Ray's Sentry

National Labor Relations Board - Board Decisions

Nov 22, 1995

319 N.L.R.B. 724 (N.L.R.B. 1995)

724
319 NLRB No. 100
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On July 7, 1994, the Regional Director issued an erratum to re-
flect the correct date on which the election eligibility list must be
received in the Regional Office and the correct date on which a re-
quest for review must be filed with the Board.
2 The Petitioner did not seek the pizza employees. The Regional
Director, however, included them in the unit because they are clearly
within the bakery/deli department, and share common supervision
and a community of interest with the bakery/deli employees. No
party requested review of the Regional Director’s finding in this re-
spect.
3 The parties stipulated that office clerical employees should be ex-
cluded from any unit found appropriate.
4 On June 21, 1995, the Petitioner filed a motion to allow filing
of supplemental statement of authorities. The Petitioner’s motion is
granted, and we have considered the cases cited therein.
5 The Petitioner has not indicated that it would be willing to pro-
ceed to an election in any unit broader than the bakery/deli depart-
ment. We, therefore, have not sought to determine what would con-
stitute an appropriate unit here.
C & K Market, Inc. d/b/a Ray’s Sentry and United
Food & Commercial Workers Local 555, AFL–
CIO, CLC, Petitioner. Case 36–RC–5587
November 22, 1995
DECISION ON REVIEW AND ORDER
BY CHAIRMAN GOULD AND MEMBERS
BROWNING, COHEN, AND TRUESDALE
On July 6, 1994, the Regional Director for Region
36 of the National Labor Relations Board issued a De-
cision and Direction of Election in the above-captioned
proceeding1 in which he found that the Employer’s
bakery and delicatessen department employees includ-
ing pizza employees (bakery/deli) working in the Em-
ployer’s Central Point, Oregon, store constituted an ap-
propriate unit.2 The Regional Director, citing several
cases in which the Board found separate units of meat
department employees to be appropriate, found that the
Employer’s bakery/deli employees had a community of
interest distinct from that of the Employer’s other em-
ployees, warranting a separate appropriate unit. On
July 20, 1994, the Employer filed a timely request for
review, contending that the only appropriate unit is
storewide (including grocery, meat, general merchan-
dise, produce, video, and pharmacy employees).3 On
July 29, 1994, the Petitioner filed a brief in response
to the Employer’s request for review. On August 8,
1994, the Board granted review. Thereafter, the Em-
ployer filed a brief on review. The election was con-
ducted on August 5, 1994, as scheduled and the ballots
were impounded.
We have carefully considered the record, including
the briefs of the parties.4 We find that the bakery/deli
employees do not constitute a separate appropriate
unit. We therefore reverse the Regional Director and
dismiss the petition.5
I. FACTS
The Employer operates a number of grocery stores
in Oregon and California, including one in Central
Point, Oregon. The Central Point store is divided into
several departments: grocery, meat, general merchan-
dise, produce, video, and bakery/deli. There is a phar-
macy located in the store. The store is under the over-
all direction of a store manager. The store manager, as-
sistant store manager, bakery/deli manager, bakery/deli
assistant manager, and meat manager are stipulated
statutory supervisors. There are approximately 60–75
employees in the store.
Bakery/deli employees are directly supervised by the
bakery/deli manager and assistant manager. There are
17 employees in the bakery/deli department, including
the employees in the pizza kiosk. The bakery/deli em-
ployees wait on customers from behind a counter.
They sell breads, rolls, cakes, pies, donuts, corn dogs,
cooked chicken, hot potatoes, cold meat, cheeses, sal-
ads, ready-to-bake pizzas, ice cream, sodas, and pop-
corn. Breads, deli items, and cheeses are also sold
from open display shelves located elsewhere in the
store.
