Save Mart Of Modesto, Inc.

1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Save Mart of Modesto, Inc. and United Food and Commercial Workers Union, Butchers Local 126, AFL-CIO. Case 32-CA-6335 May 22, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 21, 1984, Administrative Law Judge Clifford H. Anderson issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel and the Charging Party each filed limited cross-exceptions and briefs in support of their limited cross-excep- tions and in support of the judge's decision. On September 29, 1987, the National Labor Re- lations Board issued an order remanding the pro- ceeding to the judge for the limited purpose of pre- paring a supplemental decision containing specific findings of fact, and conclusions and recommenda- tions in light of such findings, concerning the day- to-day supervision of the meat department at the Respondent's Chowchilla store, and findings of fact, conclusions of law, credibility resolutions, and recommendations whether the Respondent was ob- ligated to recognize the Union at the Chowchilla store under the union recognition clause in the col- lective-bargaining agreement between the Respond- ent and the Union.' The judge issued the attached supplemental deci- sion on November 12, 1987. Subsequently, the Re- spondent filed exceptions to the supplemental deci- sion and a supporting brief, and the General Coun- sel filed cross-exceptions and a brief in support of cross-exceptions. The Charging Party filed cross- exceptions and a brief in support of cross-excep- tions and answering brief. The Respondent then filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decisions and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and i The Board directed that such findings should include a resolution of whether the General Counsel had established majority status among the meat department employees at the Chowchilla facility. 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In sec III,C,3, of his original decision the judge erroneously states that the Board's decision in Yaohan of California, 252 NLRB 309 (1980), and Ashcraft's Market, 246 NLRB 471 (1979), "in part turned on the fact that the employers operated their meat departments using employees who did conclusions3 only to the extent consistent with this Decision and Order. The Respondent operates a chain of some 40 stores, approximately 20 of which are in the "southern division." In November 1983, the Re- spondent opened a new store in Chowchilla in the southern division, The Chowchilla store, like the Respondent's other stores, is divided into three de- partments-grocery, produce, and meat. Each of the three departments is headed by an in-store man- ager. Three persons are employed in the meat de- partment-the meat manager, Zimmer, and two journeyman meatcutters, Sharp and Pool. All three were transferred from other stores in the Respond- ent's chain shortly before the Chowchilla store opened. The Union has a contract, which covers "all employees covered by this Agreement working in the retail markets of the Employer in Fresno, Tulare, Kings, Madera, Merced Counties and vicin- ity under the jurisdiction of the United Food and Commercial Workers Union, Butchers' Local 126." Before the judge, the General Counsel advanced two distinct theories for finding that the Respond- ent acted unlawfully by refusing to recognize the Union as representative of the Chowchilla meat de- partment employees and refusing to apply the bar- gaining agreement to them. The first theory was that those employees constituted an accretion to an existing multifacility unit of meat department em- ployees. The second was that the same employees had become part of the existing unit by operation of a valid "after-acquired stores clause" in the par- ties' bargaining agreement. In his original decision, the judge found that the Chowchilla employees were an accretion to the existing multifacility unit and therefore concluded that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize the Union as the exclu- sive bargaining representative of meat department employees employed by the Employer at its newly opened Chowchilla, California store and by failing and refusing to apply the existing collective-bar- gaining agreement between itself and the Union to the same employees. Because he found that the Re- spondent violated the Act under the accretion engage in the extensive cutting of meat traditionally undertaken by meat- cutters " Rather, the Board 's decisions in the two cited cases turned partly on the fact that the meat department employees involved did not engage in the extensive cutting of meat traditionally undertaken by meat- cutters This error does not affect our decision ' The Charging Party has excepted to the judge's refusal to defer the present case to arbitration We agree with the judge that deferral is inap- propriate The arbitration proceeding involved a different facility and the issues presented involve not only contract application and interpretation, but also entirely separate representational questions of unit determination and accretion , which are best resolved through the Board's processes Compare United Technologies Corp, 268 NLRB 557 (1984) 293 NLRB No. 135 SAVE MART OF MODESTO 1191 theory, the judge made no finding with respect to the "after-acquired stores clause" theory. Following our remand of the case, the judge issued a supplemental decision in which he clarified his earlier factual findings, but again found the meat department employees to constitute an accre- tion to the existing unit. Accordingly, in his supple- mental decision the judge concluded that the Re- spondent violated Section 8(a)(5) and (1) by failing to recognize the Union as the representative of the Chowchilla meat department employees. The judge further considered whether the recognition clause of the relevant collective-bargaining agreement constituted a valid "after-acquired stores clause," which obligated the Respondent to recognize the Union as the representative of its meat department employees at its new Chowchilla store. The judge found that the recognition clause was a valid after- acquired stores clause, but that the Respondent was not obligated to bargain with the Union at the Chowchilla store based on that clause because the Union failed to establish that it represented a ma- jority of the Chowchilla meat department employ- ees at the time it made its demand for recognition.4 Although we agree with the judge that no bargain- ing obligation could have arisen pursuant to the contract recognition clause,-5 we disagree with the judge's conclusion that such an obligation arises under an accretion theory. Accordingly, we shall dismiss the complaint in its entirety. As to the accretion issue, a new employee group will be found to be accreted to an existing collec- tive-bargaining unit, obligating the employer to bargain with respect to the employees in the new group without an election, if the new employee group shares a sufficient community of interest with the employees in the existing unit and if the new employee group does not itself constitute a separate bargaining unit.6 Thus, as the judge cor- rectly pointed out, if the new group either may stand as a separate appropriate unit or may appro- priately belong to some unit other than the one into which accretion is sought, the Board will not find accretion. In his original decision, the judge discussed the structure and operation of the Respondent's super- market chain in some detail. We emphasize here those factors noted by the judge or established by uncontroverted record evidence, which we regard as essential to our determination of the accretion issue. 4 See Kroger Co, 219 NLRB 388 (1975) 5 Because we agree with the judge that the Union did not provide the Respondent with concrete evidence that a majority of the unit employees desired representation, we find it unnecessary to determine whether the parties' contract contained an after-acquired stores clause 6 See Melbet Jewelry Co, 180 NLRB 107 (1969). The Chowchilla meat department employees do not work in other areas of the store, nor do other employees in the store work in the meat depart- ment. However, all employees at the Chowchilla store share common facilities; have identical bene- fits and similar wages ; are subject to the overall di- rection of the store manager; have regular work contacts with each other; wear similar uniforms; and are subject to the same disciplinary and other personnel procedures. The Chowchilla meatcutters cut, wrap, and price various meat and related prod- ucts and place them on shelves and in refrigerated cases for sale. They do not cut sides or quarters of meat, but slice "boxed" meat that has been cut into "primal" or "subprimal" cuts before being deliv- ered to the store. Although the cutting of "boxed beef" and other pre-cut meats into pieces appropri- ate for sale to consumers requires some specialized skill and equipment, it does not require the sophisti- cated butcher skills traditionally used by meatcut- ters to cut sides or quarters of meat into "primals" or "subprimals." Significantly, approximately 70 percent of the product sold by the meat depart- ment arrives at the store cut and wrapped for sale to the public and the Chowchilla meatcutters make no cuts on these items at all. Chowchilla Meat Manager Zimmer schedules the hours of work for himself and the meatcutters. He may assign them overtime and grant them time off. His other re- sponsibilities include ordering meat and related products as needed from the Respondent's central warehouse; marking down the prices of items that are nearly out of date; and generally seeing that meat products are cut, wrapped, and displayed properly. He participates in weekly management meetings with the store manager and the grocery and produce managers and takes part, with the other managers, in regular inspections of the entire store. Chowchilla Store Manager Wall has interviewed and either hired or effectively recommended the hire of some new employees. However, he has not performed this function with respect to meat de- partment employees, all of whom were transferred from other stores. Wall has responsibility for over- seeing daily personnel and operational matters, in- cluding employee discipline and store efficiency. Regarding discipline, he has implemented the Re- spondent's progressive discipline system. He also has implemented his own addition to that system whereby employees may be given a written warn- ing which, unlike the written warnings provided for in the Respondent's system, is not placed in the employee's personnel file at corporate headquarters but remains in the store's office. Meat department employees are subject to both the corporate disci- 1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pline system and Wall's addition to it, but none has been disciplined since the store opened. Wall re- solves employee complaints at the store level. He has veto power, which he has exercised, over regu- larly scheduled employee raises. Wall has regular, but not daily, contact with corporate officials and has effectively recommended an expansion in the store's hours of operation. The Chowchilla store is located about 15 miles from each of the two near- est stores owned and operated by the Respondent, one of which, like the Chowchilla store, is in the Respondent's southern division, and the other of which is in the northern division. The Respondent's divisional structure mirrors that of the individual stores, in that there are divi- sional managers (called supervisors) with responsi- bility for grocery, produce, and meat, respectively. These corporate officials oversee operations in their areas of responsibility for all stores in the di- vision. The "meat supervisor" for the southern di- vision, Levesque, regularly visits each of the ap- proximately 20 stores in the division. The total dis- tance involved in making a circuit of all the stores is about 300 miles. In addition to store visits, Levesque maintains telephone contact with the stores on a regular basis. It was Levesque who made the decision to transfer the three Chowchilla meat department persons to that store. The Respondent has centralized warehousing and distribution, advertising, accounting, payroll, and other functions. Store layout, including layout of the meat area, is largely standardized and deter- mined by corporate officials rather than by store managers or in-store department managers. Wages and benefits are standardized respectively for em- ployees at represented stores and employees at un- represented stores. Wages and benefits provided to the employees at the unrepresented stores approxi- mate those provided, pursuant to the bargaining agreement, to the employees at the represented stores.7 Personnel records are kept both in the indi- vidual stores and in corporate offices. In some cases, employees are hired by store managers, while in other cases employees are hired by corpo- rate officials. The Respondent has established pro- cedures for both permanent and temporary transfer of employees from one store to another. Several employees have been transferred into or out of the Chowchilla store since it opened. None of these were meat department employees. In concluding that the meat department employ- ees were an accretion to the existing multifacility unit, the judge, in his original decision, discredited the Respondent's witnesses' substantially uncontro- verted testimony regarding the extent of self-suffi- ciency and self-supervision of the Chowchilla store. Specifically, the judge discredited the testimony of the Respondent's witnesses concerning the nature and frequency of Division Meat Supervisor Leves- que's contacts with the store. Even accepting these credibility resolutions, we noted in our remand that the judge failed to make specific affirmative find- ings, in the absence of the discredited testimony, concerning the day-to-day supervision of the meat department. For example, while the judge may have been correct in postulating that the Respond- ent's witnesses' testimony to the effect that Leves- que visited the Chowchilla store only "fortnightly" was a shading of the facts, he made no alternative