Big Y Foods, Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 29, 1978238 N.L.R.B. 855 (N.L.R.B. 1978) Copy Citation BIG Y FOODS, IN(' Big Y Foods, Inc.' and Retail Store Employees Union, Local 1459, Retail Clerks International Association, AFL-CIO,2 Petitioner and Amalgamated Meat Cutters, Food Store and Allied Workers of North America, Local Union 33, a/w Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO3 Petitioner. Cases I RC-11708 and I RC- 14664 September 29. 1978 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN FANNING ANi) MEMBIIRS JENKINS. PENI.I I 0, AND TRII SI)AI. I On August 16. 1971, Retail Clerks filed a petition in Case I RC 11708 seeking to represent certain em- ployees of the Employer. On August 16. 1976. Meat Cutters filed a petition in Case I RC 14664. also seeking to represent certain employees of the Em- ployer. Thereafter, pursuant to the direction of the Regional Director for Region 1, a hearing was held before Hearing Officer Robert A. Pulcini on October 20 and 22, November 2 and 3. and December 3, 1976, on the two petitions. Following the hearing and pur- suant to Section 102.67 of the National Labor Rela- tions Board's Rules and Regulations. the Regional Director transferred Cases I-RC 11708 and I -RC-- 14664 to the Board for decision. The Employer and the Petitioners thereafter filed briefs which the Board has received and has considered along with the entire record in this case. The Board has reviewed the Hearing Officer's rul- ings at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record, the Board finds: I. The parties stipulated that the Employer is a Massachusetts corporation engaged at its various places of business in westerm Massachusetts in the operation of grocery stores. During a I-Near repre- sentative period, the Employer received gross rev- enues in excess of $500,000 and purchased and re- ceived goods valued in excess of $50,000 directly from sources located outside the Commonwealth of Massa- chusetts. We therefore find that the Employer is en- gaged in commerce within the meaning of the Act. 2. The parties stipulated, and wre find, that the Pe- titioners are labor organizations within the meaning of the Act and that they claim to represent certain employees of the Employer. 3. We find that a question concerning the represen- I'he namen o the I mlnloer a.ppea., r s amended at the hearing. I'he nar ic t' Petitliner appears .is ;iatendedf at tle hearinig Ihls peti ioner is hereinafter rellerred i as Retiil (Clerks ' lereinllfter referred to as NMe. ( Cutters tation of certain employees of the Employer exists within the meaning of Section 9(c)( 1) and Section 2(6) and (7) of the Act. 4. Retail Clerks seeks a unit of all full-time and regular part-time employees at the Employer's unrep- resented stores, but excluding all office clerical em- ployees. professional employees. guards. and supervi- sors as defined in the Act. Meat Cutters on the other hand seeks a unit of all meat department employees employed at the Employer's unrepresented stores, but excluding all other employees, office clericals, profes- sional employees, guards, and supervisors as defined in the Act. The Employer contends that only the overall unit sought by Retail Clerks is appropriate. 4 Background The Employer operates a chain of 16 retail food stores. Eleven of these stores, employing approxi- mately 850 to 900 people. are inNolved in the instant proceedings. The Employer's five remaining stores 4The Fmploser aInd Meal ('ulters also contend that Retail Clerks petition for that ninit should he dismissed because that I nion obtained its showing of interest in 1971 at a time: I i prior to a substantial expansion in the l nimplo er's work lorce. and (2) when the tEmploser employed a substantially differ- ent group of eniplosees We find no merit in the contention The showing of interest requirement is an administrative devsice designed on the one halnd to effectuate employee free choice through the running ot representation elec- tions while. on the other hand, also conserving the limited resources a.ail- able to the Agency by insuring that a significant number of employees actu- ally desire to participate in such elections. See Board Rules and Regulations and Statements of Procedure, Series 8, as amended, Sec 1011 18(a) We hase frequentls stated that a showing of interest is required not in order to prove the precise number of employees who desire to he represented b) a labor organization,. but rather to) furnish a safeguard against the indiscriminate institution of represeitaltion proceedings hbs labor organizations which have little or no support in the petitioned-for unit. Ialance & Grlsjean Manulfac- uring ('o.. 63 N RB 132 (1945): Tampa Shipbuilding ( onpanr, Incorporated. 