Penn Traffic Co.

National Labor Relations Board - Board Decisions

Jul 17, 1975

219 N.L.R.B. 189 (N.L.R.B. 1975)

PENN TRAFFIC COMPANY 189
Penn Traffic Company , Riverside Division and Retail
Clerks Local Union No. 298 , Retail Clerks Interna-
tional Association, AFL-CIO and United Food
Handlers Union, Party to the Contract. Case
8-CA-8490
July 17, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On March 31, 1975, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
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 Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The principal issue presented is whether, under the
circumstances of this case, the employees of the new-
ly acquired five Bi-Lo Markets, all located in the
State of Ohio, can be considered an accretion to a
preexisting unit of employees of the Respondent's
approximately 30 Riverside Markets located mostly
in the State of Pennsylvania. All the Pennsylvania
and Ohio stores are located within 15 to 30 miles
from each other and a similar distance from the
Respondent's headquarters in DuBois, Pennsylvania.
The five Bi-Lo Markets were originally operated
by the National Tea Company under the names of
"Loblaw's" and "Saveway." Four were closed in Au-
gust 1972, because they proved unprofitable, and the
fifth store located in Warren, Ohio, had been closed
earlier. Negotiations for operation of the stores be-
gan in October 1973, and the final arrangements of
their sale were reached in January 1974. At the time
of the acquisition, Respondent was aware that the
Retail Clerks International Union and the Amalga-
mated Meat Cutters International had been parties
to collective-bargaining contracts with the National
Tea Company for the stores in issue . On the date of
acquisition by Respondent, it made no agreement
with the National Tea Company regarding the repre-
sentative status of these Unions.
The relevant evidentiary facts may be summarized
as follows:
The Respondent's Riverside Markets began busi-
ness operations in 1947 with one market located in
Brookville, Pennsylvania. By 1953, the Riverside
Markets had expanded to four, all located in nearby
Pennsylvania cities . The S.V. Food Handlers Union,
whose name was changed in 1962 to United Food
Handlers Union, herein called UFHU, was volun-
tarily recognized in 1953 by the Respondent in all
four Riverside Markets. By 1962 Respondent was op-
erating 10 markets and the UFHU was voluntarily
recognized as the exclusive bargaining representative
of the employees in all its markets.
In the spring of 1962, the Board conducted an
election in store 7, located at Clarion, Pennsylvania,
pursuant to a petition filed by the Amalgamated
Meat Cutters and Butcher Workmen, Local 590, in
which UFHU intervened. The UFHU received a ma-
jority of the votes cast and was certified as the bar-
gaining representative. Thereafter, the UFHU filed a
petition seeking certification in the other nine stores
and was certified in May 1962 by the Board to repre-
sent the unit employees.
From August 1962 until March 1966, the Respon-
dent acquired five stores, also located in Pennsylva-
nia. Voluntary recognition was extended to UFHU
to represent the employees in these markets. In 1966
the Respondent opened three additional stores. One
of the stores involved was a relocation of an earlier
store, in which UFHU had been certified and which
had closed down, to which all the employees were
transferred. As to the other two stores the UFHU
petitioned the Board for elections and was thereafter
certified to represent the employees in the appropri-
ate units.
From October 1967 until May 1973, Respondent
acquired stores 20 through 30 and voluntarily recog-
nized UFHU as the exclusive bargaining representa-
tive for the employees in those markets.
Both the Respondent and UFHU have consistent-
ly interpreted their collective-bargaining agreement
as requiring recognition at newly acquired facilities.
Although the contracts with the Respondent have al-
ways contained union-security provisions which re-
quire membership of unit employees in the UFHU
30 days after employment, the contracts never had,
and do not now contain, accretion clauses whereby
the parties agreed that any future stores located with-
in the Respondent's territorial jurisdiction would be
deemed an accretion to the existing - bargaining unit.
Apparently the practice has been for the Respondent
to recognize the UFHU at each newly-acquired store
without any prior showing of majority status.'
No contention is made by the General Counsel that the recognition of
Continued
219 NLRB No. 35
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Negotiations for the current contract between the
Respondent and the UFHU began around October
1973. At that time none of the Bi-Lo stores had been
acquired. In the negotiating session the next month
the subject of the Bi-Lo Markets was raised and the
Union was informed that the Respondent antici-
pated purchasing the five stores, described above.
The Respondent further explained that it could oper-
ate the stores profitably only as discount stores and
could not pay the prospective Bi-Lo employees the
same wage rates as the Riverside Market employees
for similar work.
