Primrose Super Market of Salem, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1964

148 N.L.R.B. 610 (N.L.R.B. 1964)

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, to remain , or to refrain from becoming or
remaining , members of a labor organization of their own choosing.
BIG TowN SUPER MART, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue , Cleveland, Ohio , Telephone No. Main 1 -4465, if they
have any question concerning this notice or compliance with its provisions.
Primrose Super Market of Salem, Inc. and Local 1435 , Retail
Clerks International Association , AFL-CIO. Case No. 1-CA-
4282. August 28, 1961
DECISION AND ORDER
On May 13, 1964, Trial Examiner W. Gerard Ryan issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Decision. Thereafter, the Respondent filed exceptions
to the Decision, and both Respondent and the General Counsel filed
briefs with the Board.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
'In adopting the Trial Examiner 's findings , we correct the following inadvertent errors
which appear in the Decision The Respondent 's principal office is located in Haverhill,
Massachusetts , rather than Salem, Massachusetts . Piimrose Super Market of Newbury-
port, Inc , located in Newburyport, is added to the list of Respondent ' s discount markets
appearing in the section entitled "The Appropriate Unit " The figures setting forth the
number of transfers between the various stores refer only to transfers in which the Salem
store is involved ( footnote 5).
148 NLRB No. 66.
PRIMROSE SUPER MARKET OF SALEM, INC.
ORDER
611
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Primrose
Super Market of Salem, Inc., its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan in Salem,
Massachusetts, on January 6, 7, 8, and 9, and in Boston, Massachusetts, on Jan-
uary 15, 16, and 17, 1964, on the complaint of General Counsel and the answer
of Primrose Super Market of Salem, Inc., herein called the Respondent.' The
issue litigated was whether the Respondent violated Section 8(a)(1) and (5) of the
Act. The General Counsel, the Union, and the Respondent filed briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I find that the Respondent is, and
has been at all times material herein, a corporation duly organized under and exist-
ing by virtue of the laws of the Commonwealth of Massachusetts, and that at all
times herein mentioned, Respondent has maintained its principal office and place
of business at 72 Loring Avenue in Salem, Massachusetts, hereinafter called the
Salem store, and is now, and continuously has been, engaged at said store in the
retail, sale, and distribution of groceries, meat, and related products. In the course
and conduct of its business, Respondent. causes, and continuously has caused at all
times mentioned herein, large quantities of groceries, produce, meat, and related
products used by it in its retail stores to be purchased and transported in interstate
commerce from and through various States of the United States other than the
Commonwealth of Massachusetts. The Respondent sells and distributes groceries,
produce, meat, and related products of which the gross value exceeds $500,000
annually. The Respondent is and has been engaged in commerce within the meaning
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer admitted, and I find that Local 1435, Retail
Clerks, International Association, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR PRACTICES 2
A. The 8(a) (1) volations
On the approximate dates set forth below, the Respondent by its then manager of
the Salem store, Salvatore Perrotta, and an admitted supervisor within the meaning
of the Act, engaged in the following conduct which I find to be violative of Section
8(a)(1) of the Act.
On or about October 12, employee Gail Ann Rizzotti attended a union meeting
with other employees at the union hall and the meeting which began at the union
hall continued at her home. On October 15 Perrotta stated to her that she "stabbed"
him in the back by joining the Union and that he knew all about her going to a
union meeting on the preceding Saturday morning because there was someone tell-
ing him everything that was going on and that he knew about the employees going
I The charge was filed and served on the Respondent on August 28, 1963 The amended
charge was filed and served on September 17, 1963. The complaint issued on Novem-
ber 8, 1963.
2 All dates herein refer to 1963 unless otherwise stated
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over to her house. Perrotta then told her if the Union came in that they would not
get the break periods they were now getting : that break periods would have to be
taken inside the store instead of going outside to a diner ; that hours would be cut
down ; and finally that they were hurting him personally because George Karam-
belas ( treasurer and general manager of Respondent ) would have to use the money
for lawyers to stop the Union instead of using the money to get Rizotti a better
paying job. Perrotta further interrogated her by asking if she were for the Union;
told her all the extra money the employees would get would go for dues , assessments,
and initiation fees; and solicited her withdrawal from the Union if she were not
for the Union by telling her she could get out by signing two letters, one of which
she would leave at his desk and mailing the other to the Union.