62 NLRB 954 (1945); H C Hill Stores, Inc Hlarehou.e, 39 NL RB 874 (1942); (Ciltes Seriiie Oil Cnrpian, 38 Nl RB 1055 (1942) Thus. since the question of a showing of interest is entirely an administrative matter, it is not subject to litigtlion by the pairties. Knox Glars Bottle ('nompani. 101 Nl RB 36 (1952r: F ; Sitkle Ct.nytui 81 NL RB 390 (1949) (0 D. Jennings & Companv. 68 NlRB 516 (1946) In the instant case, the Regional [)irector held the prtcessing of the 1971 petition in ahbeNance vhile unfair labor practice charges which Retail Clerks had filed ;Ig.linst the Eimployer and Meat ('utters were resolsed Thereafter. an Administratise l.aw Judge found that the [ mployer and Meat Cutters had, in tact, committed unfair labor practices. Thus. the dela, in the process- ing of the pelition was not the fault of Retail Clerks. Rather, the Emploser, in part. caused the dela 5 and no'w seeks to ha:ve Retail C(lerks' showing of interest Ins alidated essentially because of this delay. See I /lkin Foundry & ,Iachine (C'rnparn. 83 NI.RB 768 (1949) As we noted in resiponse to a contention concerning stale .uthorization cards in Generll D nanmi (C',rp>- ruatin. (C'ronviir Dlvimi n,n 17$ NI RB 1035 (1969). "Such an attack has no hearing on the s;lidihty o, the original showing but merels raises the question is to) whether particular emplosees have changed their nilnds about union representation 1'hal question can best he resolved on the baisls ,) an election hvby secret ballot" Id at 1(135 Based on this precedent and the particul.ir tlcI\s in this case. we conclude that the purposes o1' the stlatue will best he effectuated hb rejecting the contention raised with respect to the staleness of the authorization cardB s Ihus, we find thalt once emiplroees have expressed an interest in hasing an election. Ithe should not be depriled oif an electilrn or be required to repro,se their showing of interest because ot delis resultng froim an emploNer's com- missoltn ot ilntlir l.abor priatlces 238 NL.RB No. 114 855 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are already organized by Meat Cutters in an overall employee unit. On August 16, 1971. Retail Clerks filed a petition to represent certain employees at the Employer's un- organized stores. The Regional Director did not pro- cess the petition of Retail Clerks at that time because Retail Clerks also filed unfair labor practice charges against both the Employer and Meat Cutters based on an allegedly improper recognition extended by the Employer to the Meat Cutters on August 13, 1971. After a hearing on those charges, an Administrative Law Judge found that the Employer and Meat Cut- ters had, in fact, violated the Act and ordered that the recognition agreement be terminated. Apparently, in early 1976, the parties resolved matters stemming from that case, and Meat Cutters thereupon filed its present petition. A hearing was thereafter held on both petitions. Facts The record indicates that the Employer's entire chain is centrally operated. Thus, personnel policies are developed and administered by the central office. Full-time employees are hired by the central office. All stores have the same job classifications (i.e.. store managers, department managers, head meatcutters, meatcutters, wrappers, and clerks) which cover the same job functions. Each store is divided into five departments-front-end, grocery, meat, delicatessen, and produce. The central office employs specialists for each de- partment who not only coordinate purchasing, but also visit the stores in order to supervise merchandis- ing and, in general, oversee the operation of the var- ious departments. In this latter respect, these special- ists work in conjunction with the store managers. All employees receive the same fringe benefits such as holidays, life and health insurance, rest periods, sick leave, and funeral pay. Payroll checks are cen- trally prepared. All employees have common working hours, i.e., all stores open at 7:30 a.m. and close at 10 p.m., and all employees sign timesheets. The record indicates that interdepartmental transfers, both tem- porary and permanent, do occur and that certain meat department personnel have been involved in these transfers. Notwithstanding these factors which would appear to militate in favor of an overall employee unit, it is well settled that a separate meat department unit is 5 Meat Cutters had represented the employees of these five stores at the time of their acquisition by the Employer in 1968 in the overall unit and has continued to represent the employees there. The storeswide unit there ex- cludes the department heads and security receivers whose status is in dispute here. See infra. presumptively appropriate.6 In order to determine whether the presumption survives or is rebutted on a particular set of facts, a number of factors must be considered. In this regard, the instant record indicates that the