The contract subsequently negotiated provided
that regular Riverside Market wage rates would ap-
ply to all meat department employees, head floor-
men, produce managers , and supervisory employees,
while lower rates of pay would be paid to the remain-
der of the prospective bargaining unit employees,
such as head cashiers, cashiers, part-time and full-
time clerks, and prepackers. The current collective-
bargaining agreement covering employees of both
Riverside and the five Bi-Lo Markets was executed
by the parties on March 18, 1974, before the Bi-Lo
stores were opened, and is effective December 1,
1973, through May 1, 1975. The first Bi-Lo stores
opened on March 26, 1975.2
In staffing the Bi-Lo stores the Respondent posted
openings companywide for most jobs. Transfers
which occurred were mainly in nonunit jobs. Practi-
cally all the unit employees (packer, prepacker, cash-
ier, clerk, and head cashier) were hired locally,
through the Ohio Employment Service, classified ad-
vertisements in local newspapers, or direct inquiries
from individuals who walked into the store. Of the
approximately 150 employees in the five Bi-Lo Mar-
kets approximately one-third, including supervisors,
were transferred from the Riverside stores . The re-
cord shows little interchange of unit employees on a
permanent basis among the Bi-Lo and the Riverside
stores.
Prior to the opening of the stores and during the
time when prospective employees were being inter-
viewed for employment, employees were generally
informed, in some cases by Respondent's officials,
that the UFHU was recognized as the collective-bar-
gaining agent for the five Bi-Lo stores and that under
the UFHU at any of the Respondent's Riverside Market stores prior to their
opening, or without a showing of majority status, was in any manner inap-
proriate or illegally obtained.
2pOn February 28, 1974, the Retail Clerks International Association,
AFL-CIO, sent the Respondent a letter contending that it had jurisdiction
and a labor contract covering the employees of the five stores , excluding
meat department employees . There was no evidence presented that the Re-
tail Clerks represented a majority of the employees in an appropriate unit in
any of the stores . In response to the Union's letter , the Respondent denied
that it had any obligations to deal with the Retail Clerks.
the contract they would be required to join the
Union after 30 days and pay dues and initiation fees
to UFHU. Such information was given before the
prospective employees had signed UFHU authoriza-
tion cards and before UFHU union meetings were
conducted. Since the markets have opened, the
Respondent's officials have solicited employees to
sign cards and permitted notices of meetings to be
posted in the stores. Authorized representatives of
UFHU have also been permitted to enter
Respondent's stores for the purpose of investigating
grievances or complaints.
Unlike most Riverside stores the Bi-Lo Markets do
not have bakery facilities or delicatessens, and the
overall prices are substantially lower than the prices
at the Riverside Markets. Fringe benefits are sub-
stantially the same for both Bi-Lo and Riverside em-
ployees. As noted above, the wages of most unit em-
ployees in the Bi-Lo stores are lower than those in
the Riverside stores doing similar work.
Although corporate functions, such as advertising,
purchasing, pricing, accounting and merchandising
are centrally performed from the DuBois, Pennsylva-
nia, headquarters, the record is clear that the local
managers supervise day-to-day operations of their
stores, under the overall supervision of the zone su-
pervisor who is in charge of only the five Bi-Lo Mar-
kets and reports to the Respondent's assistant gener-
al manager.
The individual store managers have the following
authority: (1) to mark down perishable goods; (2) to
effect the ordering and the stocking of merchandise
and to correct, but not initiate, advertising; (3) to
authorize emergency repairs; (4) to hire, discharge,
discipline, and suspend employees, subject to estab-
lished policies; (5) to hire part-time employees after
posting those jobs in all stores within a 15-mile ra-
dius, and full authority to hire part-time packers; (6)
to reduce the hours of part-time employees; (7) to
schedule hours and assign duties; and (8) to partici-
pate in the initial step of the grievance procedure.
The General Counsel alleges that the Respondent
rendered unlawful aid, assistance, and support to
UFHU in violation of Section 8(a)(1) and (2) of the
Act in regard to the Bi-Lo Markets. The General
Counsel relies on the Respondent 's executing a con-
tract with UFHU before there was a majority show-
ing, and the Respondent's maintaining in force and
effect a supplemental collective -bargaining agree-
ment which requires employees to become members
of UFHU after 30 days of employment, and in other
ways assisting the Union by encouraging member-
ship. The Respondent denies the commission of any
violation of the Act, contending the five stores in
question constituted an accretion to the existing bar-
PENN TRAFFIC COMPANY 191
gaining unit and that it was merely following long-
established procedures in its treatment of employees
and the recognition of the UFHU at newly acquired
stores.
Relying principally on geographical proximity of
the Bi-Lo stores to the Respondent's Riverside stores,
the extent of interchange of employees among the
stores in question and the Riverside Markets, and the
centralization of labor relations and other business
functions, the Administrative Law Judge concluded
that the acquisition of the Bi-Lo stores constituted an
accretion to the established existing companywide
unit to become a single unit for collective-bargaining
purposes and dismissed the allegations of violations
of Section 8(a)(1) and (2) of the complaint in their
entirety. We do not agree.
Contrary to the Administrative Law Judge we find
that the factors involved in this proceeding do not
meet the criteria commonly used by the Board to
determine whether a group of newly acquired em-
ployees in a new operation constitutes an accretion
to an existing unit.
The one factor most commonly relied on by the
Board in finding accretion, interchange and transfer
of employees from the existing unit to the newly ac-
quired operation, appears to be singularly lacking.'
