Big Y Foods, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 860 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big Y Foods, Inc. and Local 1459, Retail Clerks Inter-
national Union, AFL-CIO, Petitioner. Case I RC
15515
September 29, 1978
DECISION ON REVIEW
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On April 13, 1978, the Acting Regional Director
for Region I issued a Decision and Direction of Elec-
tion in this proceeding in which he concluded that a
unit of employees at Employer's Springfield, Massa-
chusetts, retail liquor supermarket was appropriate.
The Employer thereafter, in accordance with Section
102.67 of the National Labor Relations Board's Rules
and Regulations, Series 8, as amended, filed a request
for review contending that the only appropriate col-
lective-bargaining unit is a single unit including em-
ployees of its three liquor markets in the Springfield
area. The Petitioner filed an opposition to the Em-
ployer's request for review.
The National Labor Relations Board granted the
request for review on May 5, 1978, and stayed the
scheduled election.
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 Employer is a Massachusetts corporation
which operates numerous retail food and three retail
liquor supermarkets in the Springfield area. This case
concerns only the Employer's liquor markets which
comprise an autonomous division within Employer's
conglomerate corporate structure. The three liquor
markets are located in Springfield, Northampton, and
Chicopee, and are respectively 7, 10. and 20 miles
from Employer's Springfield corporate headquarters.
Donald D'Amour, a corporate officer and member
of the board of directors, is ultimately responsible for
the operation of the liquor division, which is directly
managed by Roger Pineau. Local managers, who re-
port to Pineau, are responsible for the daily operation
of their respective establishments. The Employer has
implemented a uniform labor relations policy, appli-
cable to all liquor market employees, with respect to
various employee benefits, remuneration, and com-
pany regulations. Among other benefits, employees
are covered by single life and workmen's compensa-
tion insurance policies and receive indentical holiday
and sick leave benefits. All personnel and financial
records are maintained at, and all important adminis-
trative functions are performed by, the central office.
Employee compensation and payments for all mer-
chandise emanate from the central office.
Significant management decisions are the responsi-
bility of either D'Amour, Pineau, Bradford Cronin,
the Employer's controller and a vice president, or a
combination of the above-named officials. Thus, for
example, Cronin formulates labor relations practices,
D'Amour establishes personnel and merchandising
policies, and Pineau independently evaluates em-
ployee performances, recommends employee com-
pensation increases, and is responsible for all inven-
tory decisions including purchases and transfers
between locations. Only D'Amour interviews and se-
lects prospective employees. He receives Pineau's rec-
ommendations and makes final determinations. The
Employer's human resources coordinator and
D'Amour resolve employee grievances. Pineau,
whose office is located in the central office, visits each
location several times each week and may remain at a
particular market the entire day.
Local managers assign daily duties, prepare em-
ployment schedules (this function, however, is cir-
cumscribed by the central office's establishment of an
alloted number of hours for each location), receive
requests for employment condition modifications,
and are initially responsible for training new employ-
ees. Managers may initiate discipline and, when Pi-
neau is unavailable, may receive employee com-
plaints. They occasionally issue oral reprimands. But
D'Amour effectuates all disciplinary actions and only
if a complaint can be easily resolved will a store man-
ager not refer the matter to Pineau, D'Aour, or the
human resources coordinator. In instances of particu-
larly egregious employee conduct, managers refer the
matter to the Employer's security director. Finally,
managers secure replacements, contribute to but do
not prepare employee evaluations, and are respon-
sible for the implementation, at their establishment,
of company rules and regulations.
Documentary evidence submitted by the Employer
at the hearing reveals that between April 6. 1974, and
September 10, 1977, approximately 50 employees
were permanently transferred from one store to an-
other. Many of these transfers, however, involved the
same individuals, and several were between a food
and liquor supermarket. Uncontradicted testimony
establishes that temporary transfers among the liquor
markets are infrequent.
The Petitioner argues that the evidence demon-
strates that the local store managers are sufficiently
autonomous and exercise sufficient authority to sus-
tain the Board's established presumption in favor of a
single-location unit. We find, contrary to the Acting
Regional Director, that in the present case the single-
store presumption has been rebutted and find that
only a unit comprised of employees at all three liquor
markets is appropriate.
The Board has had numerous recent opportunities
238 NLRB No. 115
860
BIG Y FOODS. IN(
to consider the matter of the appropriateness of retail
store units. In Buehlers' Food Markets, Incorporated,'
relied upon by the Acting Regional Director, the
Board decided the single-location presumption had
not been adequately rebutted. There the employer
operated a chain of eight markets and a warehouse.
Local managers possessed authority to discipline but
not to discharge employees, interview prospective em-
ployees, recommend their selection or termination,
and recommend merit increases. Final selection deci-
sions were the responsibility of management person-
nel within the central office. The Board concluded
that local managers were sufficientlyb autonomous, the
degree of interchange insubstantial. and the geo-
graphic separation of the several locations sufficiently
great to compel adherence to the well-established pre-
sumption. Similarly. in Pneumo Corporation, d/h/a P
& C (Cross Co.),2 another case cited by the Acting
Regional Director, local managers exercised consider-
able authority. Each initiated all actions concerning
the selection, termination, and disciplining of employ-
ees. In addition, managers recommended promotions
and merit increases and were empowered to reject
employment applicants.