In the latter part of August employee John Tachuk asked Perrotta what he thought
about the Union. Perrotta answered by asking Tachuk what he thought. Tachuk
replied by saying all the kids were afraid to join because they might be fired to which
Perrotta replied , "No, just the troublemakers in there," pointing to the meatroom
where Bill Dixon worked . (Dixon had passed out and collected union cards.)
About 1 week later Perrotta told Tachuk three more letters withdrawing from the
Union had been signed and asked Tachuk if he did not want to sign one now.
In August , Perrotta told employees Gerald Verrette and Joseph Arico that the
Union would not get in and the Union was not good for the store . Arico remarked
the store would probably close if the Union got in and Perrotta stated if it did not
close there would be no pay increase and that hours of work would be cut to give
employees the same money. Perrotta then asked if they were in the Union and
specifically asked Verrette why he wanted the Union.
In the last part of August , Perrotta solicited Verrette to withdraw from the Union
by giving him paper and pen and telling him what to write. Perrotta supplied the-
envelope and the union address. Verrette signed -two letters . He gave one to Perrotta
and tore up the other one addressed to the Union when Verrette got outdoors.
In the middle of September , Perrotta threatened reprisals by telling employee-
Carol McIntire that if the Union got in there would be a money quota; if an em-
ployee did not work faster he would be replaced by one who could work faster-
and keep up with the quota; while they might make a few more dollars in the long
run they would pay it out in union dues ; and the Union was not wanted because
they wanted one big happy family. -
In the first part of September , Perrotta asked employee David Carpentier if he had'
gone to a union meeting on the previous day and if he was going to stay in the
Union . Perrotta asked Carpentier if he wanted to sign out of the Union and when,
Carpentier said he did not care, Perrotta told him to make out two slips of paper;
return one to Perrotta and send one to the union office.
Approximately 1V2 weeks later in September , Perrotta asked Carpentier if he
had gone to a union meeting and when Carpentier said he had not, Perrotta told
him that he had heard that he had gone to the meeting.
In the middle or last part of August , Perrotta said to employee Robert Panneton
that Perrotta had heard the Union was coming in the store and asked Panneton•
if he wanted it. Panneton replied in the affirmative.
At the end of September Perrotta asked Panneton if he had signed a letter to get
out of the Union (Panneton had told Perrotta a couple of days earlier that he did
not want the Union because everything is falling apart ). Perrotta told him to-
ask Beatrice Karprowicz (head cashier ) for paper and pencil and she would tell
him what to write. Karprowicz gave him Peter Dragonis ' letter of withdrawal-
to copy and she had him write an extra copy for herself which she took. Pan-
neton lost the copy to the Union which he was supposed to mail.
In the middle of August , Perrotta told employee Peter • Dragonis that everyone
was signing union cards and asked Dragonis if he were turning on him too.
During the last of August , Perrotta asked- Dragonis where all the - big mouths were
who were supposed to be backing them up . Perrotta said that everybody was send-
ing in letters pulling their names out of the Union right and left. Perrotta told
Dragonis he was one of the last ones and Dragonis , not wanting to be one of the
last, asked Perrotta for a form of withdrawal . Perrotta replied he did not have a
form but to return the following Monday. On Monday , Perrotta supplied him
with paper , pencil , and envelope and the wording to be used. He told Dragonis
to go to the backroom to fill it out , making two copies-one for the Union and one-
for Perrotta . Dragonis gave one to Perrotta and mailed the, other to the union
office. Although the letter is dated August 27 Dragonis testified it was actually-
written on August 26.
PRIMROSE- SUPER MARKET OF SALEM) INC. 613
On October 16 Perrotta told Dragonis he heard they had a union meeting and that
Dragonis had talked some of the girls into signing cards but Dragonis denied it,
saying it was just a party.