finding as to how frequently Levesque did visit the store. Accordingly, as noted above, we remanded the case to the judge and directed him to make specific findings of fact, and conclusions and rec- ommendations in light of such findings, concerning the day-to-day supervision of the meat department at the Respondent's Chowchilla store. In his supplemental decision, the judge found that even crediting Levesque's testimony vis-a-vis the amount of time he spent visiting stores in a light most favorable to the Charging Party, "the Chowchilla meat department would not receive an amount of Levesque's time necessary to undermine a finding that day-to-day supervision resided with Chowchilla meat department manager Zimmer."8 The judge based his conclusion that accretion nonetheless should be found on his determination "that the store meat departments including Chow- chilla, are closely supervised by and oriented to the divisional meat supervisory structure rather than to a store system of supervision." The judge found that store supervision, "while day-to-day in a tem- poral and geographical sense," was "substantially lacking in extent and independence." Consequently, he found that effective supervision resided with Levesque at the divisional level. The bases on which the judge rested his finding that the Chowchilla meat department employees shared a sufficient community of interest with the meat department employees and could only appro- priately belong to a unit consisting of employees in the Respondent's other stores include the central- ized control exercised by the Respondent over var- ious functions of the individual stores, particularly the meat departments, and the existence of proce- dures for employee interchange among stores. al- 9 Although the judge concluded that Levesque was a "hands-on super- visor" who kept control over the meat department, the judge found that Levesque's visits, though perhaps more frequent than fortnightly, were r For example, wage scales for employees in the same classifications in not sufficient to undermine the store manager's control of daily oper- represented and unrepresented stores are identical ations SAVE MART OF MODESTO 1193 though the Respondent does exercise centralized control over the stores in many respects, it is equally clear that store managers and the in-store department heads who report to them have consid- erable autonomy with respect to the day-to-day op- erations of the stores. Thus, the record establishes that the in-store supervisory staff at the Chowchilla store have authority among other things to hire or effectively recommend hire; discipline and dis- charge employees; schedule regular hours and overtime; grant time off; effectively recommend employee raises; responsibly assign work within the store; monitor store efficiency and employee pro- ductivity; and resolve minor grievances and com- plaints. Further, it is apparent, given the large number of stores in the chain (or in the southern division), the distances involved, and the relatively few corporate personnel assigned to oversee oper- ations, that it would be impracticable for the Re- spondent to run the day-to-day operations of the individual stores from its headquarters. In this regard, we place more significance than did the judge on his finding that the conclusion is inescap- able that Levesque's visits, though perhaps more frequent than fortnightly, were not sufficient to un- dermine the store manager's control of daily oper- ations. In addition, the record demonstrates that al- though the Respondent has procedures for inter- store employee interchange, these procedures have seldom been utilized with respect to the Chow- chilla store, and have not been utilized with respect to meat department employees in that store except for original staffing. Moreover, the fact, relied on by the judge, that the transferred employees made their requests to transfer through Levesque is similarly unpersua- sive. Regardless of the extent of a community of interest among those employees and other employ- ees either at the Chowchilla store or at the Re- spondent's other stores, the handling of requests to transfer among stores would seem to be a function that could be carried out effectively only through some type of centralized procedure because it obvi- ously affects more than a single store. Regarding the testimony of a meatcutter that Levesque was his "supervisor," we note that Levesque's title was "supervisor." (By contrast, the title of the in-store head of the meat department was "manager.") It therefore appears likely that when the employee re- ferred to Levesque as his supervisor, he was making reference to Levesque's title, rather than commenting on whom he regarded as the person with immediate authority over his work. The judge further stated that in finding meat de- partment employees to be an accretion to the exist- ing meatcutters' unit, he was influenced by the Board's decisions in Sol's, 272 NLRB 621 (1984), and VI.M. Jeans, 271 NLRB 1408 (1984),"9 in which the Board found single location retail units to be inappropriate. We find Sol's and V LM, read- ily distinguishable. First, and most importantly, both cited cases involved a question of the appro- priateness of a wall-to-wall unit. In the instant case, by contrast, the issue is whether a multilocation unit of employees engaged in a single function is the only appropriate unit. Second, in both Sol's and V.I.M. the Board found that the well-established presumption of the appropriatness of a single facili- ty unit was rebutted by factors including daily con- tact between central office personnel and the retail facilities. Moreover, Sol's and V.I.M. each involved many fewer facilities and much shorter distances between facilities than are involved in the present case. Finally, in finding that the Chowchilla meatcut- ters lacked a sufficient community of interest with other employees at the Chowchilla store to consti- tute an appropriate unit with them, the judge noted their specialized skills and higher pay, and attempt- ed to distinguish cases such as Yaohan of California, supra, and Ashcraft's Market, supra, in which the Board found separate units of meatcutters in gro- cery stores to be inappropriate. We note, however, that in both Yaohan and Ashcraft's a key factor in the Board's determination that the meatcutters lacked a sufficiently separate community of interest to constitute a separate bargaining unit was the fact that they did not use the highly specialized skills required traditionally of meatcutters, but instead worked on "boxed" meat.1 ° As noted above, the meatcutters involved here also do not use the tradi- tional skills required to cut carcass meat. Indeed, the Chowchilla store does not have the hooks and other equipment required to perform that work. There is no evidence that the Chowchilla meatcut- ters use skills any more sophisticated than those used by the meatcutting employees involved in Yaohan and Ashcraft's. Based on the above, we do not agree with the judge that the only bargaining unit to which the meatcutters employed at the Respondent's Chow- chilla store may belong is the multifacility unit of meat department employees. This is true both be- cause the employees in question share a substantial community of interest with the other employees in the Chowchilla store and because the presumption e The judge erroneously cited "V..1. Jeans as Nakash, Inc, a Subsidi- ary of Famous Sports Inc d/b/a VIP Jeans, 271 NLRB No 23 (Aug 31, 1984) " The correct full title and citation is VIM Jeans, 271 NLRB 1408 (1984) 1s See also Great Day, Inc, 248 NLRB 527 (1980), Hall's Super Duper, 281 NLRB 1116 (1986) 1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that a single location unit is appropriate has not been rebutted. Thus, the record demonstrates that the Chowchilla meatcutters do not use the skills that traditionally justified separate craft unit status, i i and do share common facilities, benefits, supervision, disciplinary system, work contacts, personnel policies and procedures, and other condi- tions of employment with the other employees at the Chowchilla store. The record also demonstrates that despite the centralized nature of many of the Respondent's functions, the day-to-day operations of the store are largely under the control of the store's' supervisory staff rather than corporate head- quarters personnel, and that there is little inter- change between the employees at the Chowchilla store, particularly the meat department personnel, and employees assigned to other stores operated by the Respondent.12 We are not presented with the question-and do not decide-precisely to which unit or units the Chowchilla meat department em- ployees may properly belong. Rather, in determin- ing that they have not been accreted into the exist- ing multilocation unit of meat department employ- ees, we merely find that it is not the only appropri- ate bargaining unit to which these employees may belong. We find, accordingly, that no accretion has occurred. In sum, we find that the meat department em- ployees at the Respondent's Chowchilla store did not become part of the existing multifacility bar- gaining unit of meat department employees either by accretion or by operation of an after-acquired stores clause.13 We therefore conclude that the Re- spondent did not violate Section 8(a)(5) and (1) of the Act by failing and refusing to recognize the Union as bargaining representative of the Chow- chilla employees or by failing and refusing to extend the bargaining agreement to cover those employees. 14 11 See, e g, Buehler's Food Markets, 232 NLRB 785 (1977), R-N Market, 190 NLRB 292 (1971) 11 Compare, e g , Sol's, supra, in which the Board found only a multi- location retail unit to be appropriate based, inter aha, on frequent em- ployee interchange and daily contact between the central office and the retail stores 13 In addition to its other contentions, noted above, the Charging Party in its exceptions argues that the Respondent was obligated to bar- gain with it as representative of the Chowchilla store meat department employees because the opening of that store constituted a relocation of the Respondent's operations Contrary to the Charging Party's argument, it is clear that the opening of the Chowchilla store was not a relocation In this regard , we emphasize that although the Respondent transferred meat department employees to the new Chowchilla facility from other facilities, the transfer did not involve the shutdown of an existing meat department and its reestablishment at the Chowchilla facility Cf Hahn Motors, 283 NLRB 901 (1987), in which the Board found that a reloca- tion of part of the bargaining unit occurred when the respondent in that case shut down its service department and reestablished it at a facility 7 miles away 14 In view of our dismissal of the complaint, we find it unnecessary to pass on the issues of whether Chowchilla Meat Department Manager ORDER The complaint is dismissed. Zimmer was a supervisor within the meaning of Sec . 2(11) of the Act and whether the Respondent 's in-store meat department managers (or "head meat cutters" as they are referred to in other stores ) are properly included in an appropriate bargaining unit. We deny the Respondent's request for attorney 's fees as lacking in merit. Ariel Sotolongo, Esq., for the General Counsel. Henry F. Telfeian, Esq. (McLaughlin & Irvin), of San Francisco, California, for the Respondent. David A. Rosenfeld, Esq. (Van Bourg, Allen, Weinberg & Roger), of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard this case in trial on July 24-26, 1984, in Fresno, California, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 32 of the Na- tional Labor Relations Board on March 30, 1984, based on a charge filed by United Food and Commercial Workers Union, Butchers Local 126, AFL-CIO (the Charging Party or the Union) against Save Mart of Mo- desto, Inc. (Respondent or the Employer) on March 15, 1984. The complaint alleges that Respondent at all times since November 1983 has been obligated to recognize and bargain with the Charging Party as representative of certain employees at Respondent's Chowchilla store and to apply an existing collective-bargaining agreement to that store and further alleges that Respondent's refusal to do so constitutes a violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The answer admits that Respondent has refused to recognize and bar- gain with the Charging Party as representative of its Chowchilla employees but avers that Respondent has at no time been under an obligation to recognize the Union and therefore has not in any way violated the Act. All parties were given full opportunity to participate at the hearing, to introduce relevant evidence, to call, ex- amine, and cross-examine witnesses, to argue orally, and to file posthearing briefs. On the entire record,' including scholarly postheanng briefs from the General Counsel, Respondent, and the Charging Party, and from my observation of the wit- nesses and their demeanor, I make the following 1 On December 14, 1984, the Union filed a motion to defer to arbitra- tion and/or to supplement the record The motion to defer is denied inas- much as the unit issues here are for Board determination I shall receive the December 6, 1984 decision of Arbitrator Letter into the record con- sistent with my rulings at the hearing concerning the limited use of such evidence SAVE MART OF MODESTO 1195 FINDINGS OF FACT 1. JURISDICTION At all material times Respondent has been a California corporation with its main office and place of business in Modesto, California. It is engaged in the operation of a chain of retail markets in the central California area. In the course and conduct of its business operations Re- spondent has annually sold and provided services valued in excess of $500,000 and has purchased and received goods and services valued in excess of $5000 that origi- nated outside the State of California. At all times material, Food Employers Council, Inc. (the Association) has been an organization consisting of employers engaged in the operation of retail supermar- kets, existing for the purpose, inter alia, of representing its employer-members in negotiating