The authority of the Employer's local managers in
this case appears considerably more restricted than
that of the managers in Buellers and Pneumo. Al-
though it is apparent that the individual store manag-
ers directly supervise employees, it cannot properly
be concluded the managers significantly control or
implement terms and conditions of employment of
the liquor markets' employees. Their initiation of dis-
cipline appears confined to the mere reporting of mis-
conduct to Pineau or D'Amour or the recording of
occasional oral reprimands. When necessary. manag-
ers are empowered to procure replacements and, if
Pineau is unavailable, may receive employee com-
plaints. But the complaints, unless minor and easily
resolvable, are referred to Pineau or D'Amour. Un-
controverted testimony establishes that D'Amour is
solely responsible for the selection of prospective em-
ployees and the formulation of the Employer's per-
sonnel policies. The Employer's labor relations and
employee benefits programs are centrally adminis-
tered and all important management decisions are the
responsibility of certain corporate officials. Managers
have no authority to exercise discipline or alter an
employee's status. Nor do they possess authority to
discharge or suspend employees.
We therefore conclude that the local managers' au-
tonomy in this case is greatly circumscribed, and their
participation in personnel and labor relations matters
232 NLRB 785 (1977).
228 Nl.RB 1443 (1177)
is severely limited.' The considerable authority exer-
cised by company officials, particularly Pineau. who
frequently visits each location, and D'Amour. estab-
lishes, notwithstanding the small amount of employee
interchange among the three locations, that employ-
ees at all the liquor markets enjoy a substantial com-
munity of interest. Simply, the evidence fails to dem-
onstrate that the concerns of the employees at each
location are significantly discordant or that each mar-
ket is sufficiently independent to sustain the presump-
tive validity of the single-location unit. 4
Although the Petitioner avers that only a single-
location unit is appropriate, it has expressed a desire
to represent the unit we have determined to be appro-
priate. 5 Accordingly, in accordance with our usual
practice, we shall provide both the Petitioner and the
Intervenor a reasonable period of time, not to exceed
10 davs. from the date of this Decision on Review in
which to demonstrate the requisite showing of inter-
est among the following persons, who we find com-
prise a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act:'
All regular full-time and part-time employees
employed by the Employer at its liquor markets
located on Breckwood Boulevard. Springfield:
Memorial Drive, Chicopee: and at Hampden
Plaza. Northampton. Massachusetts, but exclud-
ing the store managers, guards, and supervisors
as defined in the Act.
Compare Super \ Drugs , illinoirn Incr. 233 Nl RB 1114 11977), with
tlagic Paln. Inc, 234 Nl RB I 1977)
' Board decisional law amply demonstrates that the presumption is not
unassailable. Super \ Drugs i Illinoir, Inc., 233 NLRB 1114 (1977} Our
dissenting colleague apparently formulates a new standard which. we sub-
mit. would require a rebuttal of Herculean dimensions The Board has neser
held or suggested that to rebut the presumption a part! must proffer 'osver-
whelming evidence . llustrating the complete submersion ot the interests
ol emplosees at the single store." nor is it necessary to show that "the sepa-
rate Interests" of the emploivees sought have been "obliterated " It these are
the applicable tests. onl, stores with common entrances and managers
wholls denuded of authorits would satisfy our colleague's stringent stan-
dard. Anarchs within a particular store neither promotes healthy customer
relations nor is it a realistic test for determining whether the presumption has
been satisfactorily rebutted
!The initial petition In this case requested a multilocation unit Flood
Handlers LUnion liocal 371. a w Amalgamated Meat ('utters and Butcher
Workmen of North America. AFL CIO, intervened The petition was subse-
quently amended to conform with the Petitioner's current position
6 In order to a;ssulre that all eligible voters may have the (opportunity to be
inftrmed of the issues in the exercise of their statutors right to sote. all
parties to the election should habe access to a list otf soters and their ad-
dresses which mas be used to communicate with them Ficelxsiwr Indmrsear
Inrs-. 156 NI.RB 123h (1966) NL. RB v. i rmann-(Gordin ( ', 394 lS 759
1969). AccordinglN, it is herebs directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters. must be filed by the
Employer with the Regional D)irector for Region I within 7 dabs of the date
of this Decision ont Review. The Regional Director shall make the list avail-
able to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraorrrdinars circumstances
Failure to compl! with this requirement shall be grounds fir setting aside the
election w hene% er proper objections are ftiled.
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER TRUESDALE, dissenting:
In my opinion, the presumption favoring the ap-
propriateness of a single store unit7 has not been suf-
ficiently rebutted in this case. Accordingly, I would
direct an election at the Breckwood Boulevard,
Springfield, Massachusetts (hereinafter Springfield),
retail liquor supermarket as requested by Petitioner.
