First National Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1946

68 N.L.R.B. 539 (N.L.R.B. 1946)

In the Matter of FIRST NATIONAL STORES, INC and AMALGAMATED
MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL
489, AFL
In the Matter of FIRST NATIONAL STORES, INC and RETAIL FOOD
CLERKS' UNION, LOCAL 1500, AFL
Cases Nos. 2-R-6131 and 2-R-6132 , respectively.-
Decided June 11, 1946
Mr. Edward E. Kuypers, of Somerville, Mass., for the Company.
Mr. Moss K. Shenck, of New York City, for the Amalgamated.
Mr. Arnold Cohen, of New York City, for the Retail Clerks.
Mr. Warren H. Leland, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon separate petitions duly filed by Amalgamated Meat Cutters &
Butcher Workmen of North America, Local 489, AFL, herein called
the Amalgamated, and Retail Food Clerks' Union, Local 1500,
AFL, herein called the Retail Clerks, alleging that questions affecting
commerce had arisen concerning the representation of employees of First
National Stores, Inc., Somerville, Massachusetts, herein called the Com-
pany, the National Labor Relations Board consolidated the cases and
provided for an appropriate hearing upon due notice before Robert
Silagi, Trial Examiner. The hearing was held at New York City on
April 23, 1946. The Company, the Amalgamated, and the Retail Clerks
appeared and participated. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded opportunity to file briefs with the Board.
68 N. L. R. B, No 77
539
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
First National Stores, Inc., a Massachusetts corporation, maintaining
its principal office in Somerville , Massachusetts , is engaged in the oper-
ation of retail chain food stores , located throughout the New England
States and the State of New York. This proceeding is concerned solely
with the Company's stores located in Westchester County, New York.
During 1945, the Company caused to be purchased, transported, and
delivered to its stores located in Westchester County, New York, food
products and merchandise exceeding $1,000,000 in value , of which ap-
proximately 75 percent was shipped from points located outside the
State of New York.
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.'
II. THE ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of North America,
Local 489; and Retail Food Clerks' Union, Local 1500, are labor or-
ganizations affiliated with the American Federation of Labor, admitting
to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Amalgamated or
the Retail Clerks as exclusive bargaining representative of certain of
its employees until either one is certified by the Board in an appropriate
unit.
We find that questions affecting commerce have arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
The Retail Clerks seeks a single unit of all managers,2 produce, dairy,
grocery and stock clerks, checkers and cashiers, and store superintendents
employed in food stores and markets owned and operated by the Com-
' We have alrea-' y asserted jurisdiction over the Company 's Providence Division operations. See
Matter of First National Stores, Inc. (Providence Division ), 66 N L. R B. 1419.
1 It is clear from the record that the managers are not supervisory employees within the
meaning of our customary definition.
FIRST NATIONAL STORES, INC. 541
pany in Westchester County, New York; in the alternative it requests
one unit composed of the foregoing employees, excluding store super-
intendents, and another composed exclusively of the store superin-
tendents. The Amalgamated agrees with the alternative contention of
the Retail Clerks. And the Company also agrees with this alternative
position, but would also include in the unit of store superintendents,
all supervisors and assistant supervisors who work in and out of the
Hartford Divisional Office.
The record discloses that the Company's 16 stores in Westchester
County are administered through its Hartford, Connecticut, Divisional
Office, which also encompasses all stores in New York, Connecticut,
and part of Massachusetts. The Hartford Division is headed by a vice
president, under whom are 2 sales managers in charge of meat and
groceries, respecjively. Next in the supervisory hierarchy are approxi-
rnately 10 supervisors ; and under the supervisors are approximately
100 assistant supervisors. Preparatory to converting all its stores to
major super-market, self-service operations, the Company devised a
new method of supervision and thus, in the early part of April 1946.
created the position of store superintendent. Prior thereto, each store
operated under dual supervision in that the manager of the meat de-
partment had charge of the activities in his department, and the grocery
manager directed the activities of the balance of the store. In April
1946, the Company designated one of the 2 managers, generally the
grocery manager, as store superintendent and turned over to him com-
plete supervision of the store. Other employees are now being placed
in the departmental manager positions from which the store superin-
tendents were promoted.