With the exception of supervisory employees, practi-
cally all the rank-and-file unit employees were newly
hired locally and there is little or no interchange
among the units. Nor does the centralization of oper-
ations appear so physically, functionally, and admin-
istratively integrated as to make only an overall unit
appropriate.' The store managers have a high degree
of autonomy, not too different from that found in
other multistore operations in which we have found a
single store to be an appropriate unit.' Significantly,
the overall supervision of the stores is by a zone man-
ager who is concerned only with the operation of the
five Bi-Lo stores. The reason is that the stores in
question-because of their unique wage and pricing
policies, geographical location, and method of opera-
tions-have a community of interest which differs
from the Riverside Markets.
Finally, we find that bargaining history, contrary
to the conclusion drawn by the Administrative Law
Judge, militates against a finding of accretion. Prior
to Respondent's acquisition of the five stores in issue
bargaining was not on a multistore basis. Indeed,
among the Riverside stores themselves the history
3 See Essex Wire Corporation, 130 NLRB 450 (1961); Combustion Engi-
neering, Inc., 195 NLRB 909 (1972).
Cf Granite City Steel Company , 137 NLRB 209 (1962 ); Combustion En-
gineering, Inc., supra.
3 See Sav-On Drugs, Inc., 138 NLRB 1032 (1962); Haag Drug Company,
Incorporated, 169 NLRB 877 ( 1968). Cf. Food Marts, Inc., 200 NLRB 18
(1972).
does not show a clear multistore bargaining pattern .6
As noted above, the UFHU petitioned for and was
certified on, in most cases, a less than multistore ba-
sis, and in one case on a single-store basis. We con-
sider this further evidence that a less than overall
multistore unit would be appropriate and that the
five Bi-Lo stores were not necessarily covered by any
preexisting unit. Accordingly, we find that the Bi-Lo
stores are not an accretion to the 30-store Riverside
unit .7
In the circumstances we conclude that the employ-
ees under the guise of accretion were compelled to
join and pay initiation fees and dues to the UFHU
without ever being given an opportunity to express
their preference as to the selection of a bargaining
representative. Moreover, it is undisputed that this
was accomplished through the aid and assistance of
Respondent's supervisors and officials. Thus, the Re-
spondent unlawfully recognized and extended
UFHU's union-security agreement to employees at
the Bi-Lo stores at a time when there was no showing
that the employees expressed a desire to be repre-
sented by UFHU or that UFHU represented an un-
coerced majority.' By these acts and conduct the Re-
spondent violated Section 8(a)(1) and (2) of the Act.
THE REMEDY
The Board has found that the Respondent, by its
assistance to and recognition of the UFHU and by
extending the coverage of its existing contract cover-
ing its Riverside Markets to the employees in the five
Bi-Lo Markets, violated Section 8(a)(1) and (2) of the
Act. The Board will therefore order that the Respon-
dent cease and desist from said violations of the Act,
cease giving effect to the December 1, 1973, through
May 1, 1975, contract as it affects Bi-Lo employees,
without, however, requiring the Respondent to vary
any of the substantive features established under the
said contract. -Further, we shall order that the Re-
spondent withdraw recognition of the UFHU as ex-
clusive representative of the Bi-Lo employees.
Having found that the Respondent violated Sec-
tion 8(a)(2) in the unlawful extension of the union-
security provisions of its contract covering the River-
side Markets to the employees at the Bi-Lo stores, we
shall follow our customary remedial practice and or-
der reimbursement of the employees involved by Re-
spondent for dues and fees unlawfully exacted from
6 Cf. Manitowoc Shipbuilding, Inc, 191 NLRB 786 (1971).
7 We find it unnecessary , however, and do not conclude in this proceed-
ing that a single store , the five-store grouping , or that the combined River-
side and Bi-Lo stores are appropriate units or the only appropriate units.
8 See Melbet Jewelry Co, Inc., 180 NLRB 107 ( 1-969), cf 'Retail Clerks
Union, Local 870, Retail Clerks International Association, AFL-CIO (White
Front Stores, Inc), 192 NLRB 240 (1971), and Smith 's Management Corpo-
ration d/b/a Frazier's Market, 197 NLRB 1156 (1972). -
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them with interest as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Respondent, Penn Traffic Company, Riverside
Division , is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The United Food Handlers Union is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By unlawfully assisting and supporting the
UFHU, and by the unlawful extension of the union-
security contract to Bi-Lo employees, Respondent
engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Penn Traffic Company, Riverside Division, DuBois,
Pennsylvania, its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Contributing support and assistance to the
United Food Handlers Union or to any other labor
organization of its employees.
(b) Recognizing the UFHU as the bargaining rep-
resentative of any of its Bi-Lo employees for the pur-
poses of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment,
unless and until said labor organization shall have
demonstrated its exclusive majority representative
status pursuant to a Board-conducted election
among the said Bi-Lo employees in a unit found ap-
propriate.