and administering collective-bargaining agreements with the Charging Party. At all times material, Respondent has been an em- ployer-member of the Association and has authorized the Association to bargain collectively on its behalf with the Charging Party concerning wages, hours, and other terms and conditions of certain of its employees. these stores were part of a contractual single multiem- ployer meatcutters unit between the Union and the Asso- ciation.4 The current collective-bargaining agreement between the Association and the Charging Party is in effect by its terms from January 13, 1983, into 1986. The current con- tract, and all previous collective-bargaining agreements between the parties entending back at least into the 1950's, contains the following language: Article II A. Union Recognition Section (a) The Employer recognizes the Union as the exclusive bargaining agent for all employees covered by this Agreement working in the retail markets of the Employer in Fresno, Tulare, Kings, Madera, Merced Counties and vicinity under the ju- risdiction of the United Food and Commercial Workers Union, Butchers' Local 126.5 The current contract also contains the following lan- guage: II. LABOR ORGANIZATION The Charging Party is now, and has been at all times material, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A, Background and Simple Chronology 1. Respondent's operations Respondent opeates a chain of grocery stores or super- markets in the Central Valley of California. Starting from a single store many years ago, Respondent's chain grew by both the acquisition of existing grocery stores and by the opening of new stores. The Charging Party has for many years represented meatcutters and butcher workmen in the Central Valley. It has had a longstand- ing collective-bargaining relationship with Respondent. The Charging Party represented the meatcutters and butcher workmen at Respondent's original store. There- after, as Respondent acquired or opened new stores within the Charging Party's jurisdictional area, the then current collective-bargaining agreement was automatical- ly applied to the new or acquired facility without request or discussion.2 Thus, over the years through early 1983, Respondent had without exception recognized the Charging Party as representative of its meatcutter em- ployees within the Union's territorial jurisdiction.3 All 2 The previous owners of the acquired stores in each case had previ- ously recognized the Charging Party as representative of their meatcutter employees With respect to those acquired stores Respondent generally retained a majority of the former employer's meatcutter employees. In staffing new stores Respondent, although not without exception, trans- ferred meatcutter employees from other represented stores into new fa- cilities of sufficient number to constitute a majority of the meatcutter complement at each new store S The Union-Association agreements cover approximately 70 to 80 fa- cilities Article XII Section (i) An employee who wishes to be trans- ferred to store locations near his or her home shall so notify the Company in writing indicating the particular area and store in question. When perma- nent vacancies arise in that store for which the em- ployee is qualified, the Employer will give full con- sideration to transferring him or her before filling the vacancy. If his or her transfer takes him or her across local union jurisdictional lines, his or her se- niority rights shall be set forth in Article XIV(g). Once a person has effected his transfer pursuant to this paragraph, future request will not be honored for a two (2) year period. Respondent's grocery stores are organized into two di- visions. The northern division includes those facilities lo- cated approximately north of the community of Chow- chilla, California, and the southern division, which in- cludes the Chowchilla facility (sometimes the store), con- tains approximately 20 stores.6 In addition to higher management positions, each division is supervised by a divisional supervisor for each of the three general prod- uct areas: meat, produce, and grocery. The southern di- vision meat department supervisor at relevant time was Earl F. Levesque. As a general proposition Respondent, like retail chain store operations, has centralized control of many func- tions, maintains uniform personnel policies, and controls 4 In 1983 the Chowchilla facility, the only facility in dispute in the in- stant case, and the Hanford , Exeter, and Lindsay stores were opened In each of these facilities the issue of Respondent's obligation to recognize the Union is in dispute 5 The unit description plead in the complaint and admitted in the answer converts this adoptive language to normal Board unit description parlance 6 The southern division stores employ approximately 60 employees covered by the Union-Association agreement 1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD administrative matters either on a corporate or a divi- sional basis. Respondent also seeks to maintain a general uniformity of operations at its various facilities.' Each individual store is headed by a store manager, also referred to as a store director. The Chowchilla store manager is Ricky Wall. Under the store manager are store department managers in the three product areas: produce, meat," and grocery. These store department managers have certain reporting responsibilities to both their store manager and to their respective divisional su- pervisors. The Chowchilla store, in addition to the store manager and store department managers, employs 2 employees in the produce department, 2 employees in the meat depart- ment, and approximately 20 employees in the grocery department. The meat department manager, from the in- ception of the store's operations in 1983 to the time of the hearing, was Matthew Zimmer, who had previously been a head meatcutter. The two other employees in the meat department were, like Zimmer, experienced jour- neyman meatcutters, transferred to the store from other of Respondent's facilities. They are Michael Sharp and Perry Pool. Insofar as the record reflects the Chowchilla facility is essentially identical in its organizational structure and su- pervisorial responsibilities to Respondent's other facilities including those covered by the Association-Union collec- tive-bargaining agreement. Thus, uncontradicted testimo- ny was received that the duties and responsibilities of head meatcutters in the represented facilities are identical to the duties and responsibilities of the meat department supervisor at the Chowchilla facility. The wages at the Chowchilla facility are identical to those in the repre- sented facilities save for a "rounding off" of rates to the nearest penny. Although employees at the Chowchilla facility do not receive contractual fringe benefits, they receive not dissimilar Respondent-selected fringe bene- fits The Chowchilla store is located between two other stores, one in Madera and one in Merced, each approxi- mately 15 miles distant. The recognized facilities' meat department employees have areawide seniority. This seniority system has his- torically produced substantial employee transfer between and among the represented facilities. Respondent also maintains a staff of "floating" meatcutter employees who are assigned to various facilities for brief periods as nec- essary to meet changing staffing needs. The assignment of such "floaters" as well as the determination or ap- proval of interstore transfers is determined by the divi- sion meat supervisor or his immediate divisional staff. 2. Simple chronology The Chowchilla facility opened to the public on No- vember 30, 1983. On the day before the Union by wire demanded that Respondent recognize it and apply the then current bargaining agreement to the Chowchilla store "in the same manner that the Union demanded that it be applied to the Hanford and Exeter stores." Re- spondent rejected the Union's demand for recognition. On February 27 and March 28, 1984, Respondent filed unit clarification petitions with Region 32 of the National Labor Relations Board.9 The unit clarification petitions filed by Respondent sought to clarify the contractual unit of "all employees employed in the meat department of the Company's retail markets in merced, Madera, Fresno, Kings, Tulare Counties" into a proposed unit of "employees working in the meat department of the Com- pany's retail market in Chowchilla, California." On April 24, 1984, the Regional Director dismissed Respondent's unit clarification petition, Case 32-UC-115, by letter that stated in part: Following and [sic] administrative investigation of the above-captioned petition, I have concluded that further proceedings are not warranted at this time. The investigation revealed that since approxi- mately November 1983, a majority of the unit em- ployees at the Employer's Chowchilla facility have designated United Food and Commercial Workers Union, Local 126 as their collective-bargaining rep- resentative. Further, it appears that even though Local 126 made a lawful demand for recognition, pursuant to its labor agreement with the Employer, the Employer has failed and refused to do so in vio- lation of Sections 8(a)(1) and (5) of the National Labor Relations Act. This action is subject to the complaint issued by the undersigned in Case 32- CA-6355. Since the unit determination issue that is the sub- ject of the instant petition is also encompassed by the pending unfair labor practice proceeding now set for hearing before an Administrative Law Judge, further proceedings in this matter are inap- propriate and I am, therefore, dismissing the peti- tion. However, it should be noted that such action is without prejudice to the Employer's position, since there is no time bar to the following unit clari- fication petition and the Employer may refile this petition at any time subsequent to the issuance of the Board's decision in the pending unfair labor practice case, if warranted. Respondent did not appeal the Regional Director's dis- missal in Case 32-UC-115.10 B. Position of the Parties The primary arguments made in the instant case may be divided into three categories . First are the threshold unit questions concerning the identification of the appro- priate bargaining unit or units in which the meat depart- Indeed, even the physical layout of the stores is to a greater or lesser degree standardized Thus, for example, the Chowchilla meat department shelving and product placement conform to Respondent's standard model for Respondent's meat departments 8 In represented stores the title of the chief meat department employee is "head meatcutter " 8 Confusion regarding the initial petition, Case 32-UC-115 10 This failure to seek review of the Regional Director 's dismissal ren- ders that decision final in my view Given the result , I reject the conten- tion advanced by Respondent that the filing of the UC petition recludes me from considering either the accrettion issue in the instant case or the contention that Respondent violated Sec 8(a)(5) of the Act by withhold- ing recognition from the Union SAVE MART OF MODESTO 1197 ment employees at the Chowchilla facility may be prop- erly placed. The second general topic concerns the legal meaning and effect of the contract language in the par- ties' contract at article II, quoted supra, under the Board's "additional store clause" analysis. The third and final topic deals with the circumstances and significance of the actions of the three meat department employees transferred to the Chowchilla facility and whether a ma- jority or the unit employees may be held to have desired union representation at the Chowchilla facility at appro- priate times. 1. Topic one-the unit issues The representation unit question here has several possi- ble answers, each of which significantly affects the re- mainder of the case. The meatcutter employees at the Chowchilla facility ti could theoretically: (1) stand alone as an independent bargaining unit, (2) be part of an all- employee single store unit, (3) be part of a multistore unit, or (4) be properly placed in more than one of the above. The Union strenuously advances the position that the Chowchilla meat department employees may only be part of a single, overall, multifacility unit of meatcutter employees. In the alternative, the Union and the General Counsel argue that the Chowchilla meat department em- ployees could either be part of the multifacility unit de- scribed immediately above or could stand independently as a single facility meat department unit. 12 The Employ- er argues equally strenuously that the meat department employees at the Chowchilla facility are appropriately part of a single all-employee store unit, i.e., one consist- ing of all employees at the facility or, in the alternative, comprise a single facility meatcutter unit. The implications of the differing resolutions of the rep- resentation question are several. First, assuming the Union is correct and the Chowchilla meat department employees may be part of no unit other than the multifa- cility meatcutter unit, then the Chowchilla meat depart- ment employees automatically accrete into the larger unit by operation or law and the Employer is obligated to recognize the Chowchilla meat department employees as part of the overall unit under the contract without any need to consider the Chowchilla meat department em- ployees' wishes with respect to union representation. In the event, as argued by the Employer, the meatcutter employees at the Chowchilla facility are properly only in a single store all-employee unit, i.e., with the grocery and produce employees, then Respondent is in no way ' The supervisory status of the Chowchilla store meat department su- pervisor was in dispute at the hearing and his unit placement is also in contention 12 The Union also argues that, because the Chowchilla store is located between two older stores and because the Chowchilla meat department was staffed by employees from other stores , the opening of the Chow- chilla store should be likened to the relocation of an existing represented unit Without commenting on the evolving state of the law in relocation cases, I simply do not find the Charging Party's analogy here apt and I decline to apply the relocation doctrine to the instant case Simply put, the opening of a new store where other remain open and in place, and where staff is transferred from various of the existing stores rather than from a particular store, does not constitute a relocation The Charging Party's argument that Respondent is obligated to bargain with the Union regarding Chowchilla as if it were a relocated facility is therefore reject- ed Cf Rice Food Markets, 255 NLRB 884 (1981) now obligated to recognize the Union as representative of the meatcutter employees. Should the Chowchilla meat department employees, ir- respective of what other unit(s) they might appropriately be included in, also stand as an appropriate, separate, and independent unit, then the remaining two legal topics discussed infra come into play. More specifically, if and only if the meatcutter employees at the Chowchilla facil- ity may constitute an independent unit does the legal effect of the quoted contractual language remain in issue. And, further, only if that language is held to be an "addi- tional store clause" as discussed infra, does the third topic arise. 