The above facts are based on the credited testimony of Rizzotti,3 Tachuk, Verrette,
McIntire, Carpentier, Panneton, and Dragonis. Denials by Perrotta have not been
credited.
On the approximate dates set forth below the Respondent by its Meat Supervisor
Andrew Fichera, an admitted supervisor within the meaning of the Act, engaged
in the following conduct which I find to be violative of Section 8 (a) (1) of the Act.
During the last part of August, Andrew Fichera asked employees Robert Sesser and
David Carpentier, "Why don't you guys sign out of the union like the other guys?"
Then he mentioned as having signed out employees Verrette, Dragonis, and Michaud
and stated that he was only trying to help them as the Union is not going to help them.
When Sesser replied that he was not going to sign out Fichera answered, "It is up to
you-make up your own minds" or words to that effect.
Carpentier corroborated Sesser's testimony as to the above and, in addition to tell-
ing them to drop out of the Union, Fichera also stated that the Union was a "hazard."
Also during the last part of August, Fichera asked employee Robert Panneton
if he knew the Union could assess him any time it wanted to. Panneton replied he
did not care as he no longer was in the Union.
The above facts are based on the credited testimony of Sesser, Carpentier, and
Panneton. Denials by Fichera have not been credited.
In arriving at the foregoing facts, I have not relied on controversial testimony with
respect to Head Cashier Beatrice Karprowicz, introduced by the General Counsel
not as evidence of any unfair labor practices but solely as background evidence. The
facts as found do not require that background evidence to explain or throw light
on Respondent's conduct. Accordingly, Respondent's motion to strike out evidence
relating to Beatrice Karprowicz as a supervisor or agent of the Respondent is granted.
B. The violation of Section 8(a)(5)
The Appropriate Unit
The complaint alleged and the answer denied that all full-time and regular part-
time employees of Respondent at its Salem store, exclusive of casual employees,
guards, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act. The Respondent stipulated that on or about August 9 there were
35 employees in the Salem store of whom 23 had signed cards designating the Union.
The Respondent admitted the allegations of the complaint that on or about
August 9 and 16, and at various times thereafter, the Union requested Respondent to
bargain collectively in respect to rates of pay, wages, hours of employment, or other
conditions of employment with the Union as the exclusive representative of all the
employees in the unit set forth above. The Respondent further admitted that on or
about August 9, and at all times thereafter, it refused and continues to refuse to bargain
collectively with the Union as the exclusive representative of all the employees in the
unit described above. By way of further answer the Respondent averred that it
advised the Union that the aforesaid unit was not an appropriate unit and that
Respondent doubted that the Union was designated or selected by a majority of the
employees in an appropriate unit for the purposes of collective bargaining and
further averred that the unit described above was not an appropiate unit within the
meaning of Section 9(b) and denied that the Union represented a majority of the
employees in an appropriate unit within the 'meaning of Section 9(b). Thus the
issue -presented is whether the employees of the Salem store constituted an appropriate
unit. The Respondent contends that the Salem store is so integrated with its four
other stores as to negate any separate identity and accordingly under such circum-
stances the employees in the Salem store do not constitute an appropriate unit.
a At the hearing the Respondent offered in evidence. the prehesring affidavit of Rizzotti.
The General Counsel objected and Respondent withdrew its offer The Union thereupon
offered the affidavit as its exhibit. The General. Counsel withdrew his objection. I re-
jected the exhibit although the transcript of,the hearing does not show any ruling by the
Trial Examiner The reporter has marked it as received in evidence and included it in
the exhibit file (not in rejected file) '-'My notes show it was rejected and at the end of the
bearing I referred to it as a rejected exhibit by stating "The Union exhibit file consists of
a document identified as No.' 1. which was offered by the Union and which was rejected "
Accordingly, the exhibit should be placed in the rejected file.
614 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
The Respondent, Primrose Super Market of Salem, Inc., operates a discount super-
market in Salem, Massachusetts.
