Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1962

137 N.L.R.B. 1741 (N.L.R.B. 1962)

SAFEWAY STORES, INCORPORATED 1741
when off duty in this area , unlike the case of internal facilities such as aisles,
corridors , escalators , stairways , and elevators , all of which are adjacent to selling
areas.
In view of the Board 's holding in the Marshall Field case and the fact that the
Respondent granted permission to the R.I.W. to distribute literature on its property
a few weeks before the Union herein started its handbill campaign among the Re-
spondent 's employees , the Trial Examiner is convinced and finds upon the record
considered as a whole that the Respondent by engaging in the conduct described
above violated Section 8(a) (1) 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 the operations of the Respondent described 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfa ir labor practices, the
Trial Examiner 's recommended order will direct it to cease and desist from the
unfair labor practices herein found, and to take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material herein , engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is, and has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
3. By promulgating and enforcing a rule prohibiting nonemployee union organizers
from soliciting employees by distributing literature to employees on behalf of a
union on the employees ' own time in an area open rto and used by the public , during
the same period of time that it was permitting employees on their nonworking time
to distribute union literature to its employees on nonpublic areas of its facilities,
thereby interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Safeway Stores , Incorporated and Local 37, Bakery and Con-
fectionery Workers International Union of America, Peti-
tioner. Case No. 21-RC-7448. July 30, 1962
DECISION ON REVIEW AND ORDER
On December 27, 1961, the Regional Director for the Twenty-first
Region issued a Decision and Order dismissing the petition in the
above-entitled proceeding. Thereafter, the Petitioner, in accordance
with Section 102.67 of the Board's Rules and Regulations, Series 8,
as amended, filed with the Board a timely request for review of such
Decision and Order on the ground that a substantial question of law
or policy was raised because of a departure from Board precedent.
137 NLRB No. 187.
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Union, Local 899, affiliated with Retail Clerks Inter-
national Association, herein called Local 899, filed timely opposition
to the request for review. The Board, by telegraphic order, dated
January 19, 1962, granted the request for review. Thereafter, Retail
Clerks Union, Local 770, affiliated with Retail Clerks International
Association, herein called Local '170, filed a brief in support of the
Regional Director's Decision.
The Board has considered the entire record in this case with respect
to the Regional Director's determination under review and makes
the following findings :
The Petitioner seeks to represent a unit of in-store bakers employed
in certain of the Employer's retail food stores in California. Both
Locals 899 and 770, the Intervenors, contend the in-store bakers should
be included in the existing multistore units composed of all employees,
excluding meat department employees, which are currently represented
by these locals. The Employer takes no position concerning the ap-
propriateness of the requested unit, but indicated it would abide by
the Board's determination.
In June 1961, the Employer established bakery shops, on an experi-
mental basis, at 3 of its approximately 200 stores in the Los Angeles,
California, area. These stores are located at Santa Paula, Ventura,
and South Gate. At the time of the hearing, the Employer indicated
there would be no immediate increase in the number of in-store bakery
shops until it could observe the results of operations at the three shops
involved. Two of the bakers are employed at the South Gate store
and one each at the other two stores. These bakery shops, which are
fully equipped, are partitioned off from the bakery selling areas of
the stores and have ovens which are installed in such a manner as to
afford customers a full view of the products being baked.
Although the in-store bakers were initially hired as bakers, they
perform only certain limited functions customarily associated with
the bakers' trade. The Employer testified that they were required
to have some prior experience as bakers because it has no apprentice-
ship program and there is no opportunity to train them, as usually
only one baker is assigned to each store. Generally they do not
measure and mix the basic ingredients or produce finished products
from raw materials. Most of the products they bake are made from
dough which has been previously prepared at the Employer's sep-
arately located wholesale bakery, where it is frozen and shaped and
delivered to the stores involved. Pies, cakes, and doughnuts are like-
wise received by the in-store bakers already baked and frozen. The
frozen bakery products are stored in the store's freezer until needed.
The in-store bakers proof or thaw the frozen dough and prebaked
products and bake or decorate them as required. Icings are prepared
by the bakers and cream puffs and eclairs, which are also received in a
SAFEWAY STORES, INCORPORATED 1743
prebaked state, are filled with fillings prepared by the in-store bakers
from instant mixes. Two of the bakers testified that in addition to
their regular work they did some "experimental" baking. However,
it appears that such experimentation occupied only a small portion of
their time and was incidental to their regular duties.'
In addition to their baking functions, and as part of their regular
duties, the in-store bakers spend about 25 percent of their time in the
selling areas of the bakery department. They have regular contacts
with customers, take orders for special bakery products, discuss special
decorations for cakes, etc., and actively engage in selling bakery prod-
ucts during the rush periods, the lunch and rest periods of the bakery
salesgirls, and at other times.2
The in-store bakers have no regular bakery helpers or apprentices.