A cardinal tenet under the Act is that a single-store
unit in a retail chainstore operation is presumptively
appropriate. This conclusion obtains because it ac-
cords employees the "fullest freedom" under the basic
statutory scheme which guides the Board in making
unit determinations. "The employees in a single retail
outlet form a homogeneous, identifiable, and distinct
group, physically separated from the employees in the
other outlets of the chain; they generally perform re-
lated functions under immediate supervision apart
from employees at other locations: and their work
functions, though parallel to, are nonetheless separate
from, the functions of employees in the other outlets.
and thus their problems and grievances are peculiarly
their own and not necessarily shared with employees
in the other outlets."' It is thus not incumbent upon a
union to demonstrate autonomy of the single-store
unit. It is sufficient that such a unit exist. Only if there
is convincing, even overwhelming, evidence in the
record illustrating the complete submersion of the in-
terests of employees at the single store can the pre-
sumption be overcome. To this end, it has been stated
that the significant factors in deciding whether the
presumption has been rebutted include: whether or
not employees perform their day-to-day work under
the immediate supervision of a local store manager
who is involved in rating employee performance, or
in performing a significant portion of the hiring and
firing of employees, and is personally involved with
the daily matters which make up their grievances and
routine problems.9
'See Sat-On Drugs, Inc., 138 NLRB 1032 (1962). Haag Drug Cornpaum.
Incorrporared. 169 NL.RB 877 (1968)1.
t Haag Drugs. .upra, 877 -878 (footnote omitted).
In its brief on review. the Employer states: "In recent )ears, the Board has
increasingly realized that the sophisticated centralization characteristic of
contemporary chain-store management has effectively removed operational
and administrative autonomy from the individual units throughout a chain
and flatl) rejected proposed single location bargaining units as inappropri-
ate. Accordingly, bargaining units composed of employees at a single loca-
lion in a retail chain-type operation have won recognition only upon a spe-
cific finding that functional integration on a multi-location basis has not
obliterated ,r negated identity of an individual unit location." This state-
lment is simply incorrect in that it turns the presumption of the appropriate-
ness of. the single-store unit on its head, pinning such a finding only on a
negation of integration. Moreover, as was stated in Haag Drugs, and which
remains no less true today, the degree of centralization vis-a-sos computeriza-
tion .and other tools and concepts relating to administration is of no impor-
tance in determining the true interests of employees in exercising their unfet-
tered rights under the Act to select representatives in an appropriate unit.
'See, e.g, Siar Market ('o., d/b/a Dan's Star Market. 172 NLRB 1393
(1968)1 Renzettii Market, Inc., 238 NLRB No. 23 (1978).
In the instant case, it is conceded that the store
manager at Springfield plays a direct role in many of
the day-to-day concerns of employees working there.
Of import is the fact that the store manager provides
"input" to employee evaluations. Further, within pa-
rameters set by the Employer, the store manager is
responsible for scheduling employees and assigning
them duties, and when there are absences, for obtain-
ing replacements. In some instances, the store man-
ager can initiate discipline and resolve simple disci-
plinary matters: he receives complaints, issues oral
reprimands, and records warnings and details of inci-
dents on forms. Moreover, the implementation of
company rules and regulations and the training of
new employees are within the store manager's respon-
sibilities.
Thus, although there are centralized administrative
practices of the Employer, it is readily apparent that
myriad day-to-day interests of the Springfield em-
ployees inhere at the local level and are handled by
the Springfield store manager. Once an employee is
hired at the Springfield store, the employee's daily
conditions of employment are controlled by a local
store manager who determines scheduling, assign-
ment, complaints, etc. Furthermore, the fact that per-
sons located in a central office make determinations
concerning hiring, firing, and wage increases does not
lead ineluctably to the conclusion, which is some-
times assumed, that the interests of the employees at
the single-store unit have been merged with those of
other stores. °0 If the presumption favoring the single-
store unit is to have any meaning, it is not incumbent
upon a union to demonstrate that the concerns of
employees are "discordant" with those of employees
at other locations; rather, the record evidence must
affirmatively show that the separate interests which
are presumed to exist at the single location have been
obliterated. For the employees at the Springfield loca-
tion, their problems and conditions of employment
relate to that store, and to this extent there is a viable
foundation for collective bargaining at that level
which has not been negated here.
Finally, it can be noted that each store is separately
incorporated and has a separate store manager. As
demonstrated, actual day-to-day supervision is not
done solely by central office officials. Nor is there sub-
stantial employee interchange which would tend to
militate against the homogeneity of the single-store
unit. There is no bargaining history on a multistore
m0 While these central office activities may in fact support the appropriate-
iess of a multistore unit, they do not compel the conclusion that such a unit
is the only appropriate unit. It is well established that a union need seek only
an appropriate unit
862
BIG Y FOODS. INC.
level here. The facts in the instant case, measured
against the proper criteria, show, in my opinion, that
the presumptive appropriateness of the single-store
unit has not been rebutted. Accordingly, for the rea-
sons set forth above, I concur in the result reached by
the Acting Regional Director, and would direct an
election in a unit comprising the employees at the
Employer's Springfield liquor supermarket.
863