Malone & Hyde, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1970

185 N.L.R.B. 52 (N.L.R.B. 1970)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U-Tote-Em Grocery Co., division of Malone & Hyde,
Inc. and Retail Clerks Union , Local 1529, char-
tered by Retail Clerks International Association,
AFL-CIO, Petitioner and Amalgamated Meat Cut-
ters & Butcher Workmen of North America,
AFL-CIO, District Union 452, Petitioner. Cases
26-RC-3634 and 26-RC-3655
August 21, 1970
DECISION ON REVIEW
BY MEMBERS MCCULLOCH, BROWN , AND JENKINS
On January 5, 1970, the Regional Director for
Region 26 issued a Decision and Direction of Elections
in the above-entitled proceeding in which he found
inappropriate the Petitioners" requested units of gro-
cery and produce department employees and of meat
department employees, respectively, employed by the
Employer at three of its retail food stores in or
near Jackson, Tennessee, and he found alone
appropriate Employerwide units of these employees
encompassing all 11 of the Employer's food stores
in western Tennessee. Thereafter, pursuant to National
Labor Relations Board Rules and Regulations, the
Retail Clerks filed a timely request for review of
the Regional Director's Decision, contending that,
by including in its requested unit employees at stores
outside the Jackson metropolitan area, he departed
from officially reported Board precedent. The Employ-
er filed opposition to the request for review.
By telegraphic order dated January 29, 1970, the
National Labor Relations Board granted the request
for review. Thereafter, the Employer filed a timely
brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has considered the entire record in
this case, including the Employer's brief on review,
and makes the following findings:
As indicated above, the Employer operates a chain
of 11 retail food stores in the western part of Tennes-
see. The central office for these stores is located
in Jackson, Tennessee, the largest city in the area
served by the Employer. The Employer's warehouse,
located in the same building as the central office,
services all 11 stores. In Jackson, the Employer has
' The Petitioners are referred to herein as the Retail Clerks and
the Meat Cutters
two retail stores situated in shopping centers, one
being about a mile from the central office and the
other about 2 miles away. In Bemis, which is a
suburb of Jackson, 4 to 5 miles distance from the
central office, there is a third retail store. The remain-
ing 8 stores of the chain are located in small towns
within a 74-mile radius of Jackson, the nearest being
24 miles away.' The Retail Clerks, in its request
for review, urges that the three stores in Jackson
and Bemis constitute a metropolitan area grouping
of stores in the Employer's chain and that, therefore,
its requested unit is appropriate. We agree.
As is common in retail chain operations, and partic-
ularly in food chains, there is a high degree of central-
ized administration in the functioning of all of the
Employer's groceries. Thus, the merchandise is the
same in all stores except for a few items; the price
structure is identical; and the layout of all stores
is, insofar as possible, the same. In addition to buying
and distributing the merchandise, the central office
determines whether there will be sales or other kinds
of special promotions and give-aways. All newspaper
advertisements to promote business are prepared by
the central office, with with an identical ad placed
every week in 12 or 13 newspapers circulated in
the Employer's trade area. Also handled by the central
office is the purchase of equipment and parts for
stores, and all store operating bills (for example,
utility and telephone) are sent from each store to
Jackson for payment.
Although financial records are kept for the 11
stores at the central office, each store is treated as
a distinct unit with a separate financial statement
and obligation to stand on its own in terms of profit
and loss.' Individual stores maintain local bank
accounts with deposits transferred to a central Jackson
bank on a weekly basis. Also, once a week, payroll
cards, filled out at the store level for each employee,
are sent to the central office. Paychecks are prepared
there and sent to the manager of each store who
distributes them to store employees. All forms used
in making financial and payroll reports, and for all
other personnel matters, are uniform and distributed
by the central office.