There are five corporations which operate discount markets, all in Essex County,
Massachusetts, as follows:
Primrose Super Market of Salem, Inc., located in Salem; Primrose Super Market
of Peabody, Inc., located in Peabody; Primrose Super Market of Georgetown, Inc.,
located in Georgetown; and Primrose Super Market of Haverhill, Inc., located in
Haverhill.
There are four other corporations:
Associated Management Corporation which handles all of the office functions and
payroll and is responsible for the salaries of management and office help; Capital
Leasing Corporation which provides the trucking facilities from the wholesalers to
the various stores and the transfer of merchandise from store to store; Primrose
Development Corporation which holds the leases on the real estate from the owners
and in turn leases the various properties to the individual operating corporations,
except the Peabody Corporation; and Consolidated Advertisers, Inc., which handles
the advertising for the five stores.
The stores are separated from the Salem store approximately as follows: Pea-
body-4 to 5 miles; Georgetown-20 miles; Haverhill-28 miles; Newburyport-
26 miles. Salem and Peabody are contiguous cities, the Respondent's Salem store
being located about one-half mile from the Peabody city line.
Prior to 1963 the five stores were operated as regular supermarkets and during
1963 all the stores were converted to discount supermarkets on the following
dates: Newburyport-April 10; Salem-May 22; Peabody-July 10; Georgetown-
July 10; and Haverhill-August 7.
All the stores are serviced by a central office located in Haverhill, Massachusetts.
The central office handles all the bookkeeping functions of all nine corporations
regarding payroll, bills, social security deductions, unemployment, and personnel
records. The stock in all nine corporations is owned by George Karambelas and
his brother, Arthur Karambelas. George Karambelas is the general manager and
treasurer and Arthur Karambelas is president of all nine corporations. The officers
and directors are the same for all nine corporations. The labor relations policy
is the same for all stores and includes the same wage policy on rates, holidays,
vacations, health and welfare, and other benefits and working conditions. All the
stores have the same payroll week. The hours of business for the Salem and Pea-
body stores are exactly the same.
The frozen foods for all the five markets are warehoused in a large walk-in freezer
in the Salem store and are transferred to each of the stores as required. Some
of the groceries are stored in the Peabody store and others are stored in the Haverhill
store. The meats are delivered to the Peabody store and from there distributed to
the other stores.
The advertising is common for all five stores The newspaper advertising in
The Salem News includes both the Salem and Peabody stores and the addresses of
both stores are set forth on the same size and type print. The flyers and handbills
include the names and addresses of all five stores and each store is given equal
mention.
The same prices are charged in all the stores, the same merchandise is sold in all
the stores, and specials are put on sale in all the stores on the same dates and at the
same prices. Sales plans are determined by the meat, produce, and grocery super-
visors and are the same for all the five stores. The retail prices for the merchandise
is set by said supervisors. General Manager George Karambelas and the three
supervisors operate out of the central office in Haverhill, Massachusetts, and to-
gether they have the overall responsibility for the operations of all five stores. The
meat supervisor has charge of the meat department in each of the stores. He does
the purchasing (except emergency fill-in or shortages), prepares the advertising.
determines the retail prices, interviews and recommends applicants for full-time and
part-time jobs in the meat departments, recommends transfers, both permanent
and temporary, between the various stores, always subject to the approval of Gen-
eral Manager George Karambelas. If the net or gross return or the volume shows
a decrease in a particular store, the meat supervisor discusses the matter with the
department meat manager of the particular store and the general manager and not
with the store manager.
The grocery and the produce supervisors act in the same capacity and with the
same functions and responsibility as the meat supervisor for the groceries and
produce department respectively in each of the stores. The three supervisors dis-
cuss with George Karambelas wage increases for the employees in their respective'
departments.
PRIMROSE SUPER MARKET OF SALEM, INC. 615
The general manager and the three supervisors usually visit all the stores several
times each week. George Karambelas testified that employees are issued a manual
when hired showing that they are hired subject to transfer but upon further exam-
ination Karambelas admitted that employee manuals were not given to employees
in 1962 or 1963. Furthermore, there is the testimony of Salvatore Perotta, office
manager of the Salem store , who denied that anything was said to him in connection
with transfers at the time he was hired.
