Retail Store Employees Union, Local 954

National Labor Relations Board - Board Decisions

Mar 22, 1977

228 N.L.R.B. 962 (N.L.R.B. 1977)

962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Store Employees Union , Local 954, AFL-CIO
and Seaway Food Town, Inc. and Amalgamated
Food & Allied Workers District Union 626, AFL-
CIO. Case 8-CD-330
March 22, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
a charge filed by Seaway Food Town, Inc., the
Employer, alleging that Retail Store Employees
Union , Local 954, AFL-CIO, herein Retail Clerks,
violated Section 8(bX4XD) of the Act by engaging in
certain proscribed activities with an object of forcing
or requiring the Employer to assign certain work to
employees represented by Retail Clerks rather than to
employees represented by Amalgamated Food &
Allied Workers District Union 626 , AFL-CIO, herein
Meat Cutters.'
Pursuant to notice, a hearing was held before
Hearing Officer Katherine Ballard on November 3, 4,
and 10, 1976. All parties , including the Employer,
Retail Clerks, and Meat Cutters, appeared at the
hearing and were afforded full opportunity to be
heard , to examine and cross-examine the witnesses,
and to adduce evidence bearing on the issues.
Thereafter, briefs were filed by all parties?
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in this case , including the
briefs of the parties , the Board makes the following
findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is an Ohio corporation engaged in the retail
grocery business. The Employer operates 47 super-
markets in northwestern Ohio and southern Michi-
gan. The parties further stipulated that the Employer
At the time the instant dispute arose , the Employer had already assigned
the work in dispute to employees represented by Retail Clerks . However, as
set forth below, when Meat Cutters then sought to have the work reassigned
to employees represented by it, Retail Clerks engaged in activity prompting
the instant charge
2 The Employer also filed a motion to correct the record. Meat Cutters
filed a motion in opposition to the Employer's motion, stating that its notes
reflected the record to be correct as printed . In the absence of agreement as
228 NLRB No. 106
annually receives gross revenues in excess of $500,000
and, additionally, receives goods valued in excess of
$50,000 directly from points located outside the State
of Ohio. Accordingly, we find that the Employer is an
employer within the meaning of Section 2(2) of the
Act and that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Retail
Clerks and Meat Cutters are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE DISPUTE
A. Background and Facts
Retail Clerks represents all employees at the
Employer's Fremont, Ohio, store, except meat de-
partment employees who are represented by Meat
Cutters. In 1975, the Employer decided to expand the
operation of its Fremont store to include what it
refers to as a deli/bake-off department.3 On Decem-
ber 16, 1975, the Employer and Retail Clerks signed a
letter of agreement amending their contract to
provide for a delicatessen clerk rate. On May 24,
1976, Meat Cutters complained to the Employer that
the letter of agreement with Retail Clerks, which
had come to its attention, represented a violation of
the Employer's contract with Meat Cutters. On July
13, 1976, Retail Clerks threatened to strike the
Employer's store unless the work in dispute was
assigned to clerks represented by it. Following this,
the Employer filed the charge herein . The work has
been assigned to and is being performed by employ-
ees represented by Retail Clerks.
B. Work in Dispute
The work in dispute, as described in the notice of
hearing (as amended herein) and as elicited in the
record, consists of the preparation and sale in the
deli/bake-off department of the Employer's Fremont
supermarket of (1) baked goods such as doughnuts
and bread; (2) meats such as bolognas , ham, pimento,
and smoked sausage ; and (3) cheeses and salads. The
deli/bake-off area includes a bakery showcase and
gondola, a refrigerated case for salads , cheese items,
to errors, if any, in the record , we shall accept the record in its present
physical state . The motion to correct the record is hereby denied.
3 At the hearing, the Employer moved to amend the notice of hearing to
reflect that the work in dispute consisted of deli/bake-off work rather than
delicatessen work. The motion was opposed by Meat Cutters and was
referred by the Hearing Officer to the Board for ruling . The motion is
hereby granted as the term "deli/bake-off' describes more specifically the
disputed work.
RETAIL STORE EMPLOYEES UNION, LOCAL 954
luncheon meats , and an island display. Approximate-
ly 65 percent of the sales in the deli/bake-off
department consists of bakery goods. The remainder
is comprised of 20 percent luncheon meats, 8 percent
cheese items, and 7 percent salad items.
