Primrose Super Market of Malden, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1969

178 N.L.R.B. 566 (N.L.R.B. 1969)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Primrose Super Market of Malden , Inc. and Retail
Employees Union , Local 1435 , Retail Clerks
International Association , AFL-CIO, Petitioner.
Case 1-RC-10038
September 22. 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Reginald Gagnon and
Norman Zankel, Hearing Officers of the National
Labor Relations Board.' After the close of the
hearing, the Employer filed a brief with the Board.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
The Board has reviewed the Hearing Officers'
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 and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Sections
9(c)(1) and 2(6) and (7) of the Act.
4. The Petitioner requests an election in a unit
limited to all meat department employees in the
Employer's Malden. Massachusetts, supermarket,
excluding service delicatessen employees. The
Employer contends that the only appropriate unit is
all employees in all its stores, or in the alternative
all meat department employees in all its stores, but
that service delicatessen employees should be
included if the Board finds a meat department unit
appropriate. The parties stipulated that the meat
department manager he included in the unit.
The Employer operates a chain of nine discount
supermarkets with executive offices in Haverhill,
Massachusetts There is no history of collective
bargaining in the Malden store, but a single-store
unit in the Employer's older Salem, Massachusetts,
store was found by the Board in 1964 to he an
appropriate unit.2
'After the hearing and pursuant to Sec. 102.67 of the National Labor
Relations Board Rules and Regulations , Series 8, as amended, the
Regional Director issued an order transferring the case to the National
Labor Relations Board for decision
'Primrose Super Market of Salem , Inc . 148 NLRB 610, enfd 353 F 2d
675 (C A I), cert denied 382 U S 830, motion for reconsideration denied
The Employer's stores are located in the
Massachusetts communities of Haverhill,
Newburyport, Peabody, Melrose. Maiden, Roxbury,
Georgetown. and Salem. From the central office in
Haverhill it is approximately 23 miles to the Malden
store, 30 miles to Roxbury, 28 miles to Salem, 16
miles to Newburyport, and 20 miles to Georgetown.
The nearest stores to Malden are at Melrose, 2
miles, Peabody, 8 miles, and Newburyport, 22
miles.
Each store is incorporated separately. and four
supporting corporations handle real estate,
advertising, trucking, and management functions.
Each corporation keeps separate accounting records
and files separate tax returns. The management
corporation handles all payroll and personnel
records. It charges each store's weekly payroll
against that store's labor budget account. The
officers and directors for all the corporations are the
same: and brothers Arthur and George Karembelas,
President and Treasurer-General Manager,
respectively, own all the stock.
All nine stores have the same business hours,
except that Malden and Peabody close at a later
time on 3 nights per week pursuant to the practices
in their respective shopping center locations. The
Haverhill office directs maintenance and repair for
all stores, and such work is performed by employees
of the real estate corporation or by independent
contractors. Banking is somewhat centralized, but at
least the Maiden store has its own account in a local
bank. There is a direct telephone line from the
offices to the stores. Employees sometimes work at
a second store on their day off and generally receive
one paycheck for the week: but on many occasions
such employees receive two checks and, it appears,
are not paid at overtime rates for work performed
at the second store. Merit raises and fringe benefits
are administered on a chainwide basis, but seniority
is determined on a storewide basis. When an
employee requests a pay raise outside the regular
merit system, his department supervisor makes the
decision after consulting his department manager
and/or store manager. Full-time employees are
hired centrally for the chain, but part-time
employees, of whom there are many, generally live
in the community in which they work and are hired
either centrally or at individual stores.