Bakery/deli employees include cake decorators,
clerks, and fryer/bakers. Cake decorators mix ingredi-
ents for cakes and bake cakes, mix frosting, frost and
decorate cakes, and assist with customer service as
needed. The clerks select and wrap items at the request
of customers and operate the cash register. They fry
chicken, potatoes, and burritos, bake chicken in an
oven on a rotisserie, make sandwiches, salads, and
popcorn, slice meats and cheese, slice bread and wrap
bakery products. Fryer/bakers prepare mixes for cakes
and donuts, make donuts, including icing, glazing, or
decorating them, bake cakes, cookies, puff pastries,
sweet dough, and Danish pastries, and cut and bag
those products. The employees do not bake from
scratch. They work from bake-off (frozen materials)
and dry mixes. The only specific training received by
the bakery/deli employees was a period of 4 days in
1991 when the deli section was added to the remod-
eled bakery.
The store has a kiosk located near the video depart-
ment, from which employees prepare and sell hot pizza
slices. A pizza franchiser provides training and pizza
ingredients to the Employer’s pizza employees. Pizza
employees perform most of their work in the kiosk,
but occasionally enter the bakery/deli area to obtain
price labels, sort out cheeses, and use the sinks or the
convection oven. Pizza employees wait on customers
at the kiosk but do not handle money. Customers who
purchase pizza may pay for it at the bakery/deli reg-
ister. Pizza employees also prepare the ready-to-bake
pizzas sold in the bakery/deli.
The Employer’s grocery department employs check-
ers, bottle clerks, dairy/frozen food clerks, general
725RAY’S SENTRY
6 See Scolari’s Warehouse Markets, 319 NLRB 153 (1995), for
discussion of the Board’s treatment of meat department employees
in determining appropriateness of separate units.
clerks, file clerks, and courtesy clerks. Checkers ring
up customers’ groceries. Bottle clerks count returned
bottles and cans and sort them, as well as sort and
stack cases of products. Dairy/frozen food clerks order
and fill the dairy case. They occasionally check grocer-
ies and may assist customers to vehicles. General
clerks ‘‘face’’ shelves, receive freight, unload boxes,
stock shelves, clean, occasionally check groceries and
assist customers. Courtesy clerks bag groceries, assist
customers, stock, face shelves, and clean. The grocery
department is under the immediate supervision of the
store manager.
Produce clerks work under the produce manager.
They unload produce, and clean and stock cases. The
meat department employees are supervised by the meat
department manager. The meatcutters cut and trim
meat, poultry, and fish, using handtools and power
equipment. The meat wrappers and counter/cleanup
employees wrap and weigh meat, poultry, and seafood
products, and operate the meat slicer and cubing ma-
chine. The one general merchandise employee works
directly under the store manager and takes care of in-
ventory and nonfood display items. The video cus-
tomer service clerks work in the video department
under the direct supervision of the store manager. They
issue videotapes to customers, accept payment, make
change, and stock the video shelves.
Although the bakery/deli, produce, and meat depart-
ments have their own supervisors, the store manager is
responsible for the day-to-day operations of the entire
store. The bakery/deli manager interviews and rec-
ommends the hire of department employees, but the
final approval for this hiring rests with the store man-
ager. The bakery/deli manager may issue verbal and
written warnings, with the store manager reviewing the
written reprimand. Only the store manager can termi-
nate an employee, but there is no evidence that any
bakery/deli employee (apart from a supervisor) has
been terminated. The bakery/deli manager assigns and
evaluates the department’s employees. She sets work
schedules for the department, except for the pizza em-
ployees whose schedules are drawn up by the pizza
manager. The bakery/deli manager trains the
bakery/deli employees; the store manager handles em-
ployee orientation.
All employees receive the same health and pension
benefits. Wages paid to the bakery/deli employees fall
within the lower range of the Employer’s wage scales
and are comparable to those of the counter employees.
The vast majority of employees storewide are part-
time. There are few instances of employee interchange
or transfer. The store is open 24 hours a day. The
bakery/deli department is staffed from 4 a.m. to 8 p.m.
The pizza kiosk is open until 9 p.m. Other departments
have varying hours. The produce department is staffed
from 3 a.m. until 7 p.m., although the hours are ad-
justed seasonally. After the bakery/deli department
closes for the day, a grocery clerk may go behind the
counter to obtain a bakery item or cold food for a cus-
tomer.