At times they are assisted by the bakery salesgirls. Thus, the sales-
girls remove bread from the ovens, decorate cakes, fill cream puffs and
eclairs, slice bread, and wash baking pans. At one of the stores, the
girls also bake coffee cakes on the baker's day off. At such times the
girls exercise the baker's function and ascertain the oven temperature,
the time the product is to stay in the oven, and determine whether it
is properly baked and in proper shape to sell to customers. Except
for differences in starting time, the bakers have essentially the same
working hours, and other conditions of employment as the other store
employees. The Employer's bakery merchandiser, who originally
hired the bakers, visits each bake shop for inspection purposes once
or twice each week. The store manager, however, is in complete
charge of the entire store and the bakers, like all store employees,
work under his direct supervision.
In all the circumstances of this case, including the fact that the
in-store bakers do not exercise the full gamut of skills usually asso-
ciated with the bakers' trade, generally do not work from recipes, and
do not measure and mix the basic baking ingredients, we find, con-
trary to our dissenting colleague, that they are not entitled to separate
representation on a craft basis. Nor do we agree with our dissenting
colleague that the in-store bakers are entitled to separate representa-
tion as a traditional departmental group as, apart from other con-
siderations, the Petitioner does not seek to represent the bakery sales-
girls who likewise are assigned to the bakery departments of the stores
involved.' Nor are they, as suggested by our dissenting colleague, to
be included with the wholesale bakery department employees since the
' In this connection, one baker testified he experimented to produce a cream pie different
from those made in the other stores. Another testified that because of the low volume
of business at his store , he had sufficient time to experiment with baked products other
than the prebaked products sent him and that he ascertained the sale price of these
products by using basic price sheets furnished by the Employer.
2 The baker in the Santa Paula store testified he was instructed by the store manager
to make sales to customers whenever they were waiting
Cf. The Great Atlantic & Pacific Tea Company , Inc., 132 NLRB 744; Weis Markets,
Inc., 116 NLRB 1993.
1744 DECISIONS OF NATIONAL LABOR RELATIONVS BOARD
latter are stationed at a separate location, have no contact with these
in-store bakers, and are not sought to be so included. In view of all
the foregoing, we find that the four in-store bakers constitute an
integral part of the operating personnel of the respective stores,
whose employees are currently represented by the Intervenors as part
of the existing multistore units and are an accretion to such units.
Accordingly, we affirm the Regional Director's determination that the
requested unit of in-store bakers is inappropriate, and we shall there-
fore dismiss the petition.
[The Board dismissed the petition.]
[MEMBER RODGERS took no part in the consideration of the above
Decision on Review and Order.]
MEMBER FANNING, dissenting :
The Bakery Workers seeks a unit of four bakers, two of whom work
at one store and two at separate stores of the Employer. All were
hired as skilled bakers and the Employer testified that its in-store
baking operation was not "sufficiently flexible to afford anybody who
isn't a qualified journeyman" for this work. Nevertheless my col-
leagues deny separate representation to this group.
Currently the Petitioner represents a unit of bakers located at the
Employer's warehouse for the Los Angeles area. The bakers here
sought were hired specifically for new jobs at stores with newly
installed ovens and bakeshop equipment. This type of in-store baking
operation is an experiment with the Employer to stimulate customer
response. The ovens have glass doors and one of the bakers testified
that he "periodically" decorates and does "fancy work" to catch the
attention of customers.
The sales personnel in the stores involved, except for meat depart-
ment employees who are separately represented, are represented in
multistore units (including many additional stores) by the two inter-
vening locals of the Retail Clerks, which claim that these four bakers
are an accretion under the existing contracts-specifically that por-
tion concerning bakery department employees. However, as the con-
tract clause urged covers a selling department and these bakers spend
only a small fraction of their time in selling, the interpertation urged
is not persuasive, despite the fact that the bakers have some contact
with the bakery salesgirls and even assist or relieve them at certain
times, and vice versa. If these bakers are to be considered an accre-
tion, it would seem logical in the circumstances to "accrete" them to
the wholesale bakery unit.