The business policy of each store is determined by
the Haverhill office At weekly meetings the general
manager and the department supervisors-_ meat,
grocery, and, produce-- establish a sales plan. This
includes specials, pricing, merchandising, and labor
budgets. Then these Company officials negotiate the
purchase of merchandise for the week and arrange
for its transportation from suppliers to the stores,
from temporary storage at Salem and Melrose to
the stores, and in substantial quantities from store
353 F 2d 675 (C.A I) See also Primrose Super Market of Salem, Inc.
17l NLRB No 140
178NLRBNo 90
PRIMROSE SUPER MARKET OF MALDEN, INC
to store. Advertising for the weekly plans is carried
out almost exclusively by direct mail flyer, and one
flyer mailed from Haverhill serves all stores. The
general manager and the three department
supervisors work from Haverhill and bear overall
responsibility for operations. George Karembelas,
the general manager, visits each store about twice
each week, and the department supervisors visit each
store for a few hours several times per week. The
stores are in frequent contact with the central offices
via the direct telephone lines. Each store has a
manager, an assistant manager, a meat department
manager, a grocery department manager, and a
produce department manager The department
supervisors go over the weekly sales plans with their
respective department managers at individual stores.
The individual store managers see that their stores
open on time, make bank deposits or see that they
are made, set up the registers, place and shift
cashiers, and have general responsibility for seeing
that the sales plans are carried out, and coordinate
the work of the department managers. As a general
proposition they are supposed to check with
Haverhill concerning most day-to-day matters.
However, in actual practice, usually without
consultation, they allow employees to leave work
early, change employee work schedules, often select
employees to receive overtime work, see that
employees arrive on time for work, adjust customer
complaints, and make recommendations on
probationary employees that carry "great weight."'
They receive a bonus based on sales volume, and
can increase that bonus by "run[ning] a better
store."
The store department managers meat, grocery,
and produce - also receive a bonus, based on sales
volume in their respective departments. They set up
the employee work schedules, and any approval of
those schedules by central supervisors is a formality.
They schedule employee breaks and shift employees
from task to task, on their own authority. As a
general proposition they are supposed to check with
Haverhill concerning most other day-to-day matters.
In practice, usually without consultation, they
change the employee work schedules, release
employees early from work, make recommendations
on probationary employees and merit promotions
that carry great weight, set prices to the extent of
disposing of aging or overstocked merchandise, and
make some purchases of merchandise. The Malden
meat department manager hires part-time employees
on his own authority, and, while this may be a
technical violation of Company rules, he has never
been criticized or disciplined for doing so. Malden
meat department employees Thomas Marshall and
Robert Moylan testified that their meat department
manager set up their work schedules, changed those
'In an operation with approximately 450 employees and a high employee
turnover, grocery and front-end supervisor Fred Moore could recall only
one instance in which a store manager's recommendation was not followed
in this regard
567
schedules on the spot, and released employees early
from work, without, to their knowledge, consulting
the meat supervisor or anyone else.
There is some transfer and interchange of
employees among the nine stores, ranging from
half-day fill-ins to permanent transfers. However,
the record show's that the vast majority of such
personnel shifts are confined to the extraordinary
circumstances surrounding the opening of new
stores." in view of the limited number of temporary
and permanent transfers occurring under ordinary
business conditions, the size of the chain's workforce
(some 450 employees), and the high rate of turnover
of employees, it appears that only a very small
portion of the workforce has any history of
employment at more than one store. Additionally,
most of those employees who have worked at more
than one store have done so only to the extent of
one or two short fill-ins away from a regular place
of employment.5 We conclude from the record that
employee transfer and interchange among the nine
stores is not extensive under normal business
conditions.
The Malden store opened in August 1967. There
was extensive employee transfer and interchange at
the opening, and for a few months thereafter,' but
after January 1. 1968, the workforce stabilized for
normal operations. After that date there were
relatively few shifts of personnel involving the
Malden operation, except for a number of
temporary fill-ins connected with the opening of still
'Employer's Exhibit 4 is a set of transcriptions from its payroll records
of January 1966 .May 1968, showing the number of interstore personnel
moves during that 2 1/2 year period Employer's Exhibit 5 is a summary
of these transcriptions , and shows that 198 different employees participated
in 962 such moves However, an examination of the transcriptions shows
that these figures are not accurate (1) The total number of fill-ins and
longer transfers shown in Employer's Exhibit 5 has been inflated by 198,
by raising each individual total in Employer's Exhibit 4 by one It appears
that the individual totals were tabulated correctly , then erased and raised
Iherc is no explanation in the record for this increase (2) The summary
total has been inflated by more than 50, by showing that various
employees who worked in a store at the end of a business year
"transferred" into that same store to start the next business year. (3) The
transcriptions contain obvious errors which inflate the totals . A spot check
of the transcriptions shows, for example, that employees Richard Wilcox.