(c) Giving effect to the collective-bargaining
agreement effective as of December 1, 1973, between
Respondent and UFHU, or to any extension, renew-
al, modification, or supplement thereof insofar as it
applies to its Bi-Lo operations; provided, however,
that nothing herein shall require the Respondent to
vary or abandon any wages, hours, or other substan-
tive features of its relations with its Bi-Lo employees
which the Respondent has established in the perfor-
mance of the contract, or to prejudice the assertion
by employees of any rights they may have thereun-
der.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of Act:
(a) Reimburse employees at its Bi-Lo Markets for
any initiation fees, dues, or other moneys paid or
checked off pursuant to-the agreement applied to Bi-
Lo employees or to any extension, renewal, modifica-
tion, or supplement thereof, or to any agreement su-
perseding it, plus interest as set forth in Isis Plumbing
& Heating Co., supra.
(b) Withdraw and withhold all recognition from
UFHU as the exclusive bargaining representative of
the employees at the Bi-Lo Markets for the purpose
of dealing with it concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or
other conditions of employment unless and until said
labor organization shall have demonstrated its exclu-
sive majority status pursuant to a Board-conducted
election in a unit or units found appropriate at the
Bi-Lo Markets.
(c) Post at the Bi-Lo Markets in Warren and
Youngstown, Ohio, copies of the attached notice
marked "Appendix." 9 Copies of said notice, on
forms provided by the Regional Director for Region
8, after being duly signed by Respondent or its repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
9In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to
the United Food Handlers Union or to any
PENN TRAFFIC COMPANY 193
other labor organization of our employees.
WE WILL NOT recognize said Union as the ex-
clusive bargaining representative of employees
in our Bi-Lo Markets, unless and until the said
labor organization shall have demonstrated its
exclusive majority status pursuant to a Board-
conducted election among the employees in a
unit or units appropriate at the Bi-Lo Markets.
WE WILL NOT give effect to the collective-bar-
gaining agreement of December 1, 1973,
through May 1, 1975, with the United Food
Handlers Union, insofar as it affects Bi-Lo Mar-
ket employees; provided, however, that nothing
in the Board's Decision requires us to vary or
abandon those wages, hours, or other substan-
tive features of our relations with our employees,
established in carrying out that agreement, or to
prejudice the assertion by employees of any
rights they may have under the terms of that
agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form labor organizations, to join or assist the
above-named Union or any other labor organi-
zation, to bargain collectively through represen-
tatives of their own choosing, or to engage in
other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion or to refrain from any or all such activities,
except to the extent that such rights may be af-
fected by an agreement requiring membership in
a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act,
as amended.
WE WILL make whole the employees of the Bi-
Lo Markets for dues and initiation fees paid to
the above-named labor organization, plus inter-
est at the rate of 6 percent per year.
Labor Relations Board and an answer filed thereto by
Penn Traffic Company, Riverside Division, herein called
the Respondent? The issue raised by the pleadings relates
to whether Respondent violated Section 8(a)(1) and (2) of
the National Labor Relations Act, as amended, by certain
conduct to be detailed hereinafter. Briefs have been re-
ceived from the General Counsel and the Respondent,
which have been duly considered.
Upon the entire record made in this proceeding, includ-
ing my observation of the demeanor of the witnesses as
they testified on the stand, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Pennsylvania corporation with its princi-
pal offices located in DuBois, Pennsylvania, is engaged in
the retail sale of groceries and related food products
throughout the States of Ohio and Pennsylvania, and oper-
ates the five retail stores herein involved which are located
at the following addresses within the State of Ohio: Store
No. 35 at 4331 Mahoning Avenue, Champion Township,
Warren, Ohio; Store No. 36 at 1020 N. Park Avenue, War-
ren, Ohio; Store No. 37 at 600 Mahoning Avenue, Austin-
town Plaza, Youngstown, Ohio; Store No. 38 at 886 Mid-
lothian Blvd., Youngstown, Ohio; and, Store No. 39 at 590
Francisca Avenue, Youngstown, Ohio. During the annual
period material to this proceeding, Respondent derived
gross revenues in excess of $500,000, and received at the
above-named stores goods valued in excess of $50,000 di-
rectly from points located outside the State of Ohio. The
complaint alleges, the answer admits, and I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Local Union No. 298, Retail Clerks Inter-
national Association, AFL-CIO, herein called the RCIA,
and United Food Handlers Union , herein called the
UFHU, are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
PENN TRAFFIC COMPANY , RIVERSIDE
DIVISION
DECISION
MAx ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding I was tried before me
in Youngstown, Ohio, on November 19 and 20, 1974, on a
complaint filed by the General Counsel of the National
1 Case 8-CA-8490 was consolidated by the Regional Director for Region
8 with Case 8-CA-8573 for purposes of hearing . The consolidated cases
were severed at the hearing for purposes of decision.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent rendered unlaw-
ful aid, assistance , and support to UFHU, in violation of
Section 8(a)(1) and (2) of the Act, when, on March 1,
1974,3 it executed and, at all times thereafter material to
this proceeding, it maintained in force and effect a supple-
mental collective-bargaining agreement covering all em-
ployees in Stores Nos. 35, 36, 37, 38, and 39 which required
those employees to become members of UFHU after 30
days of employment with Respondent, and on various
dates commencing on March 1, through its agents and su-
pervisors, it urged and solicited employees at those five
stores to sign membership applications and checkoff au-
2 The complaint in this proceeding, which issued on September 26, 1974,
is based on charges filed on July 11, 1974, and served on July 17, 1974.