My colleagues find that these bakers do not exercise the full gamut
of skills associated with the bakers' trade, emphasizing that they work
with frozen dough and instant mixes and rely upon the salesgirls for
SAFEWAY STORES, INCORPORATED 1745
assistance. They minimize testimony that one of the bakers uses a
number of his own recipes and bakes some breads, cakes, cookies, and
pie fillings from basic ingredients, thus increasing business when prod-
ucts made from mixes do not sell; that all icings are made from basic
ingredients; and that these bakers experiment with new products
"quite a bit." At the same time their reference to assistance from the
salesgirls at one of the stores tends to emphasize baking skill, which
in context appears limited to removing items from the oven when
asked to, and, on the baker's day off, the occasional baking of coffee
cakes already prepared by the baker. They ignore testimony by the
Employer that journeyman skills of proofing, baking, and icing are
required for these in-store baker jobs, and that the technique of proof-
ing-which the frozen doughs require-involves regulation of heat
and humidity controls and varies with the amount of yeast and sugar
in the dough, and that overproofing spoils the product. Also ignored,
though likewise unrefuted on the record, is testimony that bakeries
generally tend now to use "quite a few" prepared mixes as time and
money savers; that the in-store baking operation here involved is
comparable to what the industry terms a "hand" bakeshop which
requires the services of journeyman bakers; and that if all products
were prepared from basic ingredients at these in-store bakeries at
least one additional baker would be required at, each store. In addi-
tion it appears that these bakers have discretion to depart from set
prices in order to meet local competition. Considering all these addi-
tional factors brought out in the record along with the fact that these
bakers are hired as journeyman bakers, I believe that my colleagues
err in their conclusion that these bakers are not entitled to separate
representation on a craft basis.
My colleagues go on to find, as well, that these bakers are not
entitled to representation as a departmental unit, thus denying them
the sort of consideration customarily given by the Board to meat
department employees who because of their duties and abilities are
allowed separate representation on initial organization when they are
separately sought.4 Surely these bakers in the circumstances of this
case should not be denied similar consideration simply because there
were salesgirls for bakery goods before any baking was done in the
stores. In fact, I note that the Employer here testified that in-store
bakers, like journeyman butchers, must be qualified as such and are
not promoted from other departments of the store. Thus there seems
no reason here to refuse to grant these newly hired bakers the same
consideration given meat department employees on initial organiza-
tion. These are not bakers who are merely part of a larger kitchen
4 See Colonial Stores, Incorporated , 84 NLRB 558; TVeis Markets , Inc, 116 NLRB 1993;
Sehaegers Prospect IGA Store, 124 NLRB 1433 ; The Great Atlantic & Pacific Tea Com-
pany, Inc, 132 NLRB 744, 797 and '799.
649856-63-vol . 13T-111
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department in a retail stores In fact, they have many similarities to
a traditional departmental group of bakery employees such as the
Board has severed.' Thus I believe that my colleagues also err in
refusing to treat these bakers as a departmental unit.
Additionally, a residual unit seems appropriate here. My colleagues
apparently adopt the Regional Director's finding in his decision that
the record is "insufficient" to support a finding that these employees
constitute a residual unit. I note, however, that the Petitioner in its
request for review contends that these four bakers do constitute "all of
the unrepresented employees" and that Intervenor Local 899 in its
brief on review does not question this assertion but is content with
characterizing the unit requested as not a "true" residual unit. Inter-
venor Local 770 made no comment in this regard in its brief to the
Board. In the circumstances, including the fact that the Employer
has no definite plans for expanding the in-store baking setup to other
stores, it would also seem appropriate-viewing the problem without
blinders-to direct an election at this time in the unit of four bakers
as a residual unit of the unrepresented store employees.'
It seems clear that any or all of the above bases would amply justify
granting the petition and I would do so.
o See F W. Woolworth Company , 119 NLRB 480
6 See The Brass Rail, Inc, 110 NLRB 1656.
7 I would , of course , permit the Retail Clerks Intervenors to appear on the ballot if
they so desire.
International Union of Operating Engineers, Local 106, AFL-
CIO and Northeastern Line Constructors Chapter, National
Electrical Contractors Association [E. C. Ernst , Inc.]. Case
No. 3-CD-70. July 31, 1962
DECISION AND ORDER QUASHING NOTICE OF HEARING
This is a proceeding pursuant to Section 10(k) of the Act, follow-
ing a charge filed by Northeastern Line Constructors Chapter, Na-
tional Electrical Contractors Association, herein called the Associa-
tion, in behalf of its employer-member, E. C. Ernst, Inc., herein called
Ernst, alleging that International Union of Operating Engineers,
Local 106, AFL-CIO, herein called Operating Engineers, Local 106,
or the Respondent, had violated Section 8(b) (4) (D) of the Act.
A hearing was held before George J. McNamara, hearing officer,
on April 24 and 25, 1962, at which all parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to adduce evidence bearing upon the issues. The rulings of the hear-
ing officer made at the hearing are free from prejudicial error and are
137 NLRB No. 194.