2. Topic two-the additional or after-acquired store clause issue The Board since Kroger Co., 219 NLRB 388 (1975), has held that an employer and a union may enter into an agreement whereby the employer agrees to recognize the union as representative of its employees in acquired stores provided the union tenders an appropriate show- ing of majority representation in the new stores. The Board has held that such an agreement must constitute a clear and unmistakable waiver of the employer's right, normally extant, to obtain a Board election when faced with a union's demand for initial recognition. The Union in the instant case asserts that the contractual provision quoted supra, represent such a clause. Respondent argues that the instant contractual language differs from the lan- guage of after-acquired store clauses in all previous Board cases. Respondent argues it is, at best, ambiguous, and, therefore, does not constitute a clear and unmistak- able waiver of either Respondent's right to insist on an election or its right to bargain with the Union over the means of union demonstration of employee support. Again, the Union must prevail in this second argument to bring the third topic, the issue of employee sentiments, into relevance. If the quoted language does not consti- tute a valid after-acquired store clause, then it is immate- rial whether employees at the facility favored or did not favor the Union and how such employee support be manifested. Thus, only if the Union and the General Counsel prevail in this second argument does the third issue, the question of employee sentiments, ripen. 3. Topic three-the majority issue This final area of argument concerns whether on the facts of the instant case, the employees in the meat de- partment of the Chowchilla facility may be held to have manifested either in fact or by operation of law a desire for union representation sufficient to create a binding ob- ligation on the Employer to recognize the Union under the terms of a valid after-acquired store clause. The Gen- eral Counsel and the Union make two contentions in this respect. First, the Union argues that the fact that Re- spondent was contractually bound to transfer employees into new facilities from recognized facilities at a time when a union-security clause was in effect covering those unit employees and the fact that the three trans- ferred employees at Chowchilla were union members makes it unnecessary to inquire further into those em- 1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees' sentiments concerning union representation. Re- spondent disputes this contention and argues that the actual expressions of employee sentiments by Chowchilla staff as testified to by the employees themselves should be considered in evaluating whether a majority of the Chowchilla meat department employees desired union representation . Respondent contends that the record demonstrates that the employees did not want the Union to represent the meat department of the Chowchilla store. The General Counsel and the Union argue that the record evidence of employee sentiments , considered in light of Employer's wrongful conduct, makes it clear, that the employees must be held to have desired union representation at all appropriate times. C. The Unit Question 1. Accretion law An employer's acquisition or construction of an addi- tional facility where the existing facilities are represented often gives rise to the litigation of the issue of accretion in Board cases . 13 If the employees at the new facility are found to be an accretion to the existing bargaining unit, the employees in the new facility are subsumed into the existing unit without a separate test of their sentiments with respect to union representation.14 Where more than one unit placement is possible for the new employees, such as where the employees at the new facility could constitute either an independent unit or be part of the larger whole, the Board has long been cautious in finding an accretion . This is so because such a determination forecloses any independent expression of the sentiments of the employees in the new facility. Kinney National Maintenance Services, 177 NLRB 379 (1969). Sunset House, 167 NLRB 870 (1967). Pix Mfg. Co., 181 NLRB 88 (1970). This caution has evolved in a direct refusal to accrete in two unit situations . In Melbet Jewerly Co., 180 NLRB 107, 110 (1969). The Board said: Under certain circumstances, we might have found an overall unit appropriate, and thereupon given all the employees in the three stores an equal voice in determining their bargaining representative . We will not, however, under the guise of accretion, compel a group of employees who may constitute a sepa- rate appropriate unit , to be included in an overall unit without allowing those employees the opportu- nity to express their preference in a secret election or by some other evidence that they wish to author- ize the Union to represent them. Thus, whereas the Board in pre-Melbet situations looked to the various possible units with a reluctance to find ac- cretion, the Board, in Melbet and thereafter, specifically refuses to find an accretion unless the group of employ- ees at issue may not exist as an independent unit apart from the larger unit applying normal Board representa- 13 See Great Altantic & Pacific Tea Co, 140 NLRB 1011 (1963), for ex- tensive analysis of the early accretion case 14 The additional employees must be fewer than the existing represent- ed employees, as is the case here, where a single new store is posited as tion standards. Thus, for an accretion to exist in the in- stant case , the meatcutter employees at Respondent's Chowchilla facility must not be a possible part of any ap- propriate unit other than the multifacility meatcutter unit covered by the contract. The Board said in Ringsby Truck lines, 211 NLRB 280, 282 (1974): In determining whether a new group of employ- ees constitutes an accretion to an existing contrac- tual unit, the Board has traditionally looked to fac- tors indicative of whether the new employees could constitute an appropriate unit by themselves, or could only be properly represented in the contrac- tual unit.. . . The factors to be considered in resolving accretion issues have been stated by the Board on numerous occa- sions. In Bryan Infants Wear Co., 235 NLRB 1305, 1306 (1978), the Board chose to restate the earlier standard set forth in Peter Kiewit Sons ' Co., 231 NLRB 76, 77 (1977): Where, as here, we are concerned with more than one operation of the single employer , the following factors are particularly relevant; the bargaining his- tory; the functional integration of operations; the differences in the types of work and skills of em- ployees; the extent of centralization of management and supervision, particularly in regard to labor rela- tions, hiring discipline , and control of day-to-day operations; and in the extent of interchange and contact between the groups of employees. Morris 15 summarizing Board law sets forth the follow- ing guidelines for accretion determination: The guideline encompass the presence or absence of a variety of factors such as: (1) the degree of inter- change among the employees, (2) geographical proximity, (3) integration of operations, (4) integra- tion of machinery and product lines, (5) centralized administrative control, (6) similarity of working conditions, skills, and functions, (7) common control over labor relations, (8) collective bargaining histo- ry and (9) the number of employees at the facility to be acquired as compared with the existing oper- ation. Respondent does not dispute and on brief concedes that as an operator of a chain of retail grocery stores, Respondent exercises centralized administrative control over personnel policies and administrative functions of its stores, including its meat departments, but argues that such centralized control is characteristic of the retail chain store industry and has been recognized by the Board as of lesser significance in accretion determina- tions than consideration of the autonomy of local super- vision over employees in their day -to-day work, citing, inter alia, Meyer's Thrifty Acres, 222 NLRB 18 (1976); Renzetti 's Market, 238 NLRB 174 (1978); Save-It Discount Foods, 263 NLRB 689 (1982); and Towne Ford Sales, 270 an accretion to an existing unit composed of a large number of stores 1 5 C Morns, Developing Labor Law, 369 (2d ed 1983) SAVE MART OF MODESTO NLRB (1984), affd. sub nom. Machinists Local 1414 v. NLRB, 759 F.2d 1477 (9th Cir. 1985). The Union argues on brief at 6-7: Although we recognize traditional Board law rec- ognizes a presumption of the appropriateness of a separate unit in a free-standing store, recent Board decisions have substantially undermined that propo- sition. That is, the Board recently determined in a number of circumstances that such entities are not appropriate bargaining units. This is far cry from prior Board decisions which have recognized that such entities may be appropriate units and that an overall unit consisting of several stores or locations may also be an appropriate unit. See Dayton Trans- port Corp., 270 NLRB No. 167 (1984); Genuine Parts Company, 269 NLRB No. 178 (1984); Point Pleasant Foodland, 269 NLRB No. 69 (1984); Mini-Skool Ltd., 268 NLRB No. 16 (October 27, 1983). Given the guidance of Board cases and the positions of the parties, it is appropriate to turn to the specific evi- dence concerning Respondent's operations. 2. Day-to-day operations in Respondent's meat departments It is clear that the meat departments in the stores cov- ered by the collective-bargaining agreement between Re- spondent and the Union are significantly integrated and centrally controlled. In addition to the centralized poli- cies discussed supra, the collective- bargaining agreement provides a multifacility seniority system that, in oper- ation, results in subtantial transfers by meatcutter unit employees between and among the facilities. Transfer re- quests initiated by unit personnel, including "head meat- cutters," are also contractually regulated. Requests for transfers are made to and granted by the divisional meat supervisor. Respondent also maintains a staff of "float- ing" unit employees who are assigned on short notice to various facilities on a temporary basis. The assignment and scheduling of floaters to a particular meat depart- ment are also undertaken by the division meat supervisor or his staff. Meat departments are very similar between stores with staffing, layout duties, etc. established by cen- tral administration. Ordering is primarily from Respond- ent-owned warehouses, although product is occasionally exchanged between stores. The Chowchilla store person- nel have the same titles and duties as employees in Re- spondent's other facilities with the exception that the "head meatcutter" in other facilities bears the title "meat department supervisor" in Chowchilla. There is no dis- pute that the Chowchilla meat department supervisor has the same duties and responsiblities of the head meatcut- ters at Respondent's organized facilities. The record makes it clear that the Chowchilla store manager, presumably as other store managers in the chain, is a statutory supervisor with the power to effec- tively recommend discharge of employees in the store, including meat department employees, and who has clear, if limited, discretion in control of the store within the perimeters established by central management. It is also clear however that the meat department, at least at 1199 the Chowchilla store, is less subject to the supervision and control of the store manager than the grocery and produce departments. Thus, for example, the Chowchilla store manager was a participant in the hiring process for both grocery and produce employees but had no role in the selection of either the meat department supervisor of the two meatcutter employees who were initially trans- ferred to the facility from other stores. Indeed, Store Manager Wall testified that Divisional Meat Supervisor Levesque "Keeps control over the meat department." Chowchilla Meat Department Supervisor Zimmer par- ticipates with the store manager and the grocery and produce supervisors in management meetings , schedules employees in this department and, while not exercised during his tenure as a meat department supervisor or former head meatcutter, has the authority to effectively recommend the discharge of meat department employees and to initiate discipline consistent with personnel guide- lines. 