Allied Super Markets, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1967

167 N.L.R.B. 361 (N.L.R.B. 1967)

ALLIED SUPER MARKETS, INC.
Allied Super Markets, Inc., Ailed Discount Foods
Division ' and Retail Clerks Union Local 445,
Retail Clerks International Association , AFL-CIO,
Petitioner . Case 9-RC-7205
September 8, 1967
DECISION AND DIRECTION OF
ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on April 28, 1967, before Mark
Fox, Hearing Officer of the National Labor Rela-
tions Board . Subsequent to the hearing , the parties
filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case , the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2: The Petitioner and the Intervenor2 are labor
organizations within the meaning of the Act, and
each of them claims to represent certain employees
of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2 (6) and (7) of the Act.
The Petitioner seeks an election in a unit consist-
ing of employees in the Employer 's two stores
located in Louisville , Kentucky , excluding em-
ployees who work exclusively in the meat depart-
ments. The Intervenor and the Employer contend
that agreements entered into between them bar an
election in the unit sought and that therefore the
petition does not raise a question concerning
representation . We find no merit in this contention.
The record shows that shortly after the Employer
had opened its Louisville stores, it engaged in col-
lective bargaining with the Intervenor as represent-
ative of employees at the Employer 's store in Lex-
ington , Kentucky . On March 14 , 1967,3 during the
period when this bargaining was taking place, the
Employer sent the Intervenor a letter, confirming
a prior understanding "that recognition will be ex-
' Employer 's name appears as corrected at the hearing
2 District Union Local No. 227, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, herein called the Inter-
venor , was permitted to intervene on the basis of a showing of interest
361
tended to cover employees in our Louisville, Ken-
tucky, units upon presentation of cards demonstrat-
ing majority status in these units." Later that day,
Petitioner, by telegram, informed the Employer that
it had an organizational interest in employees at the
Louisville stores. Thereafter, Petitioner, by letter
dated March 15, and apparently received by the
Employer on March 20, advised the Employer that
Petitioner represented a majority at one of the
Louisville stores, requested recognition, and sug-
gested a meeting on March 20 in order to conduct
a card check. On March 24, during the period when
Petitioner and Intervenor were competing for or-
ganization of the Louisville stores, the Employer
and the Intervenor reached an agreement on the
terms of a collective-bargaining contract covering
the Lexington store employees. On the same day
the Employer and the Intervenor executed another
agreement which stated that the terms of the Lex-
ington agreement:
... will apply to the Employer's [Louisville
stores] ... with the exception of wage rates.
Wage rates will be negotiated on the basis of
the Louisville metropolitan rates.
Thereafter, on March 27, Petitioner filed its peti-
tion covering the Louisville stores. On March 29,
the Employer conducted a card check, which
revealed that a majority of the employees in the
Employer's two Louisville stores had authorized
the Intervenor to act as their collective-bargaining
agent.
In our opinion, the foregoing fails to establish, as
the Intervenor and the Employer contend, that
either the March 14 recognition agreement or the
March 24 agreement, which referred to certain
terms of the Lexington Agreement and sought to
apply,them to the Louisville stores, bars an election
herein. Both were contingent upon Intervenor's
subsequent acquisition of majority status, which In-
tervenor failed to attain until after the filing of the
instant petition. Accordingly, we find that these
agreements are not a bar to the present petition.
Furthermore, neither of the "agreements" may be
considered a bar within the meaning of the Keller
Plastics doctrine,4 for in this case, as in Sound Con-
tractors Association,5 and unlike the situations in
which the Keller Plastics principle has been ap-
plied, "it does not affirmatively appear ... that the
Employer extended recognition to the Intervenor
in good faith on the basis of a previously demon-
strated majority and at a time when only that union
was actively engaged in organizing the unit em-
ployees." Accordingly, we find, notwithstanding
the agreements between the Employer and the In-
tervenor, that the petition was timely filed and that
a question concerning representation exists.
All dates refer to 1967
157 NLRB 583, Universal Gear Service Corporation, 157 NLRB
1169
5 162 NLRB 364.
167 NLRB No. 48
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. As stated, the Petitioner seeks a unit encom-
passing the employees at the Employer's two
Louisville stores, exclusive of employees engaged
in the meat departments. The Employer and the In-
tervenor, in urging dismissal of the petition, contend
that the only appropriate unit must include all em-
ployees, including those in the meat departments at
both Louisville locations. Further, Petitioner would
include, as employees, and the Intervenor and the
Employer would exclude, as supervisors, the store
comanager and the manager-trainee in each store.
The Board has recently held that a separate unit
of grocery employees, excluding meat department
employees, may constitute an appropriate bargain-
ing unit .6 As in other industries, the appropriateness
of such unit depends upon analysis of all relevant
factors.
Upon such analysis, we are satisfied that there
are sufficient differences between the grocery store
and meat department employees in this case to sup-
port the appropriateness of a separate unit limited
to grocery employees. Thus, the two departments
are physically and functionally separate, there is
very little interchange of employees between them,
and each is subject to separate immediate supervi-
sion . Meat department employees wear uniforms to
distinguish them from other employees, and, in
general , they have skills which differ from those of
grocery department employees. Moreover, the
general bargaining trend in the retail food store in-
dustry supports separate representation of meat and
grocery department employees. Accordingly, we
find that a unit of all full-time and regular part-time
grocery store employees, excluding meat depart-
ment employees, constitutes a separate appropriate
unit. We note, however, that although the communi-
ty of interest among all employees supports the ap-
propriateness of a storewide unit as well, no
question concerning Intervenor's representation of
meat department personnel has been raised on the
present record, and therefore no election will be
directed among that group.7 If, however, the Inter-
venor is designated by a majority of the grocery de-
partment employees in the election we direct, these
employees will continue to be represented as part
of the Intervenor's overall unit and the Regional
Director shall issue a Certification of Results of
Election.
We turn now to consider the voting eligibility of
the comanager and the manager-trainee. The record
shows that they, in conjunction with the store
manager, exercise authority with respect to the day-
to-day operation of the entire store. Each of them
receives a weekly salary rather than an hourly
wage. Neither punches a timeclock, as do rank-and-
file employees, and both are covered by an in-
surance plan which differs from the one which
covers the employees. In these circumstances, we
shall exclude the comanager and manager-trainee
on the ground that their community of interest lies
more closely with management than with the rank-
and-file employees.
On the basis of the foregoing and the entire
record in this case, we find that the following em-
ployees constitute a unit appropriate for purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full-time and regular part-time grocery store
employees at the Employer's two food stores in
Louisville, Kentucky, excluding meat department
employees, the store manager , comanager,
manager-trainee, guards, and supervisors as'defined
in the Act.
[Direction of Election8 omitted from publication.]
6 See, e g., Mock Road Super Duper, Inc, 156 NLRB 983, Priced-Less
Discount Foods, Inc , dibla Payless, 157 NLRB 1143
' Cf. Bonwit Teller, Inc, 159 NLRB 759
8 An election eligibility list, cbntammg the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 9 within 7 days after the date of this Decision and
Direction of Election The Regional Director shall make the list available
to all parties to the election. No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed. Excelsior Underwear
Inc, 156 NLRB 1236