II. ANALYSIS
Unlike cases involving skilled meat department em-
ployees,6 the Board does not apply a presumption that
a separate unit is appropriate for bakery or delicatessen
employees even when they exercise a full range of tra-
ditional craft skills. In determining whether a unit of
bakery/deli employees is appropriate, the Board uses a
traditional community-of-interest test. The Board gen-
erally places bakery/deli employees in storewide units
with grocery employees. Ideal Super Markets, 171
NLRB 1 (1968) (separate deli unit was inappropriate
where employees exercised similar skills as other em-
ployees, possessed no special qualifications, required
little training, worked similar hours, received the same
benefits, and worked under the same overall super-
vision of the store manager); Payless, 157 NLRB 1143
(1966) (grocery store unit, excluding meat department
employees, found appropriate, and separate unit of deli
employees found inappropriate where the deli employ-
ees performed similar work under similar working con-
ditions as the grocery employees, were commonly su-
pervised, and were functionally integrated with the
grocery department); Valu King, 206 NLRB 1 (1973)
(deli/bakery employees included in a unit with grocery
employees based on their duties, functions, and inter-
ests; the bakery/deli employees’ jobs consisted of
cooking, baking, pricing, stocking, and waiting on cus-
tomers; bakery/deli and grocery employees had com-
mon supervision); Overton Markets, 142 NLRB 615
(1963) (bakery employees included in grocery unit).
Only rarely has the Board excluded bakery/deli em-
ployees from overall grocery units. In those instances,
the employees were skilled, required substantial train-
ing, and/or shared other interests apart from those of
the grocery employees. For example, in Weber’s
I.G.A., 244 NLRB 594 (1979), the Board found, based
on higher level skills, substantial training, common su-
pervision, and considerable interchange, that the em-
ployer’s bakery/deli employees were more closely
identified with the employer’s meat department em-
ployees than with its grocery employees, and therefore
extended the traditional meat department exclusion
from the grocery unit to the bakery and deli employ-
ees. In Safeway Stores, 178 NLRB 412 (1969), the
Board similarly permitted a craft severance election for
bakers from a grocery unit (the meat department was
separately represented) where the bakers baked from
primary ingredients and sometimes created their own
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Contrary to our dissenting colleague, the fact that the bakery/deli
employees perform distinct job functions does not support a separate
unit. These job functions do not, as our colleague concedes, require
a high level of skill. Nor, as the facts here indicate, do the
bakery/deli employees require any extensive training to perform their
work. Lacking specialized skills and significant training, the
bakery/deli employees are not sufficiently distinct from the other
grocery employees who, like the bakery/deli employees, may per-
form a variety of distinct, functions but who also lack special skills
and training.
8 Although the meat department cases cited by the Regional Direc-
tor (Mock Road Super Duper, Inc., 156 NLRB 983 (1966); Stevens
Produce Co., 214 NLRB 131, 139 (1974); Owego Street Super-
markets, NLRB 159 1735, 1741 (1966)), use community-of-interest
standard language, these cases were decided early in the develop-
ment of meat department unit case law. Because the Board in those
cases acknowledged the general differences in skills, functions, and
duties of meat department employees from other retail store employ-
ees and the Board’s traditional separation of meat department em-
ployees, we view these cases as implicitly incorporating a presump-
tion standard. See R-N Market, 190 NLRB 292 (1971).
1 No request for review was filed with respect to the Regional Di-
rector’s finding that the pizza employees should be included in the
unit.
2 The bakery employees work with frozen materials and dry mixes
and do not prepare the baked goods from scratch.
recipes, were experienced bakers with journeyman sta-
tus or participants in the employer’s 2-year apprentice-
ship program, were separately supervised, and had
only rare contact with customers. Bakery clerks, who
performed sales functions, remained in the grocery
unit. The Board in that case distinguished the crafts-
men bakers from the employer’s previous bakers who
had worked from frozen products, regularly performed
sales functions, and were supervised by the store man-
ager.