With the new title went many additional duties and responsibilities
and a concomitant increase in pay. Whereas managers were paid and
still receive from $55 to $70 weekly, depending upon the volume of
business in their stores, store superintendents receive $75 to $90 weekly,
and above. Moreover, the pay of a store superintendent is not subject to
deduction in case of absence from work as is the manager's. Store super-
intendents are responsible for the profitable operations of their stores
and the receipt, safekeeping, and display of merchandise. While the
ceiling price of merchandise is fixed by OPA, store superintendents
have authority to reduce prices on certain types of foods. Unlike man-
agers, the store superintendents do not engage in any of the manual
work necessary to run the store; all their time is devoted to supervising
and training their subordinates. Under the old system of supervision,
personnel matters were handled by the assistant supervisors or super-
visors. However, this function has now been delegated to the store
superintendents. It is clear from the record that store superintendents
have authority to hire, discharge or discipline subordinates employed in
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the stores which they supervise. From these circumstances, it is clear
that the store superintendents are supervisory employees within the
meaning of our customary definition. In accordance with our usual
practice, therefore, we shall not include store superintendents in the
same unit with the remaining employees sought by both unions. Instead
we shall establish two separate units, one of non-supervisory workers,
and the other of supervisory employees.
There remains for consideration the composition of the supervisory
unit.3 As noted above, the Company would add to a unit including
superintendents of stores located in Westchester County, New York,
approximately 10 supervisors and 100 assistant supervisors working
out of the Hartford Divisional Office. It is the duty of the supervisors
and assistant supervisors to visit all the stores administered by the
Hartford Division. They check the volume of business, the display and
general merchandising of the stores, and assure that company policy
is followed by its personnel. Their office is in Hartford, Connecticut
None of the supervisors or assistant supervisors are permanently as-
signed to duty in Westchester County, and no more than 2 supervisors
and 4 or 5 assistant supervisors are in the Westchester area at any given
time; they visit approximately 1,000 stores administered by the Hart-
ford Division and the bulk of their individual and collective time is spent
in areas outside Westchester County.
Significantly, the Company agrees that the unit should exclude super-
intendents of stores located outside Westchester County, but would never-
theless include higher levels of supervisors whose duties are not confined
to Westchester County. Moreover, there are no supervisors or assistant
supervisors who can be considered as allocated to Westchester County
Another factor which is unfavorable to the Company's position is the
agreement of all parties that the unit of non-supervisory employees should
be restricted to the Westchester County area. We note, furthermore, that
both unions have limited their organizational activities among the Com-
pany's supervisory employees to the store superintendent level. For these
reasons, we shall exclude the supervisors and assistant supervisors from
the unit of supervisory personnel.
We find that the following units are appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
(1) All managers, produce, dairy, grocery and stock clerks, checkers
and cashiers, employed in food stores and markets owned and operated
by the Company in Westchester County, New York, excluding butchers,
part-time employees, office and clerical workers, stock takers, executives,'
8 That the same union may represent supervisory and non-supervisory employees of a single
employer is now well settled See Matter of Curtis Bay Towing Company, et at, 66 N. L. R R,
1152.
4 The foregoing exclusion have been agreed upon by all parties,
FIRST NATIONAL STORES, INC. 543
supervisors , assistant supervisors , store superintendents , and all other
supervisory employees with authority to hire, promote , discharge, dis-
cipline, or otherwise effect changes in the status of employees , or effec-
tively recommend such action ;
(2) All store superintendents employed in food stores and markets
owned and operated by the Company in Westchester County, New York,
excluding executives , supervisors and assistant supervisors.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which have
arisen be resolved by separate elections by select ballot among employees
in the appropriate units who were employed during the pay-roll period
immediately preceding the date of the Direction of Elections herein, sub-
ject to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations - Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with First National Stores,
Inc., Somerville , Massachusetts, separate elections by secret ballot shall
be conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision of
the Regional Director for the Second Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among em-
ployees in the units found appropriate in Section IV, above, who were
employed during the pay-roll period immediately preceding the date of
this Direction, including employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those employees
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the elections, to determine
whether they desire to be represented by Amalgamated Meat Cutters
Butcher Workmen of North America, Local 489, AFL, or by Retail
Food Clerks' Union, Local 1500, AFL, for the purposes of collective
bargaining, or by neither.
MR. GERARD D. REILLY, concurring in part, and dissenting in part :
I concur in that part of the majority opinion which establishes a unit
of rank and file workers. However, for the reasons stated in my
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dissenting opinions in Matter of Packard Motor Car Company, 61
N. L. R. B. 4, and Matter of Jone. & Laughlin Steel Corporation, 66
N. L. R. B. 386, I am constrained to dissent from the majority opinion
herein insofar as a unit of store superintendents is found appropriate.