John Pirotta, and Gail Shepard are credited with "transferring" several
times each into stores they were already working in Thus it appears that
in many instances the compilers of the statistics were counting time cards,
not transfers . (4) The list of employees includes at least one supervisor,
Malden meat department manager Gabriel Flores it is possible , therefore,
that the names of other supervisors are included in this list, with attendant
inflation of the transfer totals (5) The totals include the "tansfers" of at
least eight employees who, admittedly, regularly work in two or more
stores (6) The totals include the extraordinary short, long term, and
permanent transfers involved in closing a store at Lawrence, opening a new
store at Malden, and opening a new store at Roxbury An examination of
the transcriptions shows that the opening of the Malden store alone
accounted for almost 250 personnel moves of varying duration
' An examination of the transcriptions in Employer 's Exhibit 4 shows
more than 60 of the 198 employees (minus supervisors ) with some history
of working in more than one store fell into this class
'Employer's Exhibit 4 shows 164 moves to and from Malden in August,
40 moves in September, 8 moves in October, 22 moves in November
( including fill -ins to cover the mass discharge of 8 employees for theft).
and 15 moves in December (13 of which were returns to a regular place of
employment for employees who had been assigned to open the store in
August)
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another new store, at Roxbury.' With reference to
the Maiden meat department, the record shows that
at least three employees who originally opened that
operation, Robert Moylan, Thomas Marshall, and
Mary Purdy, were still employed there on a regular
basis at the time of the hearing in this case. Their
only non-Malden employment consisted of scattered
day-off work at other stores. Meat department
employee Robert Bolduc began working for the
chain at Maiden in January 1968, and remained
there until transferred at his own request in June.
Edward Lavoie began working for the chain in the
Malden meat department in February 1968, and had
not worked at any other store at the time of the
hearing in this case. Additionally, the record
discloses the names of six part-time Malden meat
department employees who have not worked at any
other store. On the record as a whole, we conclude
that employee transfer and interchange involving the
Malden store and the Malden meat department is
not extensive.
Eight weeks before the hearing in this case the
Employer set up a service delicatessen at Malden,
similar to the ones at Haverhill and Peabody, and
distinguished from the self-service delicatessen
counters at all stores, featuring both prepackaged
and fresh-cut cold-cuts, salads, and the like. It is on
the opposite side of the store from the red meat
cases, some 60 feet away, and has the only separate
cash register in the store. The service delicatessen is
included with the meat department in the
Employer's weekly sales plans, including purchasing
and pricing. The meat supervisor is responsible for
hiring and firing, and while there is no separate
manager, the meat department manager
occasionally oversees its operation. Delicatessen
sales reports are kept separate from meat sales
reports up to the point of final totals. but the meat
manager 's bonus is based on that combined total.
Delicatessen labor costs are charged against the
meat department labor budget in bookkeeping.
Meat department employees cut orders for the
service delicatessen and cook food for it on a
rotisserie. At times meat department employees
cover for delicatessen employees who are absent or
on a break, and the record does not show that either
meat or delicatessen employees have any
interchange with other departments. Meat and
delicatessen employees wear white smocks, while
other employees wear green smocks. Meat and
delicatessen pay rates are similar to each other and
somewhat higher than the pay rates of other
employees.