16 The Chowchilla store employees, including the meat department employees, have the same skills and perform the same functions as employees of other facilities. As noted previously, their wage rates and fringe benefits are equivalent; products, store layout, and personnel policies are standard; and all the meat department employees have substantial experience in the meat departments of other facilities of Respondent. I have found that the meat departments in the repre- sented stores functioned under the close direction of the divisional meat supervisor and it is clear that all person- nel transferred to the Chowchilla store were familiar with and accustomed to that tradition of close control at the time of their transfer. Considering the testimony de- 16 Under the longstanding Board doctrine that the statutory definition of a supervisor in Sec 2(11) of the Act is to be interpreted in the disjunc- tive and that "the possession of any one of the authorities listed in [that section] places the employee invested with this authority in the supervi- sor class," Ohio Power Co. v. NLRB, 176 F 2d 385, 387 (6th Cir. 1949), cert denied 338 U S 899 (1950), it is clear and I find that Zimmer during his employment as the Chowchilla store meat department supervisor is a supervisor within the meaning of the Act That is not to say however that I find he bears all the indicia of supervisory authority that Sec 2(11) of the Act recites, nor that, as a supervisor of the meat department, his direction, control, and supervision are substantial in conjunction in my evalution of their demeanor, that, although each was attempting to avoid overtly misstating the facts, each was also inclined to shade or shape his testimony in a way he believed favorable to Respondent's case Thus, for example, there was apparently uncontradicted testimony from Zimmer and Levesque that Levesque as divisional meat supervisor visited the Chowchilla facility no more frequently than fortnightly spending no more than an hour on each visit Under cross-examination however, Levesque testified that he spends 90 percent of his time 5 to 6 days a week "on the road visiting stores " Given that the division has but a score or fewer stores, it is apparent that there is an inconsistency in the testimony concerning the extent of direction and supervision Levesque undertakes with respect to each store meat department The meatcutter at the Chowchilla facility each testified that poor to their transfer to that facility they reported to management certain conversations they had had with a union business agent Both Wayne and Pool testified that they re- ported these conversations not to their store manager or to the head meatcutter at their store, but rather directly to Levesque Each also testi- fied to having made an oral request to be transferred to the Chowchilla facility These requests were made directly to Levesque rather than to their store manager or the head meatcutter at the facility where the em- ployees worked Indeed, Pool was asked by counsel for Respondent "Who did you make the request to?" Pool answered, "To my supervisor Earl Levesque " 1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD scribed above, and the record as a whole, I am con- vinced and find that the meat department at Chowchilla had significant autonomy or independence from the su- pervison of the store manager. I further find that the Chowchilla store meat department staff, both the jour- neymen meatcutter employees and the store meat depart- ment supervisor looked to Levesque, i.e., the divisional management, for supervision in matters concerning the meat department generally. Although I have found Zimmer to be a statutory supervisor on the basis noted above, I find that the general control over the meat de- partment at the Chowchilla store, like the meat depart- ments in the organized stores, to be more divisional than local and, discrediting the testimony of Zimmer and Levesque to the contrary, find that as divisional meat su- pervisor, Levesque had an active role in the supervision of the meat department at the Chowchilla store. I also find the orientation of the Chowchilla and other meat department employees was not to the single store but rather was directed to the divisional unit. The Chowchilla store has experienced but one perma- nent interstore employee transfer that did not involve the meat department. The meat department, eligible for the assignment of floating meatcutter employees, has not had occasion to use such staff and has experienced only one instance of a temporary transfer following the opening of the store. This may be explained by the fact that both the meat department supervisor and the two other em- ployees in the Chowchilla meat department are experi- enced journeymen meatcutters. Other stores employ ap- prentice meatcutter and/or meat wrappers, employees with substantially different duties and skills, who are thus not able to substitute or act for journeyman meatcutters. The three Chowchilla meat department employees given their high degree of skill and experience freely substitute for one another during vacations, sickness, or other emergencies making transfers less necessary. 3. Conclusion Considering the factors described in the Broad cases cited above, the record as a whole and, importantly, my evaluation of the demeanor of the witnesses, I find that the Chowchilla meat department may not stand alone as a separate bargaining unit under Board standards but rather must be considered as a part of and hence an ac- cretion to the existing multifacility unit represented by the Union. There is no dispute regarding the close simi- larity of stores, the central control of policies, and the clear single unit status of the represented meat depart- ments. Turning to the Chowchilla store with its similiar products, layout, staff duties, wages, and other working conditions, I find little reason to treat Chowchilla differ- ently from the other unified meat departments. I specifi- cally reject the contention that the Chowchilla meat de- partment employees experience significant store level su- pervision, rather I find the supervision, in fact, to be di- visional. I make this latter finding in large part on credi- bility grounds, but I am unable to accept the testimony of Respondent's witnesses to the degree of self-sufficien- cy and self-supervision at the store level in Chowchilla as compared and contrasted to the divisional supervision of Southern Division Meat Supervisor Levesque. Applying these findings to the cases I am influenced by the Board's very recent decisions V. I. M. Jeans, 271 NLRB 1408 (1984), and Sol's, 272 NLRB (1984). In V.I.M. Jeans, as illuminated by the factual discussion in the dissent of Member Zimmerman, the Board found the active participation of higher management in the supervi- sion and control of various retail facilities constituted a circimscription of the store manager's authority. In such a setting the Board specifically found the presumption ofthe appropriateness of a single store unit rebutted. V.I.M. Jeans, and the detailed and helpful discussion of numerous recent cases cited therein, points out in the context of highly centralized administration the fact that substantial employee interchange is lacking "fails in its importance to the determination of the issue," supra. In Sol's, the Board found a single facility of a multifacility operation could not stand alone but must be a necessary part of an overall unit where local store control was (1) limited to routine matters such as recommending a par- ticular wage within a centralized, specialized wage range, (2) where store managers could decide who to be selected for layoff, if layoffs were necessary, and (3) where local management initially handled employee dis- cipline and grievances. In reaching this conclusion, I specifically find the meatcutters are not properly part of an all-employee unit, i.e., should not be included with grocery and produce employees. Some recent Board cases have placed meat department employees in all-employee store units. See, e.g., Yaohan of California, Inc., 252 NLRB 309 (1980); Ashcrafts Market, 246 NLRB 471 (1979). Those decisions in part turned on the fact that the employee operated their meat departments using employees who did engage in the extensive cutting of meat traditionally undertaken by meatcutters. Reference was made to the recent utiliza- tion of " boxed meat" is different from the more tradi- tional carcass product that is sent to the retail facilities and there cut into smaller parts by the traditional meat- cutter. It is clear that the new "boxed" technology does not in and of itself eliminate the appropriateness of meat- cutter units. In NLRB v. Super-Discount, 744 F.2d 735, 738 at fn. 2 (10th Cir. 1984), enfg. 261 NLRB 995 (1982), the court stated: Foodland argues that the meat department employ- ees in the Owasso store do not exercise special butchery skills which have traditionally differentiat- ed meat department employees from grocery em- ployees in NLRB decisions. As support for this stand, the Company points out that the meat depart- ment operates on a "boxed beef' system, whereby the meat arrives at the store packaged in "primal cuts." The meat department employees then cut and process the meat from this "boxed" stage rather than from the more traditional "carcass" stage. Re- lying on Great Day, Inc., 248 NLRB 527 (1980), the Company contends that because specialized skills are no longer required, the Board should have in- cluded the meat department employees in the same bargaining unit as the other employees We do not agree. The evidence shows that the meat depart- ment employees must still spend most of their time SAVE MART OF MODESTO 1201 cutting, processing and wrapping the meat-func- tions which require special skills. We agree with the Board that this practice distinguishes Great Day where the meat department employees in that case spent several seventy-five percent of their time un- loading trucks, unpacking cases of meat products, stocking display cases, etc. Further, in Ashcrafts Market, supra, the Board specially found that the meatcutter employees there included in an overall unit did not possess traditional meatcutter skills, that the employer in that case did not have an appren- ticeship program, and that the meatcutter employees did not have a separate community of interest. In the instant case, the meatcutters have traditional skills, are the high- est paid nonsupervisory employees at the facility, and have the separate supervision discussed supra. On this record I have no difficulty finding the meatcutter em- ployees constitute a separate identifiable unit from gro- cery and produce employees with a clearly separate and distinct community of interest. I have made the above finding fully cognizant of the reluctance of the Board to find accretions and further aware of the presumption of appropriateness of single fa- cility units. 17 I conclude that a finding of accretion is mandatory on this record where the meat department at the Chowchilla store, in light of the factors and findings made supra, cannot stand as an independent unit of em- ployees. Although not necessary to the result, I am further per- suaded of the correctness of my finding by considering the increased stability of labor relations that will result from this result. It seems anomalous that a chain of retail- stores with essentially identical meat departments should be found to consist of two units: a multifacility unit and a single store unit at the Chowchilla facility. No other union is involved in this proceeding and only the Union is interested in representing Respondent's meat depart- ment employees. Thus, if the Chowchilla employees are represented by the Union, there will be one very large unit and one small unit among Respondent's stores. Fur- ther, it seems reasonable, that given the similarity of the various facilities, the Employer should not experience disruption of its labor relations by having one single overall meatcutter unit rather than two units, with the difficulties that lack of uniformity could produce In summary then, in addition to the analysis supra, that leads me to the conclusion that the unit here must be multifacility, I find no larger policy reasons that support a contrary conclusion. D. Consequences Having found that the meatcutter employees at the Chowchilla facility are accredited into the unit covered by the current collective-bargaining agreement between 17 Although not a basis for my decision here, the presumption of the appropriateness of a single store unit is in my view less compelling where the unit issue involved is not whether all employees in the facility stand together in a single unit, but rather where the question is whether a rela- tively small number of employees with a separate and distinct community of interest from other store employees will either stand alone or with other specialized employees in other stores Respondent and the Union, it follows, by virtue of that fact, Respondent was obligated to recognize the Union and apply the terms of the existing contract to the Chowchilla employees from the date of the Union's demand that Respondent do so, November 29, 1983. Re- spondent's failure and refusal to recognize and apply the collective-bargaining agreement to those employees from that date is therefore a violation of Section 8(a)(5) and (1) of the Act. Given these findings, it is unnecessary to consider whether a bargaining obligation would also have arisen through operation of the union recognition clause in the collective-bargaining agreement quoted supra. Further, it is unnecessary to consider whether employees in the Chowchilla store meat department expressed directly or otherwise an interest in having the Union represent them so as to trigger the union recognition clause under the theory advanced by the General counsel and the Union. Accordingly, I shall not further consider the evidence or arguments concerning these matters including the De- cember 6, 1984 decision of Arbitrator Letter. REMEDY Having found that Respondent has engaged in an unfair labor practice. I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the purposes of the Act. Having found that Respondent has failed and refused to apply the terms of the current collective-bargaining agreement to the unit employees at the Chowchilla facility in viola- tion of Section 8(a)(5) and (1) of the Act, I shall order Respondent to make the unit employees whole by resto- ration of any loss of wages and benefits they suffered as a result of this discrimination, including, but not limited to, the payment of all pension and health and welfare contributions required under the contract, which had not been paid and which would have been paid absent