Food Marts, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 18 (N.L.R.B. 1972)

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Food Marts, Inc. and Retail Clerks International
Association, Retail Store Employees Union, Local
1459, AFL-CIO 1, Petitioner and Local 33, Amalga-
mated Meat Cutters and Butcher Workmen of
North America, AFL-CIO 2, Petitioner. Cases
1-RC-9986, 1-RC-10042, 1-RC-10097, and
1-RC-12112
November 7, 1972
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Robert N.
Garner. Following the hearing, and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, by direction of the
Regional Director for Region 1, the case was
transferred to the Board for decision. Thereafter, the
Employer filed a brief with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
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 labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The Retail Clerks seeks separate units for three
of the Employer's stores. The Employer contends
that only a single unit of the three stores is
appropriate. The Meat Cutters also seeks a three-
store unit.
The Employer is a Massachusetts corporation
engaged in the operation of a chain of 19 retail food
1 The Retail Clerks intervened in Case 1-RC-12112 on the basis of a
showing of interest
2 The Meat Cutters intervened in Cases 1-RC-9986, 1-RC-10042, and
1-RC-10097 on the basis of a showing of interest
3 In 1968, the Meat Cutters sought to represent the employees in all the
Employer's stores The Retail Clerks sought representation of only the
employees in the Fairview , Agawam, and Belmont Avenue stores, the meat
and delicatessen department employees in all the stores were already
stores in Massachusetts and Connecticut, with the
central office in Holyoke, Massachusetts. All the
stores in Massachusetts and the one in Enfield,
Connecticut are within a 14-mile radius of the central
office and are under the supervision of the district
manager for Massachusetts. The three stores in
question here are located in Agawam, Fairview, and
on Belmont Avenue in Springfield. The Agawam and
Belmont Avenue stores are .3 miles apart; the
Fairview store is 5 miles from the Belmont Avenue
store.3
The administration of the stores is centrally
controlled at the main office in Holyoke. At the
central office, corporate policy for the whole chain is
formulated. The vice president-treasurer, who is also
the director of personnel, is responsible for all the
administrative and financial operations, including all
the accounting procedures, labor relations, contract
administration, expense control, and wage and
benefit administration. He is responsible for the
hiring of all full-time and permanent employees and
must approve the hiring of part-time employees.at
the stores as well as wage increases and promotions.
He also investigates and acts on all disciplinary
action taken by the local store or department
managers.
The director of store operations has the responsi-
bility for implementation of the merchandising,
mechanical, and maintenance and repair programs.
Under him are two district managers, each having
authority over one of the two divisions of the
Employer.
Three directors of operations have the responsibili-
ty for the purchasing, pricing, and shipping of
merchandise for three departments within the stores
-produce, grocery, and meat. Under the directors of
operations are the road supervisors, who spend
almost all their time in the stores ensuring that
company policies relating to merchandising are
effectuated in the individual departments of each
store.
Seniority is on a companywide basis, based on an
employee's continuous length of service in the
employ of the Employer. The seniority lists, which
are maintained at the central office, are used in
determining promotions, layoffs, and vacation sched-
ules.
With respect to transfer of employees among the
stores in question, there are both permanent and
represented by the Meat Cutters While a Board hearing to determine the
question of representation was in adjournment , the Employer recognized
the Meat Cutters as the bargaining representative for all its stores'
employees The Board later found in Holyoke Food Mart, Inc, 191 NLRB
No 94, that the Employer had thus violated Sec. 8 (a)(2) of the Act and
therefore ordered it to withdraw recognition of the Meat Cutters, in the
three stores in question , as the representative of the employees involved in
this case.
200 NLRB No. 5
FOOD MARTS 19
temporary transfers, which are usually determined by
the road supervisor. Permanent transfers are made
because of prolonged illness, termination, or promo-
tion. Temporary transfers are made to fill temporary
vacancies.