The general manager after consultation with the supervisors and the store man-
ager determines the number of employees in each store.
The evidence in the record supports the conclusion that the unit at the Salem
store is an appropriate unit . The General Counsel has the burden of proving only
that the unit sought is an appropriate unit ; not that the unit is the most appropriate
unit. (Dixie Belle Mills, Inc., a Wholly-Owned Subsidiary of Bell Industries, Inc.,
139 NLRB 629, 631.)
In Sav-On Drugs, Inc., 138 NLRB 1032, the Board held that single-store units
may be found appropriate after looking to the totality of the circumstances includ-
ing but not limited to the circumstances found to be decisive in that case .4
The circumstances in the instant case which would allow a finding that the Salem
store unit is an appropriate unit are as follows:
(a) The Salem store is geographically separated from the other stores by dis-
tances ranging from 5 to 28 miles, i .e., 28 miles from the Haverhill store; 26 miles
from the Newburyport store; 20 miles from the Georgetown store; and 5 miles from
the Peabody store. The Salem store is most distant from the Haverhill store where
the main offices are located. Because of this geographic separation the various
stores advertised in separate newspapers based on area circulation. The Haverhill
and Georgetown stores advertise in a Haverhill newspaper. The Newburyport
store advertises in a Newburyport newspaper and the Salem newspaper carried the
advertising for the Salem and Peabody stores. Different competitive markets re-
sulted from the geographic separation in that although the Salem and Peabody
stores are open during the same hours, the Newburyport, Georgetown, and Haver-
hill stores are open at other times.
(b) The five stores are separately incorporated.
(c) The substantial authority of the Salem store manager is another factor in
finding that a single-store unit is appropriate. General Manager George Karambelas,
Grocery Supervisor Moore, and Store Managers Perrotta and Ouellette all conceded
that the store manager of the Salem store is in charge of the day-to-day operations
of the store even though the general manager, produce supervisor, meat super-
visor, and grocery supervisor have overall responsibility over the five stores.
As part of his duties the Salem store manager unlocked and opened the store each
morning. He was the only one in the Salem store who knew the combination to the
safe. Each morning he would withdraw from the safe the money for the cash
registers. He checked with department heads to see how they were set for
merchandise for each day, if they knew their sales plans, what their sales plans were,
and their sale items. The store manager maintained the master price book in each
store and maintained and created the displays in the store and directed his department
heads on these matters. He also had the responsibility to handle customer com-
plaints. Store Manager Perrotta of the Salem store was paid a salary with a bonus
arrangement based on sales of the store. He had complete authority to make out the
weekly work schedules of all the employees in the store and only he could give
permission to employees to leave their work early. The store manager gives initial
approval to employees who want to lay off and also had authority to lay off and
recall employees. Store Manager Perrotta testified that he had determined that two
employees should be laid off because there was a slack in business. He also had full
authority to arrange the break Periods of the employees and had authority to fire
or effectively recommend the firing of employees and to hire full-time and Part-time
employees or to effectively recommend that they he hired Both Store Manager
Perrotta and General Manager Karambelas testified that Karambelas did not even see
any of the 20 part-time employees who were hired in May 1963. In addition
Karambelas consulted with Perrotta when a new store manager for the Salem
store was appointed. The store manager took the employees' timecards off the rack
4In finding a single-store unit noproprinte the Board in Sal)-On Drugs, Rvpre con-
sidered: (1), the geographic separation of the single store; (2) the substantial authority
of the store manager: (2) the minimal interchange of employees between the single store
and other stores ; (4) the absence of a bargaining history for any of the employees in the
division or broader group, and (5) the fact that no labor organization is seeking to rep-
resent employees on a broader basis.