meat department is the only department within each store that has a formal apprenticeship program. Pursuant to this plan employees, a number of whom began as meat clerks, are trained as meat- cutters primarily by on-the-job training for which the meat department manager is responsible. The job progression that obtains as a result of this training arrangement is that an apprentice meatcutter be- comes a meatcutter and then potentially a head meat- cutter. These positions receive higher wages than any other classifications that are found in the overall unit. Specifically, an apprentice meatcutter receives $246 per week, whereas all beginning clerks receive $160 per week. After completing the 2-year apprenticeship, a meatcutter is paid $286 per week, while a clerk re- ceives a maximum of $220 per week after completing 3 years' employment. This significant pay differential and the apprenticeship program itself are indicative of the higher level of skill that is required to perform the job of meatcutter. This level of skill is reinforced by the exclusion of the meatcutters from the Employ- er's storewide policy of cross-training personnel to work in other departments. The record also indicates that the meatcutters do not receive either temporary or permanent transfers to other departments. In fact, no permanent transfers occurred for meatcutters dur- ing 1974, 1975, or 1976. Furthermore, it is clear that the meatcutters spend nearly all of their time in the cutting room preparing products for wrapping and eventual display. As a result, the meatcutters have almost no contact with other employees in the store except for meat clerks with whom they are in con- stant contact. Further examination of the record reveals that the work of the meat clerks is closely integrated with that of the meatcutters. Meat clerks are responsible for cleaning the various pieces of equipment employed in preparing meat products and also engage in certain activities directly involved in processing meat; i.e., grinding hamburger meat and cutting chickens. In addition, meat clerks are responsible for wrapping meat; taking requests from customers for special cuts of meat; supplying the cutters with raw product; and stocking the display area with meat merchandise. While there is some evidence of interchange be- tween meat clerks and personnel in the other four areas of the stores, it is minimal at best and generally occurs on an emergency basis; i.e., if the front end 'See, e.g., Qua/it) Markets, Inc., 129 NLRB 904 (1960); Hv-l'ee Food Stores, Inc.. 176 NL.RB 54. 60 (1969), and cases cited therein. 856 BIG Y FOODS. INC. needs additional personnel to assist in checking out customers, meat clerks may be temporarily trans- ferred to such duty. As the duties of the meat clerks keep them primarily in the meat processing area, there is only limited interaction with store employees outside the meat department. The record also indi- cates that permanent transfers of meat clerks 7 to other areas of the store are relatively infrequent and that it is not uncommon for a meat department clerk who has been transferred to be reassigned to the meat de- partment shortly thereafter. 8 The Employer asserts that the bargaining history between it and Meat Cutters at the five represented stores should be controlling here. The bargaining units at those facilities, as previously noted, encom- pass all store employees, including those in the meat department. Contrary to the Employer, the concept of "bargaining history," when discussed in the con- text of determining the appropriateness of a bargain- ing unit, refers to the past bargaining relationship be- tween the employer and the employees described in the immediate petition.' As the employees involved herein have never been represented for the purposes of collective bargaining by any labor organization, there is no applicable "bargaining history" on which the Employer can rely in support of its contention. The Employer also notes that Meat Cutters represen- tation of storewide units at other companies within the western Massachusetts area evidences its recogni- tion of the appropriateness of a storewide unit. Again we find this factor irrelevant to the instant proceeding as the admitted appropriateness of a storewide unit at one facility in no way diminishes the historic appro- priateness of a unit consisting solely of meat depart- ment employees. And we likewise reject the Employ- er's argument that Meat Cutters current petition is obviously based solely on its extent of organization, since a petition it filed in 1974 (Case I-RC 13329) sought a storewide unit. In consideration of the foregoing, we find that the Employer has failed to rebut the presumptive appro- priateness of a meat department unit. We find, there- fore, that the meat department employees at the Em- ployer's 11 unrepresented stores, including the head meatcutters, meatcutters, apprentice meatcutters, and meat clerks and wrappers, may constitute an appro- 7 The Employer defines "permanent" transfers as those involving an an- ticipated penod of approximately 4 weeks or longer in a new location. 