider the merits of the dispute, the factors of skill and efficiency favor neither party while the factors of contractual obliga- tion and previous Employer practice favor an award to employees represented by Meat Cutters. Finally, Meat Cutters takes the position that any award should be limited to the Fremont store. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and 963 that there is no agreed-upon method for the voluntary settlement of the dispute. As stated, it is undisputed that Retail Clerks and Meat Cutters demanded the disputed work and that Retail Clerks threatened to strike in support of its demand. Based on the foregoing, and the record as a whole, we fmd that an object of the threat to strike by Retail Clerks was to force or require the Employer to assign or continue to assign the disputed work to employees represented by it. The record shows that the Employer is not a party to an agreed-upon method for the voluntary adjust- ment of jurisdictional disputes. We therefore further find that at the time of the instant dispute there did not exist any agreed-upon method for the voluntary adjustment of the dispute to which all parties herein were bound. Based on the above, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors. 1. Board certifications and collective- bargaining agreements There are no outstanding Board certifications covering the work in dispute. The Employer's current contract with Retail Clerks at the Fremont store recognizes it as bargaining agent for all the employees of the Employer except the store manager, co-manager, and meat department employ- ees. The Employer's current contract with Meat Cutters recognizes it as bargaining agent for all meat, fish, delicatessen, and prepared food employees. Prior to the earlier Seaway Food Town case referred to above, the parties' contracts contained recogni- tional language similar to the current contracts. Following that decision, however, wherein the Board clarified a Retail Clerks unit at the Employers' Sandusky, Ohio, store to include employees in the delicatessen department, the next Meat Cutters contract was changed to exclude from its jurisdiction the delicatessen department. Similarly, following that decision, Retail Clerks and the Employer negotiated a delicatessen clerk rate and included that language in their next contract. As noted above, however, the Employer discontin- ued all delicatessen operations in its supermarkets in 4 Seaway Food Town, Inc., 171 NLRB 729 (1968). 5 It is clear, however, that the Employer is not bound to any voluntary method of adj ustment. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1969. Following this, the later contracts were again changed by (1) dropping the language in Meat Cutters contract which referred to the store that had been the subject of the earlier unit clarification petition; and (2) dropping from Retail Clerks con- tract the language referring to a delicatessen clerk rate. There exists conflicting testimony regarding the intent of the parties in their most recent contracts with respect to which employees would be awarded delicatessen or deli/bake-off work if the Employer chose, as it has, to reestablish a delicatessen or deli/bake-off department. The Employer testified that it agreed with Retail Clerks to again establish a deli clerk classification should the need ever again arise .6 Meat Cutters contends, however, that its bargaining history with the Employer clearly guaran- tees the work in dispute to employees represented by Meat Cutters. We find that the language in the current contracts, when considered in light of the entire record, includ- ing previous contracts, the earlier Board decision, and testimony of the parties, does not favor an award to employees represented by either Union. 2. Employer and area practice Prior to 1969, the Employer had delicatessen operations in some of its stores , several of which were operated by employees represented by Meat Cutters and several of which were operated by employees represented by Retail Clerks. In May 1968, in the unit clarification proceeding referred to above,7 the Board decided that the delicatessen department therein constituted an accretion to the Retail Clerks unit. Thereafter, however, the Employer discontinued all its delicatessen operations for economic reasons until the instant deli/bake-off was opened in 1976. With respect to area practice, the record discloses that, of the 14 unionized supermarkets in the same marketing area as the Employer having deli/bake- offs, 100 percent assign their deli work to employees represented by Retail Clerks. Six organized super- markets in the Employer's marketing area have delicatessens, but not deli/bake-offs. Of these six, four assigned their deli clerk work to employees represented by Retail Clerks and two assigned that work to employees represented by Meat Cutters. Thus, of the 20 supermarkets in the Employer's marketing area which have deli/bake-offs or delica- tessens, 18 (or 90 percent) assigned their deli clerk work to employees represented by Retail Clerks. Based on a consideration of the above, the Employ- er's past practice, such as it is, does not favor an award to employees represented by either Union. Area practice, however, clearly favors an award to employees represented by Retail Clerks. 3. Employer preference The Employer has awarded the disputed work to employees represented by Retail Clerks and this factor favors an award to employees represented by Retail Clerks. 4. Efficiency and economy of operation The deli clerks represented by the Retail Clerks are frequently interchanged with clerks in the Employer's other departments who are also represented by Retail Clerks. This allows the Employer more flexibility than would be possible if the deli clerks were represented by Meat Cutters, since the Meat Cutters represents no employees outside of the meat depart- ment. Thus, the factors of efficiency and economy of operation favor an award of the work to employees represented by Retail Clerks. 5. Skills As set forth above, the disputed work consists of the preparation and sale of baked goods, delicatessen meats, cheeses, and salads in the Employer's deli/bake-off department. With respect to skills required in the deli department, it is clear that the deli clerks use some machinery that is also used in the meat department, such as a slicer and a hand-grinder. It is also clear, however, that the proper performance of the deli department duties described above does not require the extensive training needed by the meatcutters in the meat department.8 Also, much of the work involves the preparation and handling of baked goods, a task not presently performed by employees represented by Meat Cutters. Thus, while Meat Cutters contends, and we agree, that employees represented by Meat Cutters are equally as skilled to perform the work in dispute as are the employees represented by Retail Clerks, we also find that any greater skill is not necessary to perform the work in dispute. Based on the above, we find that required skills do not favor an award to employees represented by either Union. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that the Employer's deli clerks at its Fremont, Ohio, store, represented by Retail Clerks, are entitled to 6 As noted above such a rate was again agreed upon on December 16, 7 Seaway Food Town, Inc., supra. 1975. 8 The journeyman meat cutter must undergo a 2-year apprenticeship. RETAIL STORE EMPLOYEES UNION, LOCAL 954 perform the work in dispute. We conclude that the factors of employer preference, area practice, and efficiency and economy of operation favor this result. Our present determination to award the work to the Employer's employees who are represented by Retail Clerks, but not to that Union or its members, is limited to the controversy which gave rise to this proceeding. While the Employer seeks to include within the scope of this determination other stores in which it asserts it plans to add this particular operation in the future, we do not believe that the broad order requested by the Employer is appropriate at this time, in the absence of such operations being in existence and afflicted with the same issues determined here. DETERMINATION OF DISPUTE %5 Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees of Seaway Food Town, Inc., at its Fremont, Ohio, facility, who are currently represent- ed by Retail Store Employees Union, Local 954, AFL-CIO, are entitled to perform the deli/bake-off work, including preparation and sale of baked goods, meats, cheeses, and salads.