,616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and figured the hours of pay that each employee was entitled to receive. The store
manager made the bank deposits in a Salem bank. Store Manager Perrotta testified
that he had a meat manager, produce manager, grocery manager, and assistant
grocery manager working under him and they in turn had employees working under
them. All five stores have a store manager and assistant store manager.
Although the advertising plan for all five stores is prepared by Karambelas and
the three supervisors, each store manager is consulted about the sales plan and
the effectiveness of each advertisement.
Even though the produce, grocery, and meat supervisors make the general purchases
for all five stores there is no central warehouse for the chain. Aside from special
sale items the Salem store manager and his department heads call suppliers to fill
in with needed merchandise. Most of the merchandise sold in the Salem store is
shipped directly from the suppliers. Each store had the following approximate
storage areas: Haverhill-4,000 to 5,000 square feet; Peabody-5,000 square feet;
Salem-3,500 square feet; Georgetown-2,500 square feet; and Newburyport-1,400
square feet. The Salem store had a larger freezer than the other stores. Although
the Haverhill and Peabody stores held more storage merchandise than the Salem
store it is apparent from the size of the storage area of each store that the use of the
Peabody and Haverhill stores for warehousing functions was limited. Grocery
Supervisor Moore testified that at least 60 percent of the grocery items is shipped to
the Salem store direct from one wholesaler. In addition, two other grocery
wholesalers are used in Salem to ship directly to the Salem store. Store Manager
Ouellette testified that if he determines that more grocery merchandise is needed he
directs his grocery department head to order more. In addition he testified that he
would have his produce department head call the produce supervisor for more pro-
duce if he determined that more produce is needed. Ouellette further testified that
60 percent of the meat delicatessen items is ordered on a local basis by the butchers
working in the Salem store. Store Manager Perrotta testified that he made purchases
of daily loads of groceries and that his department heads would do the major purchas-
ing of groceries, produce, and meats except for sale items which would be purchased
by the supervisors.
Each of the five stores operated under separate seniority lists. The Salem store
manager operates on a budget and it is his responsibility to keep within the payroll
budget since he has a certain amount of money to use in his store for payroll. Al-
though pay increases are based on a time schedule the work performance of each
employee was an essential element to every pay increase and required the considera-
tion and advice of the store manager.
(d) The degree of interchange of employees between the Salem store and the
other stores is another circumstance to be considered in determining the appropriate-
ness of the single-store unit. In Sav-On Drugs, Inc., supra, a single-store unit was
found appropriate even though there existed "some degree of interchange of em-
ployees between the stores to accommodate unexpected fluctuations in business vol-
ume." In the instant case, Karambelas testified that business volume was an im-
portant consideration in making transfers. Furthermore, in the Sav-On Drugs, Inc.,
case as in the instant case employees were assigned and transferred to stores where
they are most needed. Also in the Sav-On Drugs, Inc, case transfers were made for
relief work and emergencies and 26 employees were transferred temporarily to assist
in the opening of two new stores. In the instant case it is clear that a large part of the
transfers in 1963 was made in connection with the changeover of the five stores from
a regular retail food operation to a discount food operation.
Store Manager Perrotta testified that there were more transfers in 1963 than usual
because of the changeover. Perrotta could recall only three permanent transfers
into the Salem store from January to November 1963. Only one full-time employee
was permanently transferred out of the Salem store during the same period. Perrotta
could not recall one temporary transfer into or out of the Salem store during the same
nerind Perrotta further testified that no part-time employees were transferred into
the Salem store 5 It thus appears from the testimony of Perrotta that aside from the
interchange connected with the changeover of the stores the transfers affecting the
Salem store were minimal
5In 1963 there were 65 temporary transfers between all the stores of which 14 were
temporary transfers involving 6 different employees from the Salem store to the other
4 stores. Durine 1963, there were 14 permanent transfers between the various stores
and 5 of these were transferred to the Salem store and 1 was transferred from the Salem
store
PRIMROSE SUPER MARKET OF SALEM, INC. 617
Store Manager Ouellette testified that most of the transfers in and out of the'Salem
'store involved the Peabody store . General Manager Karambelas also admitted that
most of the interchange affecting the Salem store involved the Peabody store. Thus
it is apparent that the evidence of interchange did not serve to join all five stores.