Permanent and part-time hiring is usually initiated
at the store level with the filling out of an employment
application. Applicants sometimes appear at the cen-
tral office for this purpose, and they are then sent
to a particular grocery. Store managers have authority
= The towns (with their distances from the the central office indicated)
are: (1) Brownsville (24 miles), (2) Alamo (24 miles), (3) Lexington
(27 miles), (4) Huntingdon (35 miles), (5) Parsons (43 miles), (6) Dyersburg
(55 miles), (7) Savannan (64 miles), (8) Waverly (74 miles)
' An employee profit-sharing plan is computed as a percentage of
the profits attributed to the particular store where the employee works
185 NLRB No. 6
U-TOTE-EM GROCERY CO
to hire part-time employees on the spot, and they
may put a full-time applicant to work immediately.
However, in all cases , the central office must be
notified for final approval. While this approval is
essentially perfunctory as to part-time hiring, a full-
time applicant will not be finally approved until he
is interviewed by the general supervisor of store opera-
tions.' While the general supervisor may refuse to
approve a hiring, this rarely occurs.' Store managers
also make recommendations to the central office
regarding individual wage increases,' promotions, and
terminations. As in the case of hiring, store-level
recommendations on these matters are usually fol-
lowed.'
With respect to other working conditions and bene-
fits, there is a 6-day maximum workweek for all
stores, but the hours each store is open vary in
order to meet local competition. Holidays are identical,
however, and the Employer maintains uniformity in
its vacation plan, stock purchase plan, and hospitiliza-
tion plan. A standard uniform is also worn by employ-
ees at the 11 groceries.
The total employee complement of the chain is
approximately 170, of which 145-150 are grocery
and produce employees. Of the total complement,
it is estimated that between 50 and 60 percent are
part-time employees.' The three-store unit requested
by the Retail Clerks employs about 60 grocery and
produce employees. In these stores are approximately
10 meat department employees. Most of the Employ-
er's employees live in the vicinity of the store where
they work. The Employer stated that the majority
of its employees have been transferred from one store
The general supervisor of store operations works out of the central
office in Jackson He supervises all 11 retail stores and, in addition
to maintaining telephone communications with store supervisory personnel,
he visits every store at least once a week to help coordinate operations
among all the stores and to deal with individual emergency situations
such as refngeration breakdowns, cash shortages, store break-ins, or acci-
dents
' The record indicated that 99 percent of the time the general supervisor
approves a store manager 's hiring of a part-time employee and that
"in most cases" the general supervisor also accepts the store manager's
recommendation as to a full-time applicant
All stores apply a uniform starting rate which is varied (for example,
when an applicant has prior experience) only with central office approval
There is no set wage scale in terms of an upper limit , and almost
100 percent of the time any employee 's wage increase is the result
of a store manager's recommendation
The Employer initially stated that personnel records for all employees
were kept at the Jackson office However, later testimony at the hearing
revealed that only a few days before the general supervisor distributed
employment applications at all stores to be filled out by every employee
He admitted that, until this action, the central office did not have
an application record for all of its employees and that such a record
had only been kept at the store level
The Employer considers a person working at least 40 hours per
week a full-time employee and , as a part-time employee, one working
a regularly scheduled 15 to 25 hours per week Part-time employees
are also differentiated in that they do not participate in all of the
benefits available to full-time employees.
53
to another at some time during their employment.'
The record indicates that, as to the three-store unit
primarily sought, at least 11 employees transferred
there from the 8 other stores (16 percent); and about
37 employees transferred from these 3 stores to other
stores (37 percent). Employees are temporarily inter-
changed between stores in emergencies, such as new
store openings, special sales at particular stores, absen-
teeism, illness, or vacations. Although the Employer
stated that interchange occurs "often, sometimes week-
ly," no statistics were provided to enable us to deter-
mine the rate of interchange affecting the requested
stores over a given period of time.