Re- spondent's unlawful conduct as provided by the Board in McWhorter Trucking, 273 NLRB 369 (1984), and cases cited therein. Interest on payment to employees shall accrue as set forth in Florida Steel Corp., 231 NLRB 651 (1977). Inter- est and other special make-whole requirements with re- spect to the contractual fringe benefits shall be deter- mined in accordance with Merryweather Optical Co., 240 NLRB 1213 (1979). Having found Respondent wrongfully withheld recog- nition of the Union as representative of unit employees at the Chowchilla facility, I shall require it to reaffirm rec- ognition of the Union in the unit. Inasmuch as Respondent's conduct constitutes a total rejection of employees' rights at the Chowchilla facility to be represented by a union, I find Respondent's con- duct goes to the heart ofthe Act. Accordingly, I shall order Respondent to cease and desist from violating the Act in any other manner. Hickman Foods, 242 NLRB 1357 (1979). I shall also order Respondent to preserve and make available to the Board or its agents, on request, for inspection and copying, all records necessary to de- termine the payments necessary under this decision and 1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to ensure Respondent has complied with the terms of the Order. I shall further order that Respondent make whole the Union for loss of union dues that would have been paid by unit employees but for Respondent's failure and refus- al to apply the collective-bargaining agreement, with its union-security clause, to the Chowchilla facility. Dura- Vent Corp., 257 NLRB 430 (1981); J. F. Swick Insulation Co., 247 NLRB 626 (1980); Ogle Protection Service, 183 NLRB 682 (1970). A question arises regarding whether the Chowchilla store meat department supervisor, whom I have found to be a statutory supervisor, supra, should be included in the recognized bargaining unit. There is no dispute that head meatcutters at other facilities are covered under the current collective-bargaining agreement and have been for many years. There is further no dispute that the duties and responsibilities of the head meatcutters in the previously recognized facilities are identical to the duties and responsibilities of the Chowchilla store meat depart- ment supervisor. Accordingly, it may be assumed that the head meatcutters have been and are now statutory supervisors covered by the collective-bargaining agree- ment. The Board has long held that it is disruptive of a collective-bargaining relationship to clarify a bargaining unit during the term of the collective-bargaining agree- ment to exclude employees or other individuals including supervisors even if such individuals would not normally be part of the collective-bargaining unit under Board standards. San Jose Mercury, 197 NLRB 213 (1972); Wal- lace-Murray Corp., 192 NLRB 1090 (1971); see also Arthur C. Logan Memorial Hospital, 231 NLRB 778 (1977). The Board in Arizona Electric Power Cooperative, 250 NLRB 1132 (1980), specifically ordered an employer to recognize and bargain with a union and to honor and apply the current collective-bargaining agreement cover- ing various employees including "lead dispatchers." The Board recognized that such classified employees could well be statutory supervisors, and the following refer- ence to that problem at 1134 footnote 10: Of course, were the load dispatchers found to be supervisors or managerial employees, Respondent's duty to bargain concerning them would terminate on the expiration of the current contract, provided that Respondent took appropriate steps at that time to contest their continued inclusion in the unit. In that regard, because Respondent's duty to bargain concerning the lead load dispatcher is based entirely upon his voluntary inclusion in the unit, this duty will not extend past the expiration of the current contract unless the party again voluntarily agrees at that time to include him in the unit. I find that it would be disruptive of the current collec- tive-bargaining relationship to exclude the Chowchilla store meat department supervisor who differs from head meatcutters at the other represented facilities in name only, even though he has been found to be a statutory supervisor. I shall however, consistent with the language quoted above, require Respondent to recognize the Union as representative of the employees only during the life of the current collective-bargaining agreement pro- vided that Respondent takes appropriate steps at an ap- propriate time to contest the continued inclusion in the unit of such employees. i 8 CONCLUSIONS OF LAW 1. The Respondent, Save Mart of Modesto, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for collective bargaining within the meaning of Sec- tion 9 of the Act: All full-time and regular part-time head meat cut- ters, the Chowchilla store meat department supervi- sor, journeymen meatcutters, drivers in retail mar- kets, new clerks, cashiers, delicatessen workers, demonstrators, apprentice meat cutters and clean-up workers employed in stores in Merced, Madera, Fresno, Kings, and Tulare Counties, California and vicinity including the Chowchilla store, excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act not specifically included above. 4. The Union has at all times material represented a majority of employees in the unit described above. 5. By failing and refusing to recognize the Union as representative of unit employees at Respondent's Chow- chilla facility in November 1983 on the Union's demand, Respondent violated Section 8(a)(5) and (1) of the Act. 6. By failing and refusing to apply the terms and con- ditions of the applicable collective-bargaining agreement to unit employees at Respondent's Chowchilla store in November 1983 on the Union's demand, Respondent vio- lated Section 8(a)(5) and (1) of the Act. 7. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 18 As a result of the conversion of the contract's unit description to Board parlance, see fn 4, above the unit found appropriate here will spe- cifically include both head meatcutters and the Chowchilla store meat de- partment supervisor and specifically exclude supervisors as defined in the Act Even were the actual contract language so constructed, the Board would not in midcontract clarify out specifically included categories that were found supervisory Arthur C. Logan Memorial Hospital, 231 NLRB 778 (1977) Ariel Sotolongo, Esq., for the General Counsel on brief. Henry F. Telfeian, Esq. (McLaughlin & Irvin), of San Francisco, California, for the Respondent on briefs David A. Rosenfeld, Esq. (Van Bourg, Allen, Weinberg, Roger), of San Francisco, California, for the Charging Party on brief. SUPPLEMENTAL DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. The above-captioned case arose as follows. On 21 De- SAVE MART OF MODESTO 1203 cember 1984 I issued a decision in the above-captioned proceeding. Respondent filed exceptions and a support- ing brief, and the General Counsel and the Charging Party filed limited cross-exceptions and supporting briefs. On 29 September 1987 the Board issued an order re- manding proceeding to administrative law judge direct- ing me to issue a supplemental decision containing specif- ic findings of fact, and conclusions and recommendations in light of such findings, concerning the day-to-day su- pervision of the meat department at the Chowchilla store, and findings of fact, credibility resolutions, conclu- sions of law, and recommendations concerning the Gen- eral Counsel's contention that Respondent was obligated to recognize the Union under the union recognition clause in the relevant collective-bargaining agreement. FINDINGS OF FACT The Board in its remand order stated: "We shall not order the taking of new evidence, and we instruct the judge to base his findings and conclusions on evidence which already has been adduced." The Board's remand- ing order was received in the San Francisco Division of Judges' Office on 2 October 1987. On that same day, I issued an order allowing the parties an opportunity to brief the issues raised by the remand All parties submit- ted timely supplemental briefs. On the record in the original proceeding, as augmented by the Board's remand order and the supplemental briefs submitted by the parties, I make the following supplemental findings of fact and conclusions of law.' The Board's remanding order addresses two separate and essentially independent questions litigated in the original proceedings. The first matter is the day-to-day supervision of the meat department of Respondent's Chowchilla store. The second is the issue of whether Re- spondent was obligated to recognize the Union at the Chowchilla store by virtue of the collective-bargaining agreement between Respondent and the Union. It ap- pears appropriate to treat these two matters separately below. 1. REMAND ISSUE ONE: DAY-TO-DAY SUPERVISION OF THE MEAT DEPARTMENT AT THE CHOWCHILLA STORE A. The Board's Remand and the Original Decision The Board's remanding order contained the following language: The judge concluded that the meat department em- ployees at Respondent's Chowchilla store constitut- ed an accretion to an existing unit covered by the collective-bargaining agreement then in effect be- tween the Respondent and the Union. We note that, in so doing, the judge discredited the testimony of 1 In view of the substantial length of my 21 December 1984 decision and narrowness of the matters I am directed to address by the Board's remanding order, I shall not make any attempt to recapitulate my original decision save as so far as absolutely necessary to render these supplemen- tary findings comprehensible Where not otherwise explicitly stated, this supplemental decision incorporates without modification my 21 Decem- ber 1984 decision three of Respondent's witnesses as to the day-to-day supervision of the meat department at the Chow- chilla store but did not otherwise make specific af- firmative factual findings concerning this factor. The Board's order specifically directed me to make "spe- cific findings of fact, and conclusions and recommenda- tions in light of such findings, concerning the day-to-day supervision of the meat department at Respondent's Chowchilla store . . . ." My 21 December 1984 decision addressed the issues of accretion and, more particularly, the relation of the Chowchilla store to others of Respondent's stores. In- cluded in the analysis was a discussion of supervision within the Chowchilla store and supervision of the store meat department by higher levels of management. That discussion and analysis are impossible to condense or ex- cerpt here. The narrow area addressed by the Board's re- manding order, however, deals with the following lan- guage in the original decision: Although the evidence of the day-to-day supervi- sion of the meat department at the Chowchilla facil- ity and the allocation of supervision and control be- tween divisional and store levels was adduced es- sentially entirely through Respondent's witnesses at the hearing and was thus not a matter of head-on dispute, I do not fully credit the testimony of Wall, Zimmer, and Levesque in this area. I do not take their testimony at face value because of certain in- consistencies in the testimony that lead me to be- lieve, in conjunction in my evaluation of their de- meanor, that, although each was attempting to avoid overtly misstating the facts, each was also in- clined to shade or shape his testimony in a way he believed favorable to Respondent's case Thus, for example, there was apparently uncontradicted testi- mony from. Zimmer and Levesque that Levesque as divisional meat supervisor visited the Chowchilla facility no more frequently than fortnightly spend- ing no more than than an hour on each visit. Under cross-examination however, Levesque testified that he spends 90 percent of his time 5 to 6 days a week "on the road visiting stores." Given that the divi- sion has but a score or fewer stores, it is apparent that there is an inconsistency in the testimony con- cerning the extent of direction and supervision Levesque undertakes with respect to each store meat department. The meatcutters at the Chow- chilla facility each testified that prior to their trans- fer to that facility they reported to management certain conversations they had had with a Union business agent. Both Wayne and Pool testified that they reported these conversations not to their store manager or to the head meatcutter at their store, but rather directly to Levesque. Each also testified to having made an oral request to be transferred to the Chowchilla facility. These requests were made directly to Levesque rather than to their store man- ager or the head meatcutter at the facility where the employees worked Indeed, Pool was asked by counsel for Respondent: "Who did you make the 1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD request to?" Pool answered, "to my supervisor Earl Levesque." As part of the original decision's conclusion section re- garding the accretion issue, I stated the following at "3 Conclusion": I specifically reject the contention that the Chow- chilla meat department employees experience signif- icant store level supervision, rather I find the super- vision, in fact, to be divisional. I make this latter finding in large part on credibility grounds, but I am unable to accept the testimony of Respondent's witnesses to the degree of self-sufficiency and self- supervision at the store level in Chowchilla as com- pared and contrasted to the divisional supervision of Southern Division Meat Supervisor Levesque. Considering record testimony and other factors as noted in my original decision, I made certain conclusions including the following paragraph at "3. Conclusion": Considering the factors described in the Board cases cited above, the record as a whole and, im- portantly, my evaluation of the demeanor of the witnesses, I find that the Chowchilla meat depart- ment may not stand alone as a separate bargaining unit under Board standards but rather must be con- sidered as a part of and hence an accretion to the existing multifacility unit represented by the Union. ` There is no dispute regarding the close similarity of stores, the central control of policies, and the clear