Karambelas further testified that- most of the transfers of full -time employees in
1962 and 1963 involved department heads.
The record further-establishes that over 60 percent of the part -time employees
of the Salem store lived in the city of Salem . Usually in all five stores the part-time
employees lived in the city where the store was located . Transfers of part-time
employees in connection with the changeover of the stores were made only with
the employees ' consent.
The changeovers to discount operations of the five stores on the various dates
set forth , supra, resulted in large fluctuations in the number of employees in each
store-Newburyport from 13 to 37 employees , Salem from 11 to 48 , Georgetown
from 14 to 48, Peabody from 35 to 60, and Haverhill from 15 to 40 . Karambelas
testified that transfers were required to make the changeovers . The transfers into
one store necessitated by the changeover also resulted in interchange in the other
stores. It is apparent therefore the transfers occurring a few weeks before each
changeover and a few weeks after _ each changeover were chiefly caused by the change-
overs encompassing the months of April through August 1963 . These transfers
were unusual just as were the 26 employees who were transferred to assist in the
opening of two new stores in the Sav-On Drugs , Inc., case, supra . In view of the
total number of employees in the Salem store and the other four stores it appears
that few permanent transfers affected the Salem store in 1962 and 1963. There
were no permanent transfers in 1962. _
Part-time employees who constituted the major part of the employee force usually
lived in the city where each store was located and were never permanently trans-
ferred . Most of the transfers of part-time employees involving the Salem store
were made in connection with the changeover and then only with the consent of
the employees.
Thus it appears that the interchange of employees between the Salem store and
the other four stores was minimal under ordinary times.
(e) The evidence established that neither the Union nor any other labor orga-
nization is seeking to represent employees on a basis broader than the single-store
unit . The record further shows that there is no past bargaining history for any of
the employees in a broader group or multistore basis. The fact that an election
was held in 1960 encompassing employees of four stores pursuant to a consent
agreement for an election has no bearing on- the appropriateness of a single-store
or multistore unit . The election was not held pursuant to any Board determination
of the appropriate unit and the Sav-On Drugs, Inc., case had not then been decided.
I am unaware of any Board or court case authority to support a contention that
an election held in a unit pursuant to a consent agreement of the parties has any
bearing on any future unit determinations by the Board.
On the basis of the entire record and considering the totality of all the circum-
stances, I find that all full -time • and regular part-time employees of the Respondent
at its Salem store, exclusive of casual employees , guards, and all supervisors as
defined in Section 2 ( 11) of the Act , constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
Accordingly , on the basis of the entire record , I find that by refusing to bargain
with the Union as the majority representative of the employees in the unit found
appropriate the Respondent violated Section 8(a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations set forth in section I , above , have a close , intimate, and
substantial relation to trade , traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices I shall
recommend that it cease and desist therefrom and 'take certain affirmative action
designed to effectuate the policies of the Act . I have found that on August 9, 1963,
and at all times thereafter, the Union was the authorized and exclusive representa-
tive of the Respondent's employees in an appropriate unit for the purposes of col-
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective bargaining and that on and after that date the Respondent refused to bargain
with said representative in violation of the Act. Accordingly I shall recommend
that the Respondent be ordered to bargain, upon request, with the Union as the
authorized and exclusive representative of its employees in the appropriate unit
described herein; and in the event an understanding is reached embody such under-
standing in a signed agreement.
In view of the nature of the unfair labor practices found to have been committed
the commission of similar and other unfair labor practices reasonably may be
anticipated. I shall therefore recommend that the Respondent be ordered to cease
and desist from in any manner infringing upon rights guaranteed to its employees
by Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 1435, Retail Clerks International Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time employees of Respondent at its Salem,
Massachusetts, store, exclusive of casual employees, guards, and all supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
4. At all times since August 9, 1963, and continuing to date, the Union has been
the exclusive collective -bargaining representative of all employees in said unit
for the purposes of collective bargaining with the Respondent regarding rates of
pay, wages, hours of employment, and other terms and conditions of employment.