8 As noted in Emp. Exh, 6, in 1974 five meat clerks were "permanently" transferred to other departments; in 1975 the same number were transferred; and in part of 1976 there were 25 such transfers. The number of "perma- nent" transfers into the meat department brought the transfer totals to 31, 46, and 47 tor the years 1974. 1975. and 1976. respectively. There are, how- ever, about 900 employees working in the stores ait issue here. 'See, e.g. V ilier& fMiller .Molor Freight inc.s, 101 NLRB 581 (1952). and North Ameriran Rock.ell Corporation., erospace & S.stemT Operation (Los 4ngeles Dilision), 193 NI.RB 985 (19711. priate unit"' for the purposes of collective bargain- ing. " We also find, however, that the meat department employees share certain common interests with the other employees at the Employer's 11 unrepresented stores and that a storeswide unit, including the meat department employees, would therefore also be ap- propriate.'2 Accordingly,. we make no final unit deter- mination at this time, but we shall first ascertain the desires of the employees as expressed in the elections directed below. There remain for consideration various issues con- cerning the placement of certain groups of employees whose status is in dispute. Department Managers The Employer claims that the department manag- ers are supervisors, while Retail Clerks claims they are employees under the Act.' 3 The record indicates that there are five classifica- tions of department managers at each store: namely, produce manager, delicatessen manager, grocery manager, front-end manager, and meat manager. In determining whether these positions are supervisory within the meaning of Section 2(11) of the Act, we focus on the actual responsibilities that are assigned to the individuals who occupy these positions and not on their job titles.'4 In the case of the produce department manager and delicatessen department manager, the record in- dicates that their respective "departments" are quite small. The record does not indicate whether any other employees, either full- or part-time, are present when these managers are at work. To the extent that these managers prepare the work schedule for the part-tim- ers who work when the department managers are not present, that responsibility appears to be routine and ministerial. The record does reveal that these manag- ers may participate in the disciplining of unit employ- IO We note that in the Board's earlier decision involving the same Em- ployer (161 NLRB 1263 (1966)), the Board also found a separate meat de- partment unit appropnate However, in reaching our decislon here, we have not relied on our earlier decision. but rather we have examined the instant record and, based on the facts therein, have reached the conclusion we have set out herein. 11 In accordance with our decisions in Bell & Howell Company. 230 NLRB 420 (1977), and Handv .4nds. Inc., 228 NLRB 447 (1976), we reject Retail Clerks' contention that Meat ('utters unit request would "solidif I[thel ap- parently discriminatory pattern" of the alleged exclusion of women from certain positions in the meat department. Member Jenkins, agreeing with the result. does not rely on the cases cited. 12 See, e.g., Bruno'T Food Store. Incorporated. 131 NLRB 1023. 1025 (1961). 1 Meat (utters took the position that the meat department manager waus a supervisor under the Act and expressed no view on the status of the other department managers here at issue. I' See, e.g., N'.L R.B. v. Southern Bleachers & Print Sork.s, Insa, 257 F12d 235 (C.A 4, 1958): and loaa Southern Utilities ('ompan, 207 NI.RB 341. 344 11973) 857 DE8(ISIONS OF NATIONAL LABOR RELATIONS BOARD ees, as, on one occasion, a delicatessen manager was involved in the discharge of an employee who had tailed to report for work. Although the Employer ar- gues that these department managers are responsible for decisions concerning their respective products and the profitability of each department, the record indi- cates that the central office department specialists are primarily responsible for such functions. Neverthe- less, based on the record before us, we are unable to decide whether the produce department managers and the delicatessen department managers are super- visors under the Act. Accordingly, we shall direct that these department managers vote subject to challenge in the storeswide voting group. The record is also unclear with respect to the super- visory status of' the grocery department managers. As a result, we shall also direct that the grocery depart- ment managers