3 Unless otherwise indicated , all dates herein fall in 1974.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorization forms for UFHU and assisted that labor orga-
nization in obtaining said forms from the employees. For
its part, Respondent denies the commission of any labor
practices proscribed by the statute, contending that the five
stores in question constituted an accretion to an existing
bargaining unit.
At the outset of the hearing , the parties stipulated as to
the acquisition , bargaining history, and mode of operation
of Respondent 's stores known as the Riverside Markets
and those involved herein which are styled as the Bi-Lo
Markets . Based on the stipulations , I find the facts as fol-
lows.
Riverside Markets commenced its business operations in
1947 when it acquired a store in Brookville , Pennsylvania.
By 1953 , Riverside Markets consisted of four enterprises,
all of which were located in various Pennsylvania cities.
During the same year, Respondent voluntarily recognized
the S . V. Food Handlers Union , which name was changed
in 1962 to the UFHU, as the exclusive collective -bargain-
ing representative for the employees in all four existing
Riverside Markets . From 1955 to 1960, Respondent made
the acquisition of six additional stores in Pennsylvania and,
by 1962, Respondent operated 10 markets . In 1962, Re-
spondent voluntarily granted exclusive representative sta-
tus to UFHU as the bargaining agent for the employees in
all ten stores.
On February 22, 1962 , pursuant to a petition filed by the
Amalgamated Meat Cutters and Butcher Workmen Local
590, in Case 6-RC-3059 , the Board conducted an election
among the employees at Respondent 's Store No . 7 in Clar-
ion, Pennsylvania , in which UFHU intervened . On March
22, 1962 , the Board certified UFHU as the exclusive repre-
sentative for a unit of these employees.
On May 10, 1962 , following the filing of a petition by
UFHU in Case 6-RC-3069 , this labor organization again
defeated the Meat Cutters in an election among the em-
ployees in Respondent 's Pennsylvania Stores Nos. I
(Brookville), 2 (Reynoldsville), 3 (Dubois), 4 (Oil City),
5(Clearfield), 6 (Franklin), 8 (St. Marys), 9 (Altoona), and
10 (Johnstown), and UFHU was awarded an additional
certification to represent all nine of these installations.
Between August 1962 and March 1966, Respondent ac-
quired Stores Nos. 11 (Indiana), 12 (Altoona), 14 (Johns-
town), 15 (State College), and 16 (Philipsburg), all located
in Pennsylvania , and Respondent voluntarily extended rec-
ognition to UFHU to represent the employees at these
markets.
In 1966 , Respondent began the operation of Stores Nos.
17 (Oil City), 18 (Meadville), and 19 (Titusville). The
UFHU was accorded exclusive representative status by
Respondent covering the employees in Store No. 17 be-
cause all the employees from Store No. 7 (Clarion), at
which UFHU was certified , were transferred to Store No.
17.4 In this period , UFHU petitioned for an election at
Stores No . 18 and 19 in Cases 6-RC-4372 and 6-RC-4373,
respectively, and was thereafter certified to represent the
employees at the latter stores.
From October 1967 until May 1973 , Respondent man-
This transfer was occasioned by the happenstance that Store No. 7 had
been destroyed by fire in September 1966.
aged to acquire Stores Nos. 20 (Sharon), 21 (State College),
22 (Punxsutawney), 23 (Vinco), 24 (Duncansville), 25
(Somerset), 26 (Grove City), 27 (State College), 28 (Brook-
field), 29 (Spangler), and 30 (Huntingdon). With the excep-
tion of the market located at Brookfield, Ohio (Store No.
28), all of the Riverside Markets are situated in Pennsylva-
nia. Upon acquisition of Stores Nos. 20 through 30, the
UFHU was granted voluntary recognition as the represen-
tative of the employees in those stores by Respondent.5
Regarding the five Bi-Lo Markets here in issue, they
were originally operated by the National Tea Company
under the names of "Loblaw 's" and "Saveway ," and were
subsequently catalogued as Stores Nos. 35 (Champion,
Warren), 36 (Park. Ave., Warren), 37 (Austintown,
Youngstown), 38 (Midlothian, Youngstown), and 39 (Fran-
cisca , Youngstown), by Respondent, all located in the State
of Ohio. Of the Bi-Lo stores, four were closed by the Na-
tional Tea Company in August 1972 and remained vacant
for an extended period. Store No. 35 was never reopened
for business by that company.