Here, there is no indication that the bakery/deli em-
ployees require specialized skills or extensive training
to perform their work. The Employer’s bakery/deli em-
ployees, in preparing bakery products from frozen
dough and mixes, and in preparing and serving hot and
cold foods, exercise skills and perform duties similar
to those of bakery and deli employees the Board pre-
viously has included in grocery units. Indeed, the
lower wages of the Employer’s bakery/deli employees,
when compared to those of all but the counter employ-
ees, supports a finding that the Employer does not
view the bakery/deli employees as being specially
skilled. Although there is little interchange between the
bakery/deli employees and other store employees, gro-
cery clerks will go behind the bakery/deli counter to
retrieve bakery or deli products for customers after the
bakery/deli closes for the day. All store employees
have similar benefits and most work part time.
Although the bakery/deli has its own supervisors,
there are, as described above, some overlapping ele-
ments of supervision by the store manager, who di-
rectly supervises the grocery and video departments.
The bakery/deli employees have different hours from
those of other departments, but various other depart-
ments also have different hours; in fact, the hours of
staffing in produce are similar to those in bakery/deli.
Considering all of these circumstances, we find that
the supervision, to the extent it is separate from other
departments, and the limited interchange and transfer
do not render the bakery/deli department sufficiently
distinct to warrant a separate unit.7
With regard to the Regional Director’s reliance on
cases involving separate meat department units to sup-
port his finding of a separate bakery/deli unit, we note
first, as set forth above, that, unlike the meat depart-
ment cases, the Board has not applied a presumption
that bakery/deli departments constitute a separate ap-
propriate unit even when these employees are skilled
craftspeople.8 Second, the Board’s recently issued de-
cision in Scolari’s Warehouse Markets, supra, is distin-
guishable. Although the Board did not apply the pre-
sumption in that case, the meat department employees
had a sufficiently distinct community of interest from
other employees at the supermarkets involved that a
separate meat department unit was warranted. How-
ever, there, in addition to other factors demonstrating
their distinct community of interest, the meatcutters in
Scolari’s continued to exercise many of the traditional
craft skills and had extensive meatcutter training or
were apprentice meatcutters. As indicated above, it has
not been demonstrated that the bakery/deli employees
here possess or exercise such skills or require such
training.
Accordingly, we find that the bakery/deli unit is in-
appropriate.
ORDER
The Regional Director’s Decision and Direction of
Election is reversed and the petition is dismissed.
MEMBER BROWNING, dissenting.
Contrary to the majority, I would affirm the Re-
gional Director’s decision that the petitioned-for unit
of bakery and deli employees, with the addition of the
pizza employees,1 constitutes a separate appropriate
unit. None of the employees in the store are organized,
there is no history of bargaining in a broader unit, and
no labor organization seeks to represent the bakery,
deli, and pizza employees on a broader basis. Although
the bakery and deli employees do not exercise a high
level of skills,2 they do perform tasks requiring skills
distinct from those done by other store employees.
Bakery and deli employees mix, bake, and ice cakes,
fry and glaze donuts, and prepare other baked prod-
ucts. These employees also fry chicken, potatoes, and
burritos, bake rotisserie chicken, make sandwiches, sal-
ads, and popcorn, and slice meats, cheeses, and bread.
The bakery and deli employees work in a separate
triangular area at the front of the store and wait on
727RAY’S SENTRY
customers from behind a counter. They are hired sepa-
rately, provided with different training, and separately
supervised by their own manager and assistant man-
ager who recommend hiring and disciplinary measures.
They do not regularly interchange with other employ-
ees and other employees do not regularly work within
the bakery and deli area. Although all employees at the
store share common benefits, bakery and deli employ-
ees have separate wage scales and work different hours
from other employees. Bakery and deli employees are
readily identifiable as a distinct group or department
within the store.
In my view, the foregoing factors compel the con-
clusion that the bakery and deli employees, together
with the pizza employees, share a sufficiently distinct
community of interest from other employees to warrant
finding that they constitute a separate appropriate de-
partmental unit.