vote subject to challenge in the storeswide voting group. In contrast, the record contains evidence that the meat department managers and the front-end manag- ers responsibly direct a significant number of employ- ees in their departments. The meat department man- agers supervise the head meatcutters, the meatcutters, the apprentice meatcutters, and the clerks. These managers impose discipline: interview prospective employees: adjust grievances: attend supervisory meetings; and prepare schedules. Similarly, the front- end managers oversee the cashiers: summon addi- tional employees from other parts of the stores when help is needed to package customers' purchases: and discipline employees regarding shortages. Based on these factors, it is clear that the meat department managers and the front-end managers ac- tually perform supervisory functions within the meaning of Section 2(11) of the Act. Therefore, these positions will be excluded from the voting groups.' Security Receivers There is a dispute concerning the status of the secu- rity receivers. The Employer contends that they are guards and that, pursuant to Section 9(b)(3) of' the Act, they may not be included in any unit sought by the Petitioners.'6 Retail Clerks argues that the secu- " While the E mployer claims that all department managers are supervi- sors by virtue of our finding such status in Big Y} Superimarkets, 161 NI.RB 1263, 1268 (1966), we have determined the department managers' status based on the present record before us 6 Sec. 9(b)(3) of the Act states in relevant part: (b) Ihe Board shall decide in each case whether, in order tii assure to employees the fullest freedoml in exercising the rights guaranteed by this Act, the unit appropriate flir the purposes of collective bargaining shall he the employer unit, cratt unit, plant unit. or subdivision thereof: Pr,- iuded, Ihat the Board shall not. (3) decide that any unit is appripri- aite mor such purposes it it includes. together with other employees, any individual emplorsed as a guard to enforce against eniplioees and other persons rules to protectl properts of the employer or toi protect the safety iof persons on the enmploer's premises . rity receivers are not guards and may appropriately be included in the unit it seeks. The record indicates that the security receivers spend approximately 60-70 percent of their time ac- tually receiving goods. This involves determining the quantity of each item that the store receives each week and completing a computer form with that in- formation. There is a dearth of testimony about the receivers' activities during the remaining time at work. The Employer's vice president, who provided the 60 70 percent time figure, failed to describe ex- actly what the security receivers do during their re- maining time at work. In contrast, a meatcutter who was (and had been) employed at several of the Em- ployer's stores testified without contradiction that he has observed the security receivers performing such tasks as opening and pricing goods, sweeping and washing floors, pulling cardboards from shelves, and picking up carriages from the parking lots, in addition to delivering and recording merchandise. The security receivers are not uniformed or armed, do not wear badges, and do not have special police powers. While security receivers are paid according to a separate wage schedule, they receive wages comparable to those of clerks and they have the same benefits as clerks. The Employer engages an outside security ser- vice to provide traditional guard functions, such as surveillance related to shoplifting and parking lot checks during the business day, as well as at night and on Sundays. This outside security service also has responsibility for apprehending employees suspected of thefts. In view of the above, we find that the secu- rity receivers are not guards within the meaning of Section 9(b)(3) of the Act and, therefore, they will be included in the storeswide voting group. Bookkeepers Finally. there is disagreement whether the book- keepers in each store should be included in the storeswide voting group. The Employer would ex- clude them and Retail Clerks would include them. The record indicates that each store has a courtesy booth where the bookkeeper works along with a "booth person," but each in separate rooms. The bookkeepers receive the same pay and benefits as cashiers. Some of the stores have trained a regular cashier to serve as backup bookkeeper whenever the regular bookkeeper is absent. Bookkeepers wear the same smocks as cashiers and they occasionally substi- tute for the cashiers. Job progression is normally from cashier to bookkeeper. Bookkeepers take their breaks in the same area as other employees and they report to the store manager fior supervision; technical prob- lems are handled over the telephone by the