single unit status of the represented meat depart- ments. Turning to the Chowchilla store with its similar products, layout, staff duties, wages, and other working conditions, I find little reason to treat Chowchilla differently from the other unified meat departments. I specifically reject the conten- tion that the Chowchilla meat department employ- ees experience significant store level supervision, rather I find the supervision, in fact, to be division- al. I make this latter finding in large part on credi- bilty grounds, but [because] I am unable to accept the testimony of Respondent's witnesses to the degree of self-sufficiency and self-supervision at the store level in Chowchilla as compared and contrast- ed to the divisional supervision of Southern Divi- sion Meat Supervisor Levesque. B. Additional Findings and Conclusions I take the portion of the Board's remand quoted above to address my credibility resolutions and findings of fact concerning the degree and relationship of supervision of the Chowchilla meat department between the store level and the divisional level. I further believe the remand re- quires more specific affirmative factual findings concern- ing this relationship. As noted in the quoted portions of my original deci- sion, there was testimony from Levesque, Wall, and Zimmer that Levesque visited the Chowchilla facility no more often than once every 3 to 4 weeks with visits last- ing from 15 minutes to 1-1/2 hours, that Levesque spoke on the telephone with Zimmer no more often than every 2 or 3 weeks, and that he rarely spoke on the telephone to Chowchilla meat department meatcutters Pool or Sharp. Levesque also testified that he was supplied with a company car and that as part of his regular duties he spent 90 percent of his time, 5 to 6 days a week, travel- ing to the 19 stores in his division. During cross-examina- tion, when asked why he had not read a certain compa- ny memorandum, Levesque explained, "If I were to try to read everything that came across my desk, I would not be able to spend 90 percent of my time in the stores." Levesque testified the stores under his supervi- sion were laid out essentially in a 300-mile loop. Because there was absolutely no evidence in the record to indi- cate that the Chowchilla store, once it was opened and operating, was supervised less closely by Levesque than the other 18 divisional stores, it is apparent that there is an inconsistency between the fortnightly or monthly visits testified to by Levesque and others in the manage- ment team and the number and/or duration of visits that would occur if Levesque spent his time "on the road" visiting stores as he testified under cross-examination. In evaluating Levesque's credibility in this regard, I also note that Levesque's testimony concerning other aspects of his role as a supervisor of Respondent's divisional store meat departments and the operations of the meat department division was subject to impeachment by counsel for the Charging Party by the use of a transcript of Levesque's earlier testimony at an arbitration concern- ing similar issues.2 While on re-direct examination Leves- que was able to explain to an extent his different testimo- ny before the arbitrator, I became and remain convinced that Levesque's testimony before me had a rehearsed nature that rendered his testimony more calculated and more susceptible to self-serving characterization and dis- tortion that that given before the arbitrator at a time when the implications of his answers and the conse- quences of his answers to his employer would not have been fully appreciated I make this finding not only on an examination of the arbitral testimony as compared and contrasted to the testimony given in the hearing here. I base it additionally on Levesque's demeanor during his direct examination, impeachment, and rehabilitation. I was simply not convinced at the hearing, at the time I issued my original decision, or now that Levesque's an- swers in these critical areas were free from a calculation that on occasion carried past recollection of events into wished-for occurrences. In these respects I in no way change but here reiterate the findings in my original de- cision. But, having discredited Levesque and, on a similar basis to the extent necessary, Zimmer and Wall, as the Board's remand indirectly points out, what specific af- firmative findings did I make in my original decision or do I make now that support my other findings respecting this issue? First, it is clear from the testimony and I find that, no matter how often Levesque might visit the facili- ty or call on the telephone, day-to-day supervision of the 2 As noted in the onginal decision , the question of union recognition of other newly-opened meat departments has been litigated in other forums SAVE MART OF MODESTO 1205 meat department employees in the sense of an onsite su- pervision was undertaken by Meat Department Supervi- sor Zimmer. Zimmer testified credibly without contra- diction that he assigns the meatcutters their daily tasks.3 It is also true, as Store Manager Wall credibly testified, that he interacts with Zimmer and coordinates as neces- sary the activities of the meat department with those of the store. For example, the hours of the meat department were changed by Wall as were store hours without prior approval from divisional supervision either at the meat department or any other level. It is also true, and I find, that Divisional Meat Depart- ment Supervisor Levesque, as Store Manager Wall testi- fied, "keeps control over the meat department." The record reflects that Levesque calls meat department store managers on the telephone to congratulate them regard- ing outstanding weekly labor cost control, is considered, by at least the Chowchilla store meat department em- ployees, as the representative to contact rather than their own meat department supervisors or store managers con- cerning their desired transfer to the Chowchilla store. I also find that Levesque, perhaps as a result of his long experience in the industry, with experience as a Re- spondent meatcutter, as a Respondent store meatcutter supervisor, and as a supervisor over all Respondent's meat departments during Respondent's earlier history as a smaller chain, is a hands-on supervisor who spends the very great bulk of his time in the field supervising the 19 departments in his division. I find his supervision of Zimmer and the Chowchilla meat department is close and frequent although it does not occur on a daily or even every-other-day basis.' As noted supra, there is no conflict direct or indirect in record testimony that meat department employees are directed on a day-to-day basis by their meat department supervisor and, to the degree noted supra, by the Chow- chilla store manager. These individuals were assigned to the store full time. It is clear that crediting Levesque's testimony quoted supra in a manner most favorable to the Charging Party's argument, even if Levesque spent 90 percent of his time, 6 days a week on the road visiting stores, the Chowchilla facility representing approximate- ly 5 percent of Levesque's stores, the Chowchilla meat department would not receive an amount of Levesque's time necessary to undermine a finding that day-to-day supervision resided with Chowchilla Meat Department Supervisor Zimmer. This being so, any suggestion that there is no store level day-to-day supervision of the Chowchilla meat department employees in the sense of onsite direction is not consistent with either the record or my other findings.-' 3 The assignment and supervision of unit employees as they undertake these tasks is relatively minimal inasmuch as Zimmer's colleagues are ex- perienced journeymen meat cutters who are able to undertake normal daily tasks within the meat department without significant direction or control 4 This habit of close supervision seems to have been longstanding With the recently disputed stores reserved , the meat departments have been in a unified bargaining unit for many years and the meat department heads have been in the bargaining unit 5 Nor do I believe any party disputes the identity of onsite day-to-day supervision as opposed to the larger question of effective supervision onsite or otherwise The Charging Party's supplemental brief states Given the fact of day-to-day supervision by an in-store supervisor, I do not however modify my conclusions re- specting the larger issue of whether the Chowchilla meat department unit should be accreted into the remaining chain. How can this be? It devolves from my determina- tion that the store meat departments, including Chow- chilla, are closely supervised by and oriented to the divi- sional meat supervisory structure rather than to a store system of supervision. Thus, I find store supervision, althugh day-to-day in a temporal and geographical sense, is substantially lacking in extent and independence. I find effective supervision to reside with Levesque at the divi- sional level. The day-to-day supervision of Chowchilla meat de- partment employees occurs at the store level largely by the meat department supervisor rather than the store manager . The Chowchilla meat department supervisor and to an extent the meat department employees in gen- eral look to the meat division and Levesque in particular for their direction and control. As the Chowchilla store manager testified, it is the meat division rather than the individual store managers who primarily direct and con- trol the store meat departments. This does not mean that divisional supervision is involved in the day-to-day on site supervision and direction of unit employees. Rather, it means, and I find, that as a result of the effective divi- sional supervision and the other divisional controls and procedures discussed in my original decision, the com- munity of interest of meat department employees and their orientation as part of the employer's staff is with the other meat departments and the division rather than with the store. Chowchilla Store Meat Department Su- pervisor Zimmer, who, as found in my original decision, is a statutory supervisor and who has, in the sense used here, day-to-day direction and control of the meat de- partment employees, is therefore part of a divisional su- pervisory structure of meat department employees. The evidence of his day-to-day control over employees in the meat department, as compared and contrasted to the lesser degree of control exercised by the store manager, and the much stronger control of Levesque supports rather than detracts from my finding of an overall com- munity of interest among store meat department employ- ees in the multistore unit. My conclusion here does not stand in isolation based on these supplementary findings. Rather, as set forth in detail in my original decision, the uniform policies, pro- cedures, and administrative practices of Respondent's op- General Counsel urges the Judge to find that effective day-to-day su- pervision of the meat department , as indicated by the record, was handled by Earl Levesque, Respondent' s meat supervisor Although meat department supervisor Zimmer was the only supervisor present at the store on a daily basis, his limited authority was largely circum- scribed by Levesque The General Counsel's supplemental brief states The Meat Manager, Earl Levesque , exercised substantial day-to-day control over the Meat Department Thus, Mr Levesque, as the Meat Supervisor, did the hiring, firing and other employee related functions establishing day-to-day control in the hands of the Divi- sional Meat Supervisor As noted, infra, I find these arguments persuasive in the final result with- out using the phrase "day-to-day supervision" in the sense argued by the General Counsel or the Charging Party 1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erations, coupled with the control at the division level of the initial hiring of all meat department employees at the Chowchilla facility and other newly opened facilities as well as other central controls, support my conclusion here. C. Summary Accordingly, based on all the above, I make the fol- lowing supplementary finding that the onsite day-to-day supervision of the Chowchilla meat department unit em- ployees in the narrow sense defined, supra, is undertaken at the store level by Chowchilla Store Meat Department Supervisor Zimmer who in turn is primarily responsible to Divisional Meat Supervisor Levesque. I reiterate my previous finding however that the effective supervision as well as the orientation and community of interest of the Chowchilla meat department employees is with the divisional meat department and the other store meat de- partment employees rather than with the other employ- ees at the Chowchilla store. Thus, save for my modified findings of fact regarding the onsite day-to-day supervi- sion of Chowchilla Meat Department store employees by Chowchilla Meat Department Supervisor Zimmer, I do not modify the findings of fact or conclusions of law of my original decision with respect to the accretion ques- tion. II. REMAND ISSUE TWO: RESPONDENT'S OBLIGATION TO RECOGNIZE THE UNION AT THE CHOWCHILLA STORE UNDER THE COLLECTIVE-BARGAINING AGREEMENT BETWEEN RESPONDENT AND THE UNION A. The Board's Remand and the Original Decision In my original decision, I held that there were three issues to be decided, the unit issue, the issue of whether the contractual language between the parties constituted an "additional store clause" under Board law, and, final- ly, assuming such a contract clause, whether the Union had demonstrated sufficient employee support under the Board law to put the clause into effect In my original decision, I resolved the accretion issue in such a way that Respondent was obliged, independent of any con- tractual duty, to recognize the Union, I stated at "D. Consequences": Given these findings, it is unnecessary to consider whether a bargaining obligation would also have arisen through operation of the Union recognition clause in the collective-bargaining agreement quoted supra. Further, it is unnecessary to consider whether employees in the Chowchilla store meat department expressed directly or otherwise an inter- est in having the Union represent them so as to trig- ger the union recognition clause under the theory advanced by the General Counsel and the Union. Accordingly, I shall not further consider the evi- dence or arguments concerning these matters in- cluding the December 6, 1984 decision of Arbitra- tor Letter. The Board in its remand order specifically directed me to make: findings of fact, credibility resolutions, conclusions of law and recommendations concerning the Gener- al Counsel's contention that counsel's contention that the Respondent was obligated to recognize the Union under the Union recognition clause in the relevant collective-bargaining agreement.' I Such findings should include, but are not limited to, a resolu- tion of whether the General Counsel has established majority status among the meat department employees at the Chowchilla fa- cilty B. Additional Findings and Conclusions As noted supra, my review and reconsideration of the evidence concerning the accretion issue as directed by the Board's remand has not caused me to change my final conclusion respecting the accretion issue. Thus, it remains unnecessary, should my resolution of the issue withstand review, to consider the contractual issues raised here. In light of the specific directives of the Board's remand however, I shall address first the con- tractual issue and, thereafter, the issue of union majority support in an after-acquired store clause context. Such an analysis presupposes reversal of my accretion findings, supra. The issues of contract and employee support for the Union are factually independent and will be consid- ered separately below. 