Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1944

59 N.L.R.B. 936 (N.L.R.B. 1944)

In the Matter Of SAFEWAY STORES, INC. and AMALGAMATED MEAT
CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL UNION
No. 229, AFL
Case No. 21-R-2497.-Decided Decennber%13, 1944
Gibson, Dunn & Crutcher, by Mr. Frederick 0. Field, of Los An-'
geles, Calif., for.
Mr. Max J. Osslo, of San Diego, Calif., for the Meat Cutters.
Gilbert & Zagri, by Mr. Sidney Zagri, of San Francisco, Calif.,
and Mr. Samuel Meyers, of San Diego, Calif., for the Retail Clerks.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION^OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Amalgamated Meat Cutters & Butcher
Workmen of North America, Local Union No. 229, AFL, herein called
the Meat Cutters, alleging that a question affecting -commerce had
arisen concerning the representation of employees of Safeway Stores,
Inc., San Diego, California, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before George H. O'Brien, Trial Examiner. The Company,
the Meat Cutters, and Retail Clerks International Protective Associa
tion, herein called the Retail Clerks, appeared, participated, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. The Retail Clerks' motion to dismiss is
hereby denied for reasons hereinafter stated. All parties were af-
forded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Safeway Stores, Inc., a Maryland corporation, is engaged in the
processing, distribution, and sales of food, food products, and allied
59 N. L. R. B., No. 180.
936
SAFEWAY STORES, INC. 937
items. The Company owns and operates approximately 3,000 retail
outlets and operates in 23 States of the United States, including the
State of California, where the Company has approximately 650 stores,
of which 45, located in San Diego County, are the only stores involved
in the present proceedings. Of the Company's annual purchases of
food products, valued in excess of $10,000,000 and sold in its San Diego
stores, approximately 30 percent are obtained from points outside the
State of California. The Company owns and operates a warehouse in
San Diego from which food and allied items are shipped to its retail
stores in Phoenix and Yuma, Arizona.
The Company admits that it is engaged in commerce within the'
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, Local Union No. 229, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees
of the Company.
Retail Clerks International Protective Associatioh, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to the hearing, the Meat Cutters and the Retail Clerks each
requested recognition from the Company as bargaining representative
for certain of the Company's employees. The Company failed to
grant the Meat Cutters' request, but recognized the Retail Clerks
subject to revocation in the event that the Board should deny the
Company the right to bargain with the Retail Clerks as representa-
tive of such employees.
The record indicates that a long standing jurisdictional dispute
exists between the Meat Cutters and the Retail Clerks concerning the
employees involved in the present proceeding. The Retail Clerks
contended at the hearing that the proceeding should be dismissed by
reason of this jurisdictional dispute, but subsequent to the hearing, it
withdrew its contention and requested that an immediate election be
directed among the employees of the Company. It is apparent that
since a settlement of the present jurisdictional dispute is not within
the capacity of either of the two unions or their common affiliate
organization, effective resolution of the existing conflict cannot be
had without resort -to the administrative processes of the Act.,-
' See Matter of W H. Kistler Stationery Company, 51 N L R B. 978: Matter of Mid
West Prtnting Co., 58 N. L. R. B 673; Matter of Southwestern Public Service Co, 58
N L R B 926
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A statement of a Field Examiner for the Board, introduced in
evidence at the hearing, indicates that the Meat Cutters and the
Retail Clerks each 'represents a substantial number of employees in
the unit claimed by each to be appropriate.z
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IT. THE APPROPRIATE UNIT
The Meat Cutters and the Retail Clerks agree that all food clerks
in the Company's retail stores in San Diego, California, including
store managers and assistant store managers, but excluding warehouse
employees, butchers, butcherettes, butcher apprentices, office employees,
temporary employees, and employees with authority to here, promote,
discharge, discipline, or otherwise effect changes in the status of
employees or effectively recommend such,action, constitute an appro-
priate unit. The only dispute concerns the category of store or loca-
tion managers whom the Company maintains should be excluded from
the unit because of their alleged supervisory status. Subsequent to
the hearing, the Retail Clerks filed a request that its objections to the
exclusion of store managers be withdrawn. The Meat Cutters, how-
ever, has apparently not changed its position taken at the hearing,
and desires to include store or location managers if permitted to do so
by the Board.
The evidence discloses that a store manager has charge of an entire
store, including the responsibility for the operation of the unit, the
profits and maintenance of the unit, and the instruction and training
of employees. Store managers have authority to select employees
hired through the divisional supervisor and in emergencies may hire
employees who apply in person at their locations without the approval
of higher supervisory authority .3 They may.transfer employees from
one job to another within the stores over which they have charge and
may, discipline such employees for minor infractions of the rules.
They may also discharge employees for definite breaches of discipline
such as dishonesty and drunkenness, and may in other circumstances
recommend dismissal or insist upon the transfer of individual em-
2 The Field Examiner reported that the Meat Cutters had submitted 94 authorization
cards dated between July 1944 and September 1944, of which 59 bore signatures which
corresponded to those on the Company ' s pay roll of September 3, 1944 , containing 220
employees within the claimed appropriate unit The Field Examiner further reported that
the Retail Clerks had submitted 188 photostatic application cards dated between July
1944 and September 1944 , with 13 undated , of which 111 bore signatures which corresponded
to those on the said pay roll containing 220 employees within the unit claimed appropriate
by the Retail Clerks
3 The Company ' s labor relations department witness testified that store managers hire
many employees directly at the present time due to the present shortage of help in the
outlying areas.
I
`SAFEWAY STORES, INC. 939
ployees to other stores of the Company. While store managers have
been included within `the coverage of certain collective bargaining
agreements between the Company and the Retail Clerks in other
sections of California, and have likewise been included in appropriate
units wherein it appeared that they had no substantial supervisory
authority,4 we are of the opinion that the store managers concerned
in the present proceeding are supervisory employees within the mean-
ing of our usual definition. Accordingly, we shall excluded them from
the unit hereinafter found appropriate. We shall, however, include
assistant store managers, since the, record does not indicate that they
have supervisory powers within our usual definition of supervisory
employees.
We find that all food clerks employed by the Company's retail
stores in San Diego County, California, including assistant store man-
agers, but excluding warehouse employees, butchers, butcherettes,
butcher apprentices, office employees, temporary employees, store or
location managers , and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees or effectively recommend such action, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-'
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Safeway Stores,
Inc., San Diego, California, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Twenty-first Region, acting in this matter
as agent for the National-Labor Relations Board, and subject to Article
' See Jfat't'ci of The Great -Thantic and Pacific Tea Company , 53 N L. R . B. 360.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III, Sections 10 and 11, of said Rules and Regulations, among the
employees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls, but excluding any who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether they desire to be
represented by Amalgamated Meat Cutters & Butcher Workmen of
North America, Local Union No. 229, A. F. L., or by Retail Clerks
International Protective Association, A. F. L., for the purposes of
collective bargaining, or by neither.