main of- fice. Their primary responsibility is to handle money 858 BIG Y FOODS, INC. and process the lottery tickets and money orders that are received by the front end of the store. Thev must also be familiar with the operation of a cash register. The Employer contends that these employees pri- marily perform an accounting function since they are responsible for maintaining the financial records for each store. In this respect, the Employer stresses the clerical nature of the bookkeepers' job and argues that they should be excluded from the unit.'7 Retail Clerks, however, argues that the bookkeepers are merely senior experienced cashiers and booth persons who are responsible for one facet of front-end duties. In consideration of the above evidence, we find that since the bookkeepers work in close proximity to other employees included in the unit especially those in the front-end department-and since their wages, hours, and conditions of employment are es- sentially the same as those of the other store employ- ees, the bookkeepers share a sufficient community of interest to warrant their inclusion in the storeswide voting group. On the basis of the foregoing, and on the record as a whole, we find that the meat department employees constitute a separate voting group with an identifiable community of interest, a finding that comports with past precedent. We shall, therefore, give the meat de- partment employees a self-determination election to ascertain whether or not they desire to be represented separately by Meat Cutters. We find that the following employees of the Em- ployer may constitute units appropriate fIor the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: (A) All meat department employees including head meatcutters, meatcutters. apprentice meatcutters, meat clerks, and meatwrappers at the Employer's 11 unrepresented stores lo- cated in the following cities in the Common- wealth of Massachusetts: Fairview. Chicopee, Northampton, Holyoke, Westfield, Agawam, Longmeadow, Springfield (2), Ludlow, and Palmer: but excluding all other employees, store managers. front-end department manag- ers, meat department managers, office cleri- cals, professional employees, guards. and su- pervisors as defined in the Act. (B) All full-time and regular part-time employ- ees at the Employer's II unrepresented stores Ii Retail Clerks petitlon would exclude office clerical employees friom the unit it seeks. located in the following cities in the Common- wealth of Massachusetts: Fairview. Chicopee, Northampton. Holyoke, Westfield. Agawam. Longmeadow. Springfield(2). I udlow. and Palmer, including all clerks, cashiers, security receivers. and bookkeepers: but excluding all head meatcutters. meatcutters, apprentice meatcutters, meat clerks, and meatwrappers, store managers, front-end department manag- ers, meat department managers. and all other supervisors, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. Employees in voting group A shall vote whether they desire to be represented by Meat Cutters, Retail clerks, or no union. Employees in voting group B shall vote whether or not they desire to be represent- ed by Retail Clerks. If a majority of the employees in voting group A select Meat Cutters. they shall be deemed to have indicated their desire to constitute a separate bargain- ing unit, and the Regional Director shall issue a certi- fication of representative for such group, which the Board, under the circumstances. finds to be an appro- priate unit tor collective bargaining. If a majority of voting group A do not vote for separate representa- tion, that group shall appropriately be included in the overall unit and the appropriate certificaton shall is- sue after their votes are pooled with those of the em- ployees in voting group B.'? which, under these cir- cumstances, the Board finds to be a single appropriate unit for collective bargaining. If, in the event of separate meat department repre- sentation, a majority of the employees in voting group B elect to be represented by Retail Clerks, then a certification of representative shall issue for an ap- propriate unit of "all full-time and regular part-time employees" excluding the meat department unit which. under these circumstances, the Board finds to be a single appropriate unit for collective bargaining. If a majority of the employees in the pooled group cast their ballots for no union. a certification of re- sults of election shall issue. [Direction of Election and Ercelsior footnote omitted from publication.] is The votes shall he p~oiled as tfollows: sotes fir Meat Cutters shall be counted ass alid sotes. hut neither for nor against the other choices. All other votes are to he aiccorded their face .alue. whether for representation hv Retail ( lerks. oir for no union 859 Copy with citationCopy as parenthetical citation