Overall, the Employer attempts to maintain uni-
formity in certain aspects of its business operation
in several ways. In addition to personal communica-
tion and visits by the central office' s general supervisor
of store operations to each store, a daily bulletin
is circulated to all stores containing such information
as price changes, sales plans in connection with current
advertisements, and reminders of particular company
policies . There is also a store manager 's guide, uni-
formly distributed, that outlines various procedures
for, among other things, handling money and check
cashing, handling and displaying products, and train-
ing employees. However, store managers or their
assistants are allowed complete discretion as to how
such rules and regulations are carried out; they exer-
cise independent judgment in such matters as instruct-
ing employees on ways to do their job and on develop-
ing methods of stocking the store. The Employer
admitted that no two store managers "do their work
exactly alike." Generally, store managers are responsi-
ble for assigning and directing employees' work,
assigning overtime, routine discipline of employees,
and sending sick or injured employees home or to
the doctor. They also have complete control over
the store building itself, the safe, money, and bank
deposits. They keep the store's financial records, in
addition to making up the payroll and distributing
checks when received from the central office. Store
managers also communicate with each other daily
about business problems which often include the trans-
fer of goods between individual stores.
Although the foregoing description of the nature
of the Employer's retail grocery operations clearly
establishes that a chainwide unit of its employees
would be appropriate, there are factors present which
support a finding that a unit limited in scope to
the three stores in and near Jackson is also
' Transfers are made primarily for promotion purposes Transfers are
effected both by employee request and by employer requirements Howev-
er, a transfer of an employee to a store outside a 5-mile radius from
where he works is made only by mutual agreement.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate.10 Where there is no bargaining history
on a broader basis, the Board has frequently found
appropriate a geographic grouping of retail chain
stores delimited by the bounds of a metropolitan
area." Here, two of the stores encompassed by the
requested unit are in the city of Jackson and the
third is in Bemis, a near-by suburb of Jackson. The
next closest store is 24 miles from Jackson. Although,
as above indicated, there have been permanent trans-
fers of employees in and out of the requested grouping
of stores, it appears from the record that temporary
interchange of employees among all the stores occurs
only in emergency situations, such as the opening
of a new store in the chain, at special sales affecting
business volume at some stores more than others,
and in case of illness or other unscheduled absences.
Where, as herein, interchange of this nature is not
shown to be significant, it does not, in our opinion,
militate against the establishment of a metropolitan
area unit. Further, despite the integration of operations
of the entire chain and the overall supervision of
the chain provided by the office, each store is operated
as a separate economic unit , the manager of each
store retains substantial autonomy in supervising the
day-to-day operations of his store within the limits
of policies set by the central office, and the store
manager is involved in hiring and in making recom-
mendations as to individual wage increases , promo-
tions, and terminations. 12
In the circumstances of this case, we find, contrary
to the Regional Director, that the employees employed
at the three stores in the metropolitan area of Jackson
have a separate and distinct community of interest
apart from the broader one they share with employees
at other stores in the chain and that they constitute
an appropriate unit for purposes of collective bargain-
ing." Accordingly, we hereby remand the case to
the Regional Director in order that he may conduct
an election pursuant to his Decision and Direction
of Elections, as modified herein, except that the eligi-
bility payroll period therefor shall be that immediately
preceding the date below.14
10 The Board 's recognition that more than one unit may be appropriate
among the employees of a particular enterprise and the policy of nonethe-
less limiting its consideration in that situation to whether the unit sought
is appropriate has been stated a number of times, with the approval
of the courts See Motts Shop Rite of Springfield, Inc, and Marts Shop
Rite of Chicopee, Inc, 182 NLRB No 19, and cases cited therein at
fn 3
" See, eg, Drug Fair-Community Drug Co, Inc, 180 NLRB No
94, and cases therein cited
" Cf. Shop's Save Co, Inc., 174 NLRB No 156
See Haag Drug Company, 169 NLRB No 111, Marts Shop Rite,
supra, fn 10
" In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote, all parties to the election should have access to a list of voters
and their addresses which may be used to communicate with them
Excelsior Underwear Inc, 156 NLRB 1236, NL R B v Wyman-Gordon
Company, 394, U S 759 Accordingly, it is hereby directed that a
corrected election eligibility list, containing the names and addresses
of all the eligible voters, must be filed by the Employer with the Regional
Director for Region 26 within 7 days of the date of this Decision
on Review The Regional Director shall make the list available to all
parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting
aside the election whenever proper objections are filed