5. By refusing on August 9, 1963, and at all times thereafter to bargain collec-
tively with the Union as the exclusive representative of its employees in the unit
found appropriate, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (5) and (1) of the Act.
6. By its interrogation, threats of reprisals, and creating the impression of surveil-
lance to its employees concerning a meeting place, meeting, and activities of the
Union or other concerted or union activities and soliciting employees to withdraw
from the Union thereby interfering with, restraining, and coercing its employees in
the exercise of their rights guaranteed by Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Primrose Super
Market of Salem, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with Local 1435, Retail Clerks Inter-
national Association, AFL-CIO, as the exclusive representative of all its employees
in the following appropriate unit:
All full-time and regular part-time employees of Respondent employed at its
Salem store, exclusive of casual employees, guards, and all supervisors as defined in
Section 2(l 1) of the Act.
(b) Interrogating its employees concerning their union membership in the above-
named Union, or any other labor organization, in the manner constituting interfer-
ence,'restraint, or coercion in violation of Section 8(a)(1) of the Act.
(c), Threatening its employees with reprisals if they engaged in union or concerted
activities, and soliciting employees to withdraw from the-Union.
(d) Creating the impression of surveillance of union activities.
(e) In any other 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 is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all the employees in the unit found to be appropriate
and embody in a signed agreement any understanding reached.
PRIMROSE SUPER MARKET OF SALEM, INC. 619
(b) Post at its place of business in Salem , Massachusetts , copies of the attached
notice marked "Appendix." 6 Copies of said notice to be furnished by the Regional
Director for Region 1, shall, after being duly signed by the Respondent's representa-
tive, be posted by it immediately upon receipt thereof, and be maintained by it for
.a period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees customarily are posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or cover by any
other material.
(c) Notify said Regional Director, in writing, within 20 days from the receipt
of this Decision, what steps the Respondent has taken to comply herewith.?
IIn the event that this Recommended Order be adopted by the Board the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall -be substituted for the words "a Decision
and Order"
71n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read, "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL, upon request, bargain collectively with Local 1435, Retail Clerks
International Association, AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described below with respect to rates of pay,
wages, and other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
The bargaining unit is:
All full-time and regular part-time employees employed at our Salem
store, exclusive of casual employees, guards, and all supervisors as defined
in Section 2(11) of the Act.
WE WILL NOT interrogate our employees concerning their union sympathies,
membership, desires, and activities on behalf of the Union, or any other labor
organization, in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a)( 1 ) of the Act.
WE WILL NOT threaten our employees with reprisal if they engage in union or
concerted activities.
WE WILL NOT solicit employees to withdraw as members of the Union or to
abandon their interest and activities on behalf of the Union.
WE WILL NOT create the impression of surveillance concerning meetings and
activities of the Union or other concerted or union activities of our employees
engaged in for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL- NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in union or other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
All of our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization.
PRIMROSE SUPER MARKET OF SALEM, INC.,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, 24 School
Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question
concerning this notice or compliance with its provisions.
Yellow Cab Company and Richard William Fields
Chauffeurs Union Local 265, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America and
Richard William Fields . Cases Nos. 20-CA-2791 and 20-CB-
1105. August 28, 1964
DECISION AND ORDER
On May 26,1964, Trial Examiner David Karasick issued his Decision
in the above-entitled proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent Union filed exceptions to the Trial
Examiner's Decision and a supporting brief, the General Counsel filed
cross-exceptions and a supporting brief, and the Respondent Union
thereafter filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondents, Yellow
Cab Company, its officers, agents, successors, and assigns, and Chauf-
feurs Union Local 265, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its officers,
agents, representatives, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.'
i The address of Regional Office 20 as stated in Appendixes A and B of the Trial Exam-
iner's Decision is amended to read : "13050 Federal Building , 450 Golden Gate Avenue,
Box 36047 , San Francisco , California , Telephone No. 556-3197."
148 NLRB No. 6S.