In view of the foregoing, we find that the
considerations which normally warrant finding
appropriate a separate single-store unit of meat
'Employer 's Exhibit 4 shows 17 moves in January (most of which were
permanent transfers into the store), 7 moves in February (most of which
were short fill-ins to help open another new store at Roxbury ), 4 moves in
March (mostly to Roxbury ), 16 moves in April (almost all of which were
fill-ins at Roxbury)
department employees' are present in this case. Here
the record does not establish exclusive control over
all stores and all matters affecting employees by
central office executives.' .Rather, the real locus of
effective exercised authority over day-to-day
personnel matters, both in fact and in the eyes of
the workforce, lies in the meat department itself.
The meat department manager makes up the
employee work schedules, changes those schedules,
sets employee breaks, shifts employees from task to
task, releases employees early from work, hires
part-time employees, makes recommendations on
probationary employees and promotions that carry
great weight, and generally directs the operations of
his department. The Employer's general rule
purportedly requiring prior, or at least subsequent,
supervisory approval of every matter affecting
day-to-day operations and personnel is not enforced,
and managers who violate the general rule are
admittedly not criticized or disciplined for the
violation. Higher management approval is sought
irregularly, and when sought is given pro forma.
The store manager's authority further dilutes the
general proposition of pervasive central control, as,
to some extent, do the bonuses based on sales at
individual stores and in individual departments."'
The community of interests of the Malden meat
department employees differs from that of other
employees in the same store and that of other meat
department employees in other stores. Effective
control over the matters of concern to them lies with
their department manager, and their duties, attire,
wage rates, supervision, and conditions of
employment set them apart from other employees in
the store. Employee transfer and interchange is not
extensive, except in connection with the opening of
new stores and the closing of old stores. In short,
the evidence here is not sufficient to overcome that
presumption that a single-store unit is appropriate."
The parties stipulated that the Malden meat
department manager be included in the unit." The
record shows, however, that the Malden meat
department manager is salaried and receives a bonus
based on sales, makes up the employee work
schedules, responsibly directs employees at their
jobs, hires part-time employees, makes effective
recommendations on raises and probationary
employees, and is regarded by the employees as
their supervisor. In these circumstances we cannot
accept the stipulation of the parties. We find that
the meat department manager is a supervisor as
'The Great Atlantic and Pacific Tea Company , Inc. 130 NLRB 226,
Weis Markets , Inc., 142 NLRB 708, Mock Road Super Duper , Inc, 156
NLRB 983
'Cf. Mott' s Shop-Rite of Meridan , Inc, 174 NLRB No 157, where
there was minimal local control over employees and their day-to-day
problems by the store managers
"See, Shop' n Save Co . Inc 174 NLRB No 156, where individual
store profit sharing was a factor in finding a single-store unit appropriate
"See, Haag Drug Company , 169 NLRB No 111
"Near the close of the hearing the Petitioner indicated a willingness to
withdraw from this stipulation
PRIMROSE SUPER MARKET OF MALDEN, INC.
defined in the Act, and we shall exclude him from
the unit."
The community of interests of the service
delicatessen employees is clearly identified with that
of the meat department employees. Administratively
the service delicatessen is part of the meat
department. There is some employee interchange
between the meat department and the delicatessen,
but no interchange with the other store departments.
The meat and delicatessen employees share similar
rates of pay that are generally higher than the rates
of other employees, and they share similar attire,
similar duties, and common general supervision.
Therefore, we shall include the service delicatessen
employees in the unit.'
Accordingly, upon the above facts and the record
as a whole, we find that the following employees of
the Employer constitute an appropriate unit for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
569
All meat department employees of the Employer
at the Employer's Malden, Massachusetts,
supermarket, including service delicatessen
employees, but excluding all other employees,
guards, the meat department manager, and other
supervisors as defined by the Act.
[Direction of Election15 omitted from publication.]
"Vent Control Inc of Ohio , 126 NLRB 1134
" Compare, Seaway Food Town , Inc, 171 NLRB No 107.
"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, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all of the eligible voters must
be filed by the Employer with the Regional Director for Region l within 7
days of the date of the Decision and Direction of Election . 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