At each store, there is a manager who is responsible
for the day-to-day operation of the store, including
the opening and closing of the store, customer
relations within the store, the condition of equipment
within the store, repairs and maintenance within the
store, the cleanliness of the store, and the security
and safety of the money and merchandise within the
store. The store manager makes the initial decision to
hire part-time employees, but that decision has to be
approved by the director of personnel. The store
manager does not have the authority to discharge.
He may suspend an employee, pending an investiga-
tion and final action by the director of personnel.
The central office determines the budget for each
store on the basis of which the district manager in
conjunction with the store manager and department
managers determine the scheduling of work.
The Board has held, with respect to retail chain
operations, that a "single store unit is presumptively
appropriate absent a bargaining history in a more
comprehensive unit or a functional integration so
severe as to negate the identity of a . . . single-store
unit." 4 The presumption may be rebutted where it is
shown that the day-to-day interests of employees in
the particular store may have merged with those of
employees of other stores. We find this to be such a
case and are of the opinion that the presumption of
appropriateness which attaches to a single-store unit
has been rebutted. We note, for example, the lack of
autonomy at the single-store level, as reflected by the
strict limitations of the store manager's authority in
personnel, labor relations, merchandising, and other
matters; the extensive role played by officials at the
main office in the daily operations of the store; the
geographical proximity of the stores; and the transfer
of employees among them. Upon the entire record,
therefore, we find that a single unit of the requested
employees is appropriate.5
Turning to the question of unit composition, the
parties have stipulated that the store manager at each
store is a supervisor as defined in the Act. The parties
also have stipulated to exclude from the unit
administrative employees, executives, buyers, mer-
chandise specialists, engineering employees, mainte-
nance and technical employees, and quality control
employees. In each store, the Employer would
exclude the produce department manager, the
grocery department manager, and the assistant
grocery department manager as supervisors as
defined in the Act. The Employer also would exclude
as a supervisor the beer and wine department
manager at the Agawam store. (Neither the Fairview
nor the Belmont Avenue store has a beer and wine
department.) The Retail Clerks would include all the
department managers and assistant department
managers; the Meat Cutters took no position on this
issue . The Retail Clerks would include, while the
Employer would exclude, the employees in the beer
and wine department at the Agawam store; the Meat
Cutters took no position on this issue either.
There are approximately three clerical employees
at each of the three stores involved herein. The Retail
Clerks would include, while the Employer and the
Meat Cutters would exclude, them. The Retail Clerks
would include, while the Employer and the Meat
Cutters would exclude, the janitor at each
Department Managers
The managers of each department (produce,
grocery, and beer and wine) are responsible for all
the work in their respective departments, including
the ordering, receiving, storing and marking of
merchandise, the maintaining of proper price levels,
markdowns, and management of the work force,
supplies, and labor expenses. In performing these
duties the department managers determine the work
schedules and assignment of overtime for the
employees in their departments. They also play an
effective role in the hiring of part-time employees,
and the discipline and discharge of all their employ-
ees, through their recommendations. Moreover, the
department managers are responsible for the gross
profits of their departments. They participate in the
staff and management pension and insurance pro-
grams, which cover all executives and managerial
personnel. They have unlimited sick leave and do not
have to punch the timeclock. They are salaried, are
paid higher wages, and receive an annual bonus.
We find that the department managers are supervi-
sors as defined in the Act and, accordingly, we shall
exclude them from the unit.
Assistant Grocery Department Manager
The assistant grocery department manager super-
vises the receiving of merchandise, and he has
responsibility for special ordering and for the design,
* Frisch's Big Boy Ill-Mar, Inc, 147 NLRB 551. presently occupying these positions , we will not make any specific
5 Nobody has requested that the employees be given a choice of determination with respect to such classifications We note, however, the
representation as part of the existing 16-store unit statutory restrictions on grouping of guards or professional employees with
6 The Employer would exclude professional employees , management other employees
trainees , and watchmen and guards , but since there are no employees
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
construction, and ordering of merchandise for all the
end displays. He receives higher pay than other
employees.