In October 1973, National Tea Company inquired of
Respondent whether it was interested in acquiring the five
"Loblaw's-Saveway" markets and convert them into Bi-Lo
Markets . Negotiations ensued until the final arrangements
of sale were reached in January 1974. Under the terms of
the agreement, National Tea Company bound itself to pay
the rental expenses until June 30, 1974, after which Re-
spondent became liable for them . Respondent also was
permitted to occupy the five stores at any time it desired to
reopen them for business . At the time of acquisition, Re-
spondent was aware that the RCIA and the Meat Cutters
had been parties to collective-bargaining contracts with the
National Tea Company when the stores were operated by
the latter company. On the date of acquisition by Respon-
dent , it made no agreement with the National Tea Compa-
ny regarding the representative status of the RCIA or the
Meat Cutters.
With respect to a comparison of the Riverside Markets
and the Bi-Lo Markets, the parties further stipulated that
the conventional Riverside Market is operated on a basis
similar to Fazio's Markets in the Youngstown area . Several
of the Riverside Markets have special bakery and delicates-
sen facilities in addition to the standard meat , produce,
and grocery departments found in all stores. None of the
Bi-Lo Markets have bakery facilities or delicatessens.
When Respondent remodeled the Bi-Lo Markets, it re-
moved drug department facilities that had been in two of
the stores previously operated by National Tea Company.
Overall, the prices at the Bi-Lo stores are substantially low-
er than the prices at the Riverside Markets.
In staffing the Bi-Lo stores , Respondent posted the job
openings companywide for most of the jobs. The transfers
which occurred were in the positions of head floorman,
assistant manager, meat manager , produce manager, and
store manager. Employees in the classifications of packer,
prepacker, cashier, clerk, and head cashier were not in-
volved in the transfers because the Respondent does not
5 It should be noted that the General Counsel does not contend that a
companywide unit of Riverside Market stores, prior to the acquisition of the
Bi-Lo stores, was in any manner inappropriate or illegally obtained.
PENN TRAFFIC COMPANY 195
pay these classifications of employees for transportation
and relocation costs.
Wage rates for meat managers , journeymen , apprentice
meat employees , head floormen , produce managers , assis-
tant managers , and store managers are the same for both
Riverside and Bi-Lo markets . The assistant managers and
store managers are not bargaining unit employees. The
other above-named classifications are included in the bar-
gaining unit , and are not supervisory personnel. Bi-Lo
wage rates for packers , clerks , prepackers , full and part-
time , cashiers , and head cashiers , are lower than the wage
rates of the Riverside Markets . However, the wage dispari-
ty was established because Respondent could not profit-
ably operate the Bi-Lo Markets as discount stores if they
paid the employees the higher wage rates which are paid at
the Riverside Markets . Without the lower Bi-Lo wages, Re-
spondent would have been unable to engage in marketing
operations in the Warren-Youngstown area , and would not
have acquired the five Bi-Lo Markets.
Fringe benefits are identical for both hourly and salaried
employees at both Bi-Lo and Riverside Markets . All meat
department employees in all stores are provided uniforms,
and all clerks in all stores are provided with aprons and
winter jackets . Bi-Lo employees in all other classifications
are furnished smocks . Employees in all other stores in the
other classifications are given a uniform allowance in lieu
of smocks . White uniforms are required at all Riverside
Markets . Only meat department employees in the Bi-Lo
Markets wear such uniforms.
Pricing policies which are effectuated at each Bi-Lo and
Riverside Market are dependent upon competition with the
competitor markets in the area . However , the Bi-Lo Mar-
kets are located within the same pricing zone and the same
geographic area . Advertising is handled from the DuBois,
Pennsylvania , headquarters , and advertising is based upon
the same factors as the zone pricing . There are currently
four price zones . The five Bi-Lo Markets comprise one of
the four zones , and the number of price zones have histori-
cally fluctuated with market conditions.
The various markets are divided also into supervisory
zones . There are currently five market supervisors. One
market supervisor is in charge of all five Bi -Lo Markets. He
has no authority over any other stores . The other market
supervisors have jurisdiction over anywhere from 2 to 12
stores . Market supervisors have stores within the same gen-
eral geographic regions , so that they may have easy access
to the stores and may visit them with the least amount of
inconvenience . All market supervisors report to Assistant
General Manager Guido Malacarne . Personnel matters are
handled by Personnel Manager Roland Spencer. Both are
stationed in DuBois.
The duties of the market managers at all stores, both
Bi-Lo and Riverside , consist of ordering products, a rou-
tine operation which is accomplished in the following man-
ner. Employees of a particular store make a periodic note
of the availability of shelf space for a particular item. The
information is punched into an MSI ordering system and
relayed over the telephone wires into a computer at the
DuBois headquarters. The central warehouse then ships
the required material to the store at scheduled delivery
times in accordance with the computer printout. Each store
manager can make the decision to drop an item which is
not selling well. However, the advertising department in
DuBois determines when to lower prices for sales. The
manager of a perishable goods department may lower a
price on perishable items in order to alleviate spoilage or
waste which might occur if the items were retained at their
normal prices.
