Big Way Super Market

National Labor Relations Board - Board Decisions

Sep 30, 1976

226 N.L.R.B. 180 (N.L.R.B. 1976)

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