1. The contract issue My 21 December 1984 decision sets forth the facts and positions of the parties respecting the argument that the applicable contract between the parties including an after-acquired store clause. I shall not repeat that recita- tion here. That decision (at fn. 1) noted that the Charg- ing Party had filed a motion to defer to arbitration and/or to supplement the record with the 6 December 1984 decision of Arbitrator Letter in a matter brought by the Charging Party against Respondent interpreting and applying the instant contract in an after-acquired store context at another of Respondent's facilities. The foot- note stated: "The motion to defer is denied inasmuch as the unit issues here are for Board determination. I shall receive the December 6, 1984 decision of Arbitrator Letter into the record consistent with my rulings at the hearing concerning the limited use of such evidence." Arbitrator Letter's decision also addresses bargaining unit questions and the question of whether a majority of employees selected the Union at the facility in dispute. The resolution of such matters has been traditionally re- served by the Board to itself and, consistent with that view, I shall not consider Arbitrator Letter's discussion and analysis of those issues. Arbitrator Letter's arbitra- tion decision, however, also interprets the contract be- tween the parties The Board in Kroger Co, 219 NLRB 388 (1975), and its progeny has held that additional store clauses constitute in effect a contractual waiver by an employer of its right to seek a Board election measuring the desires of its employees for union representation. The SAVE MART OF MODESTO Board has consistently held that, to the extent such clauses appear to affect employees' rights, they will be carefully scrutinized. Thus, the Board has traditionally read into additional store clauses a need to demonstrate union majority support among employees at any facility at which a union is recognized pursuant to such a con- tractual agreement. Arbitrator Letter in his decision in- terpreted the instant contract in light of the bargaining history and past practice of the parties as well as rele- vant Board and court law. He concluded that the con- tractual language quoted in my original decision consti- tuted an after-acquired store clause. The decision of the arbitrator in this narrow aspect interprets the contract and resolves the rights of only the Charging Party and Respondent and not the rights of employees at various facilities. The Board's traditional view that it will not defer to an arbitrator's decision concerning issues of ma- jority support for the union or concerning unit or repre- sentation questions does not apply to such an interpreta- tion. Thus, consistent with the Board's traditional stand- ards for deferring to an arbitrator's interpretation of the contract, at least insofar as to the rights of contracting parties are involved, I find, consistent with Arbitrator Letter's explicit findings in his arbitration decision,6 that the contract contains a valid after-acquired store clause within the meaning of the Board decisions cited supra and in my original decision. 2. The majority issue Several separate determinations must be made to re- solve the majority question. First, the date or dates on which the majority is to be tested must be established. Second, the unit complement must be identified. Third and finally, the means of measuring employee sentiments and the burdens assigned to the parties in establishing those sentiments must be established. The Board in Joseph Magnin Co., 257 NLRB 656, 656- 657 (1981), enfd. 704 F.2d 1457 (9th Cir. 1981), noted that under a valid after-acquired store clause, the em- ployer's duty to recognize the union arises "only if the Union presented [the employer] with concrete evidence of support by a majority of the [new store's] employees." As noted in my original decision, the Union made its demand for recognition on 29 November 1983, the day before the Chowchilla facility opened to the public. By that date the three meat department employees at Chow- chilla had been selected and were actually at the facili- ty.'' It follows therefore that these individuals' sentiments should be examined as of that date-8 6 Arbitrator Letter (at p 32 of his arbitration decision) states "It fol- lows, and it is concluded, that the Parties' current agreement, effective January 13, 1983, still contains a-viable after-acquired store clause " r There were temporary employees at the Chowchilla store for the preparation and opening proceedings These temporary employees were at no time part of the appropriate unit 8 The Charging Party argues the Employer should have been aware of the Union's "continuing demand for recognition in newly opened stores " Such a theory, if viable in other circumstances, fails here The Union, by choosing the time of the delivery of its demand, established the date the majority was to be tested 1207 As of 29 November 1983 meatcutter journeymen Pool and Sharp and Store Meat Department Supervisor Zimmer had each executed and mailed withdrawal re- quests to the Union. Respondent on brief points out that the Board in Distillery Workers Local 80 (Capitol-Husting Co.), 235 NLRB 1264 (1978) specifically held that a re- quest for a withdrawal card is evidence of an intention to resign from the union. Here there can be no question that those actions constitute convincing evidence that the employees in the meat department at the Chowchilla fa- cility did not wish the Union to represent them.9 Further the Charging Party had no evidence save union member- ship to offer in support of a contention that the employ- ees sought representation at the Chowchilla facility. Two separate arguments were offered that challenge the finding above. First, the Charging Party and the General Counsel argue that a presumption of majority support for the Union arose simply from the fact that the employees staffing the Chowchilla meat department were transferred from other facilities covered by the collec- tive-bargaining agreement that agreement contained a union-security clause. Thus, Counsel for the General Counsel states in his original brief: Respondent, by transferring a majority of its own employee unit members into a new store cannot then claim that the Union no longer represents the employees, particularly when the new store is not different than other stores wherein the Union con- tinues to be the acknowledged bargaining represent- ative. Thus, the presumption of majority, born out of the multi-location unit, carves over to the new Chowchilla store with the unit employees trans- ferred there. I reject this argument as contrary to the fair meaning of the Joseph Magnin Co. decision, supra, and Williams & Lane, Inc., 254 NLRB 609 (1981). These decisions explic- itly require evidence of employee sentiments to be con- crete and directed to representation at the new store not at previouslocations. The General Counsel challenges the conduct of Re- spondent's agents in communicating with the transferees to the Chowchilla department contending that any infor- mation given by the employees to Respondent's agents concerning their union sentiments was improperly solicit- ed and was, under scrunity, not sufficient to support the Employer's refusal to recognize the Union as representa- tive of the Chowchilla meat department store employees The Charging Party goes further and challenges the de- cision of Respondent to transfer the particular employees it selected for the Chowchilla store as based entirely on Respondent's improper consideration of union sentiments and sympathies. Under the arguments of the Charging Party and General Counsel, the improprieties of Re- spondent in selecting the particular employees and in e In view of the unanimity of opinion of the two journeymen meatcut- ters who were indisputably within the bargaining unit, it is unnecessary to determine the unit placement-for purposes of testing majority senti- ments-of Store Meat Department Supervisor Zimmer This is so be- cause, irrespective of his unit placement or, indeed, his sentiments re- specting the Union, he could not affect the arithmetic result 1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dealing with them between the time of their selection and the time of the opening of the Chowchilla store should prevent any consideration of the anti-union senti- ments of those employees. I reject the position of both the Charging Party and the General Counsel on this record concerning the effect of argued Respondent improprieties in the selection of or communication with Chowchilla meat department em- ployee transferees during the period before the opening of the Chowchilla store. In my view neither the General Counsel nor the Charging Party may now contend Re- spondent engaged in misconduct that under normal Board doctrines would constitute a violation of Section 8(a)(1) of the Act, unless such conduct had been alleged in the complaint as a violation of the Act. In other words, I find the General Counsel's failure to allege the conduct as a violation of Section 8(a)(1) of the Act pre- cludes that conduct from being considered as sufficiently improper to affect the employee sentiments expressed for purposes of resolving the after-acquired store clause ma- jority issue. On the same grounds I reject the Charging Party's contention that, in effect, the Employer violated Section 8(a)(1) and (3) of the Act by selecting employees for transfer to the new facility based on union senti- ments. Given my findings above, I conclude that at no time did the Union provide Respondent with concrete evi- dence that a majority of employees in the meat depart- ment unit at the Chowchilla store desired to be repre- sented by the Union at the Chowchilla store. This being so, irrespective of my findings respecting the validity of the after-acquired store clause, the General Counsel and the Charging Party have failed to show a contractually based bargaining obligation on the part of Respondent. i o i° A similar finding was made by the Administrative Law Judge Jer- rold H Shapiro in his 13 February 1985 decision , Save-Mart of Modesto, Inc., JD-(SF)-25-85, affirmed by the Board in the absence of exceptions on 2 April 1985 That decision held that the Respondent here was not obligated to recognize a sister union of the Charging Party at its newly Accordingly, I find that Respondent was under no obli- gation, as a result of the after-acquired store clause in its collective-bargaining agreement with the Charging Party, to recognize or bargain with the Union respecting the meat department employees at its Chowchilla facili- ty. 11 CONCLUSIONS OF LAW On the foregoing findings of fact and the entire record here, I make the following supplemental conclusions of law, which follow after conclusions of law 1 through 7 as set forth in my original decision of 21 December 1984. 8. Respondent and the Charging Party at relevant times herein had a collective-bargaining agreement con- taining a valid after-acquired store clause. 9. At no relevant time did the Charging Party present Respondent with concrete evidence of support by a ma- jority of the new store's unit employees, therefore the provisions of the contract's after-acquired store clause were not triggered and at no time acted to obligate Re- spondent to recognize and bargain with the Charging Party concerning the Chowchilla store meat department employees. [Recommended Order omitted from publication.] opened Tracy, California facility where the General Counsel and the Union offered as proof of majonty support for the Union the existing union membership of the meat department employees prior to their trans- fer to the new facility and where the record failed to otherwise establish that any of the employees had expressed a desire to be represented by the Union for purposes of collective bargaining at the new facility The judge's decision , as affirmed by the Board only in the absence of excep- tions is not binding precedent Respondent 's argument that the General Counsel's failure to file exceptions to that decision is somehow relevant to the instant case is rejected i i This finding is independent of and in no way affects my earlier find- ings and conclusions reconfirming my original decision that the Chow- chilla meat department constituted an accretion to the overall multi-facili- ty bargaining unit Under that theory, Respondent is obligated to recog- nize and bargain with the Union independent of the after-acquired store language of the collective-bargaining agreement and independent of the sentiments of the Chowchilla meat department employees