The store managers supervise the day-to -day operations
of their stores , under the supervision of the area market
supervisors who handle all five Bi-Lo stores and the River-
side markets . Store managers also schedule store personnel
and assign them work subject to the store 's staffing plan
limitations . Store managers have no authority to establish
personnel or labor relations ' policies, and do not partici-
pate in the negotiations of labor relations contracts. They
do serve in the first step in the grievance procedure.
At the DuBois headquarters, there is a manager of gro-
cery operations who is responsible for the procurement and
distribution of all groceries in all of Respondent's stores. A
manager of meat operations, a delicatessen manager, a
bakery manager , and a produce manager have similar re-
sponsibilities over all the stores , and, in addition , are ulti-
mately responsible for the operations of their respective
departments in all stores . The general sales manager coor-
dinates all five departments , and essays to achieve opti-
mum sales in each department.
Regarding the operation of the Bi-Lo Markets , the par-
ties stipulated that , when those markets were opened, em-
ployees from the Riverside Markets were transferred in
both permanently and temporarily. All management and
all meat managers , assistant meat managers , produce man-
agers, and head floormen were promoted to the Bi-Lo
Markets from other stores . Employees at the lower levels,
i.e., cashier , clerk , and one prepacker , were brought in only
temporarily for the opening of the stores . These were con-
sidered temporary transfers , and once the new stores were
opened and operating, they returned to their regular stores.
Since the openings, several employees have transferred be-
tween the Bi-Lo and Riverside Markets.
New Employees for the Bi-Lo Markets were obtained in
three ways : ( 1) most new employees were retained through
the Ohio Employment Service ; (2) some were obtained via
classified ads in the local newspapers ; and, (3) several were
hired who walked in off the street and inquired about em-
ployment . All hiring began a month before the first of the
five Bi-Lo stores opened . Presently , new employees are
procured through the Ohio Employment Service as well as
on a "walk -in" basis, which has become more frequent
since the stores opened . At the time new employees were
interviewed for employment , those who asked were in-
formed that the UFHU was recognized as the collective-
bargaining agent for the employees of the five stores in-
volved herein . These events occurred in advance of the
UFHU meetings with the employees and before authoriza-
tion cards were signed for the UFHU.
Store managers have the authority to hire only part-time
employees , and then, only after posting those jobs in all
stores within a 15-mile radius. All part-time packers are
hired by the store managers at the local level without the
necessity for posting . If a store manager realizes that the
potential work exceeds the man-hours available through
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present personnel scheduling , he may hire part-time em-
ployees to fill the gap , but only after receiving permission
from Respondent 's personnel manager or the area market
supervisor. Conversely , if the store manager realizes that
there is not enough work to go around , he may reduce the
number of hours of part-time employees . The store manag-
er must check with Personnel Manager Roland Spencer in
DuBois before he discharges an employee . Generally, full-
time positions are filled by current part -time employees
pursuant to the contract bidding procedure from all stores.
Employees at the Bi-Lo Markets do not ordinarily inter-
change with other Bi-Lo employees or with Riverside em-
ployees, although this might occur on a temporary basis to
cover vacation periods or to fill a need during some crisis.
The current collective-bargaining agreement for the Bi-
Lo Markets and Riverside Markets was executed in March,
although it was orally agreed to on November 21, 1973,
and was scheduled to run from December 1, 1973, to May
1, 1975. The contract was executed and became effective
prior to the opening of any of the five Bi-Lo stores. Since
the dates of opening of the five stores in question , Respon-
dent has applied the terms , requirements , and provisions of
the contract, the Bi-Lo supplement , to the employees at
those installations , and these employees have been re-
quired by Respondent to become members of and pay
dues and initiation fees to UFHU. The bargaining agree-
ment contains a recognition clause in which UFHU was
recognized as the exclusive bargaining agent of the em-
ployees at all stores, including the five Bi-Lo stores. Pur-
suant to the contract, authorized representatives of UFHU
are permitted to enter Respondent 's stores for the purpose
of investigating grievances or complaints , and to talk to
employees during their nonwork time. The grievance pro-
cedures and the 30-day probationary period under the con-
tract are the same for all employees in the Bi-Lo and River-
side Markets . However , the contract does not contain an
"accretion" clause.
The parties further stipulated that, as each new store
numbered 20 through 39, which includes the five Bi-Lo
Markets , was opened , Respondent extended recognition to
UFHU covering the employees in said stores . UFHU re-
ceived and turned over to Respondent the union authoriza-
tion cards which were signed by a majority of the employ-
ees at those locations . Both the Respondent and UFHU
have consistently interpreted their collective-bargaining
agreement as requiring such recognition at newly acquired
facilities , particularly in view of the practice of initially
staffing such stores by transferring existing bargaining unit
employees from existing markets.