Both the assistant grocery department manager
and the grocery department manager act as store
managers, in the absence of the store manager, for 27
of the store's 72 open hours. When the grocery
department manager substitutes as store manager,
the assistant grocery department manager becomes
the grocery department manager and shares the
position of store manager with the grocery depart-
ment manager. Functioning as store managers, the
grocery department manager and the assistant
grocery department manager have the same responsi-
bilities and duties as the store manager.
We find that the assistant grocery department
managers are also supervisors as defined in the Act
and, accordingly, we shall exclude them from the
unit.
Beer and Wine Department Managers at the
Agawam Store
The beer and wine department in the Agawam
store operates on a substantially independent basis
from the store. Thus, its funds are not commingled
with the store funds but are deposited in a separate
bank account. The department itself is partitioned
off from the rest of the store. Supervision of the
department is not the responsibility of the district
manager of the Massachusetts Division. There is a
special executive at the central office who is
responsible for surveying the inventory and balanc-
ing and examining the accuracy of the department's
quarterly statement. The department is not subject to
the control of the supermarket executives at the
central office.
The store manager has no authority over the beer
and wine department manager. The beer and wine
department manager schedules employee hours and
recommends wage increases without the store man-
ager's intervention. He also orders merchandise
directly from the vendor and fixes the prices for sale,
unlike the other department managers within the
store. As a result of the department's independence,
there is no interchange between the manager and the
employees of the beer and wine department and the
managers and employees of the meat, grocery,
produce, and service departments.
The employees in the beer and wine department
are treated differently from the employees in the
other departments in the store. Thus, the beer and
wine department has different business hours from
those of the other store departments, and the beer
and wine department employees have a different
scale of wages and participate in the staff and
management pension and insurance programs.
We find that the employees in the beer and wine
department of the Agawam store do not share a
sufficient community of interest with the other
employees within the store to be included in the same
unit. Accordingly, we shall exclude them from the
unit.
Clerical Employees
There are two clerical employees in each of the
three stores who work primarily in the courtesy
booth. They distribute and collect the cashiers' cash
drawers, reconcile and balance the daily deposits
made by the store manager, advise the central office
of the amount of the daily deposit, distribute
paychecks, and deal with customers, mainly by
cashing checks.
The cashiers have contact with the clerical employ-
ees in the regular course of their work. The clerical
employees have obtained their positions by promo-
tion from the position of cashier, and they are
therefore qualified to substitute as cashiers, which
they do in certain situations, although they work on a
different schedule. Unlike other employees, the
clericals have participated in the staff and manage-
ment insurance and pension programs.
In all the circumstances, we find that the clerical
employees share a sufficient community of interest
with the other employees to be included in this food
store unit.
Janitors
The janitors, one in each store, are responsible for
cleaning the floors and restrooms, before or after
store hours. Since they work in the same store as the
other employees and have the same ultimate supervi-
sion, and since no union seeks to represent them
separately, we shall include them in the unit as
requested by the Retail Clerks.
In view of the above, we find that the following
employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All employees of the Employer in its stores in
Fairview and Agawam, Massachusetts, and Bel-
mont Avenue in Springfield, Massachusetts,
including the clerical employees and janitors, but
excluding employees in the meat and delicatessen
departments, the employees in the beer and wine
department of the Agawam store, administrative
employees, executives, buyers, merchandise spe-
cialists, engineering employees, maintenance and
technical employees, quality control employees,
the store managers, the department managers, the
FOOD MARTS 21
assistant grocery department manager, and all [Direction of Election and Excelsior footnote
supervisors as defined in the Act. omitted from publication.8]
8 Although the Retail Clerks have not specifically requested to be construing their intervention in the Meat Cutters cases as such a request
included on a ballot for a single three-store unit, we shall include them,