The work involved in preparing and selling the
above-described products includes operating equip-
ment such as a slicer, wrapping machine, and oven;
cleaning and sanitizing utensils and equipment;
rotating merchandise as new items are put on display;
mixing fillings, glazes, and other ingredients for cakes
and doughnuts; preparing salads; unloading delivery
trucks; and waiting on customers.
The work in dispute is presently being performed
by employees represented by Retail Clerks in an area
of the store located near but distinctly separated by a
5-foot aisle from the meat department whose employ-
ees are, as noted above, represented by Meat Cutters.
C. Contentions of the Parties
The Employer and Retail Clerks take the position
that the work should be awarded in accordance with
the Employer 's assignment to employees represented
by Retail Clerks . This, it is asserted , is consistent with
a previous Board decision involving the same parties
and similar circumstances ,4 and is allegedly consis-
tent with the Employer's contractual obligation to
Retail Clerks . The Employer further asserts that a
consideration of other factors , including the skills
involved, efficiency of operations , and area practice,
also dictates an award to employees represented by
Retail Clerks . Finally, the Employer contends that
any award should apply to future deli/bake-off
operations presently under construction or soon to be
constructed.
Meat Cutters contends that there exists a voluntary
method of adjustment to which both Unions are
bound ,5 and that the Board should therefore not
consider the merits of the dispute . It further contends
that should the Board consider the merits of the
dispute , the factors of skill and efficiency favor
neither party while the factors of contractual obliga-
tion and previous Employer practice favor an award
to employees represented by Meat Cutters . Finally,
Meat Cutters takes the position that any award
should be limited to the Fremont store.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated and
963
that there is no agreed-upon method for the voluntary
settlement of the dispute.
As stated, it is undisputed that Retail Clerks and
Meat Cutters demanded the disputed work and that
Retail Clerks threatened to strike in support of its
demand. Based on the foregoing, and the record as a
whole, we fmd that an object of the threat to strike by
Retail Clerks was to force or require the Employer to
assign or continue to assign the disputed work to
employees represented by it.
The record shows that the Employer is not a party
to an agreed-upon method for the voluntary adjust-
ment of jurisdictional disputes. We therefore further
find that at the time of the instant dispute there did
not exist any agreed-upon method for the voluntary
adjustment of the dispute to which all parties herein
were bound.
Based on the above, we find that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
of the Act has occurred and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to various relevant factors.
1. Board certifications and collective-
bargaining agreements
There are no outstanding Board certifications
covering the work in dispute.
The Employer's current contract with Retail Clerks
at the Fremont store recognizes it as bargaining agent
for all the employees of the Employer except the store
manager, co-manager, and meat department employ-
ees. The Employer's current contract with Meat
Cutters recognizes it as bargaining agent for all meat,
fish, delicatessen, and prepared food employees.
Prior to the earlier Seaway Food Town case referred
to above, the parties' contracts contained recogni-
tional language similar to the current contracts.
Following that decision, however, wherein the Board
clarified a Retail Clerks unit at the Employers'
Sandusky, Ohio, store to include employees in the
delicatessen department, the next Meat Cutters
contract was changed to exclude from its jurisdiction
the delicatessen department. Similarly, following that
decision, Retail Clerks and the Employer negotiated
a delicatessen clerk rate and included that language
in their next contract.
As noted above, however, the Employer discontin-
ued all delicatessen operations in its supermarkets in
4 Seaway Food Town, Inc., 171 NLRB 729 (1968).
5 It is clear, however, that the Employer is not bound to any voluntary
method of adj ustment.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1969. Following this, the later contracts were again
changed by (1) dropping the language in Meat
Cutters contract which referred to the store that had
been the subject of the earlier unit clarification
petition; and (2) dropping from Retail Clerks con-
tract the language referring to a delicatessen clerk
rate.
There exists conflicting testimony regarding the
intent of the parties in their most recent contracts
with respect to which employees would be awarded
delicatessen or deli/bake-off work if the Employer
chose , as it has, to reestablish a delicatessen or
deli/bake-off department. The Employer testified
that it agreed with Retail Clerks to again establish a
deli clerk classification should the need ever again
arise .6 Meat Cutters contends, however, that its
bargaining history with the Employer clearly guaran-
tees the work in dispute to employees represented by
Meat Cutters.