As each new store was acquired , the key bargaining unit
personnel , namely , the meat manager , assistant meat man-
ager, produce manager, and head floorman , have been vol-
untarily transferred to those stores from existing store per-
sonnel . The available openings at the new stores have been
posted at existing stores and employees are invited to indi-
cate a desire to fill these positions . When the five Bi-Lo
Markets were to be staffed , such posting was made in all
existing stores . The stipulation entered into by the General
Counsel and the Respondent recites innumerable instances
in which unit employees were transferred , through bidding
conducted by way of Respondent 's personnel office in Du-
Bois, Pennsylvania , from Riverside stores to Bi-Lo stores.
Continuing the stipulated narrative , the five Bi-Lo stores
are located approximately 15 miles from the existing River-
side Market store in Brookfield, Ohio, and approximately
25 miles from the Sharon, Pennsylvania, store. Other Riv-
erside stores of Respondent are as distant as 30 miles from
each other . Respondent exercises centralized control over
employee-relations for its stores , including the five Bi-Lo
enterprises . All initial hiring , other than transfers , is done
by Personnel Manager Roland Spencer , with the assistance
of District Manager Robert Hockenberry. Hiring after a
store opens can be performed by the local store manager
within the employee complement established by Spencer.
During the new employee's probationary period, the per-
sonnel manager checks the employee 's resume , references,
and the probationary evaluation report prepared by the
store manager, and makes the ultimate decision on whether
the employee will be retained in Respondent 's employ be-
yond his or her probationary period. Decisions to dis-
charge or discipline an employee are formulated by the
personnel manager after the area market manager reviews
the facts and circumstances with the former . Other person-
nel policies , i.e., benefits , work rules , etc., are established
centrally at corporate headquarters in DuBois , or through
the companywide bargaining agreement. A decision as to
whether to fill job vacancies lies within the province of the
personnel manager . If a vacancy is to be filled , it is posted
companywide for bid. The selection of the successful bid-
der is made by the personnel manager , subject to the griev-
ance procedure in the collective -bargaining compact.
Decisions are made centrally by responsible company
officials in DuBois , Pennsylvania , to determine the number
and selection of items of merchandise to be sold in each
store ; to ascertain the makeup of the ad, its placement, and
the prices to be quoted therein; and, to perfect all account-
ing procedures and control merchanisms. In addition, cen-
tral decisions emanating from headquarters in DuBois de-
termine the physical arrangement of . the stores, the
maintenance and repair of buildings , matters of sales' pro-
motions, warehousing, and deliveries.
The parties to this litigation stipulated that no other la-
bor organization has claimed to represent a majority of the
employees in the five Bi-Lo stores or in any one of them,6
and no union has filed a representation petition with the
Board seeking an election among the employees in these
five stores or in any one of them. Moreover, so far as this
record stands, with the possible exception of Frank Ludwig
Pakalnis, Jr., the RCIA did not represent a solitary em-
ployee at a single Bi-Lo store during the times material
herein.
As chronicled heretofore, the General Counsel maintains
that it was offensive to the provisions of Section 8(a)(1))
and (2) of the statute for Respondent to extend the terms
of an existing contract with UFHU to the Bi-Lo stores'
employees which contained a union-security provision. On
the other hand, Respondent asserts that it was privileged to
6 At the hearing, the RCIA initially objected to this aspect of the stipula-
tion , claiming that it had sent a letter to Respondent on February 28 assert-
ing that it represented a majority of the employees at an unidentified BI-Lo
store . No such letter was introduced or received into evidence.
PENN TRAFFIC COMPANY
so because the acquisition of the five stores constituted an
accretion to the existing companywide bargaining unit.
In view of the geographic proximity of the Bi-Lo stores
to the stores in Brookfield , Ohio , and Sharon, Pennsylva-
nia, which is in keeping with the geographic separation
which has historically existed between Respondent's other
stores ; the extent of interchange of employees between all
stores owned and operated by Respondent ; the centraliza-
tion of employee -relations and other business functions at
the headquarters in DuBois , Pennsylvania ; the absence of
any bargaining history for the employees in the five Bi-Lo
markets ; the fact that no labor organization has petitioned
for an election among the employees in the five Bi-Lo
stores or in any one of them ; and upon the entire record
197
made herein , I find and conclude that the acquisition of
the Bi-Lo stores constituted an accretion to the established,
existing companywide unit and that an overall unit, includ-
ing the Bi-Lo facilities , is appropriate for the purposes of
collective bargaining within the meaning of the Act. I shall
therefore dismiss the complaint filed herein in its entirety?
[Recommended Order dismissing complaint omitted
from publication.]
7 Save-On Drugs, Inc., 138 NLRB 1032 ( 1962).
In view of my findings and conclusion that the Bi -Lo stores constitute an
accretion to the existing , companywide unit , I deem it unnecessary to con-
sider the General Counsel's contention that various employees at the Bi-Lo
Markets might have been urged and solicited by Respondent 's supervisory
personnel to sign UFHU membership cards