We find that the language in the current contracts,
when considered in light of the entire record, includ-
ing previous contracts, the earlier Board decision,
and testimony of the parties, does not favor an award
to employees represented by either Union.
2. Employer and area practice
Prior to 1969, the Employer had delicatessen
operations in some of its stores , several of which were
operated by employees represented by Meat Cutters
and several of which were operated by employees
represented by Retail Clerks. In May 1968, in the unit
clarification proceeding referred to above,7 the Board
decided that the delicatessen department therein
constituted an accretion to the Retail Clerks unit.
Thereafter, however, the Employer discontinued all
its delicatessen operations for economic reasons until
the instant deli/bake-off was opened in 1976.
With respect to area practice, the record discloses
that, of the 14 unionized supermarkets in the same
marketing area as the Employer having deli/bake-
offs, 100 percent assign their deli work to employees
represented by Retail Clerks. Six organized super-
markets in the Employer's marketing area have
delicatessens , but not deli/bake-offs. Of these six,
four assigned their deli clerk work to employees
represented by Retail Clerks and two assigned that
work to employees represented by Meat Cutters.
Thus, of the 20 supermarkets in the Employer's
marketing area which have deli/bake-offs or delica-
tessens, 18 (or 90 percent) assigned their deli clerk
work to employees represented by Retail Clerks.
Based on a consideration of the above, the Employ-
er's past practice, such as it is, does not favor an
award to employees represented by either Union.
Area practice, however, clearly favors an award to
employees represented by Retail Clerks.
3. Employer preference
The Employer has awarded the disputed work to
employees represented by Retail Clerks and this
factor favors an award to employees represented by
Retail Clerks.
4. Efficiency and economy of operation
The deli clerks represented by the Retail Clerks are
frequently interchanged with clerks in the Employer's
other departments who are also represented by Retail
Clerks. This allows the Employer more flexibility
than would be possible if the deli clerks were
represented by Meat Cutters, since the Meat Cutters
represents no employees outside of the meat depart-
ment . Thus, the factors of efficiency and economy of
operation favor an award of the work to employees
represented by Retail Clerks.
5. Skills
As set forth above, the disputed work consists of the
preparation and sale of baked goods, delicatessen
meats, cheeses, and salads in the Employer's
deli/bake-off department. With respect to skills
required in the deli department, it is clear that the deli
clerks use some machinery that is also used in the
meat department, such as a slicer and a hand-grinder.
It is also clear, however, that the proper performance
of the deli department duties described above does
not require the extensive training needed by the
meatcutters in the meat department.8 Also, much of
the work involves the preparation and handling of
baked goods, a task not presently performed by
employees represented by Meat Cutters. Thus, while
Meat Cutters contends, and we agree, that employees
represented by Meat Cutters are equally as skilled to
perform the work in dispute as are the employees
represented by Retail Clerks, we also find that any
greater skill is not necessary to perform the work in
dispute.
Based on the above, we find that required skills do
not favor an award to employees represented by
either Union.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude
that the Employer's deli clerks at its Fremont, Ohio,
store, represented by Retail Clerks, are entitled to
6 As noted above such a rate was again agreed upon on December 16, 7 Seaway Food Town, Inc., supra.
1975. 8 The journeyman meat cutter must undergo a 2-year apprenticeship.
RETAIL STORE EMPLOYEES UNION, LOCAL 954
perform the work in dispute. We conclude that the
factors of employer preference, area practice, and
efficiency and economy of operation favor this result.
Our present determination to award the work to the
Employer's employees who are represented by Retail
Clerks, but not to that Union or its members, is
limited to the controversy which gave rise to this
proceeding. While the Employer seeks to include
within the scope of this determination other stores in
which it asserts it plans to add this particular
operation in the future, we do not believe that the
broad order requested by the Employer is appropriate
at this time, in the absence of such operations being
in existence and afflicted with the same issues
determined here.
DETERMINATION OF DISPUTE
%5
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees of Seaway Food Town, Inc., at its
Fremont, Ohio, facility, who are currently represent-
ed by Retail Store Employees Union, Local 954,
AFL-CIO, are entitled to perform the deli/bake-off
work, including preparation and sale of baked goods,
meats, cheeses , and salads.