Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1969

174 N.L.R.B. 1274 (N.L.R.B. 1969)

1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safeway Stores , Incorporated and Freight Checkers,
Clerical Employees & Helpers Local No. 856,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Petitioner . Case 20-RC-8 172
March 19, 1969
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on June 14, 1968, before Hearing
Officer Patricia K Immel of the National Labor
Relations Board. Petitioner and Intervenor' have
each filed briefs.
The Board has reviewed the Hearing Officer's
rulings, and finds that they are free from prejudicial
error They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Sections
9(c)(1) and 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all office
employees in the electronic data processing section,
hereinafter called the EDP section, at the
Employer's San Francisco Division office at 1950
Army Street
The Intervenor contends that the Petitioner's
requested unit is inappropriate, and that in any
event the petition, filed May 28, 1968, is barred by
the Intervenor's contract which allegedly includes
the requested employees and runs from January 1,
1968, through December 31, 1970.
The Employer takes no position, althrough it had
previously agreed with the Intervenor to include the
EDP section employees in the Intervenor's unit.
The record discloses that since 1959 the
Intervenor has been the certified representative of
the office and clerical employees at all the
Employer's San Francisco Division offices, and has
negotiated a series of contracts covering these
employees. In 1962 the Employer decided to
centralize some of its accounting functions, and to
this end moved part of its San Francisco Division
(including the retail accounting and tabulating
sections), and also two other Divisions, to its
location at Oakland, California. Only three
employees transferred from San Francisco to
'Retail Clerks Union, Local 648, Retail Clerks International
Association , AFL-CIO, was permitted to intervene on the basis of a
current contract between it and the Employer covering the office and
clerical employees at the Employer's San Francisco Division offices
Oakland. The Intervenor endeavored to apply its
San Francisco Division contract to the newly
established Oakland location, but the Employer
objected. Pursuant to the arbitration provision of
the contract, the arbitrator found that the work of
the three divisions transferred to Oakland was
commingled, that the work and jobs transferred
from the San Francisco Division were not
identifiable, and that the Intervenor's contract did
not apply. Moreover, the Employer then acquired
more complex data processing equipment and
reorganized the tabulating section into a data
processing operation.
In 1965, the Petitioner secured certification and
negotiated a contract with the Employer covering
the data processing and retail accounting employees,
then at the Oakland location. The Petitioner's
contract with the Employer was to expire July 1,
1968.
In the summer of 1967 the Employer decided to
decentralize its Oakland data processing (EDP) and
retail accounting operations. In August and
December 1967, and in February 1968, it transferred
about 40 Oakland retail accounting employees to
the San Francisco Division at Army Street, and an
undisclosed number to other locations. As these
Oakland employees were brought to San Francisco
they were included in the coverage of the then
current contract between the Employer and the
Intervenor, without obejction by the Petitioner so
far as the record shows.
As part of the same decentralization process, the
Employer planned to move the employees of the
Oakland EDP operation to the San Francisco
Division. The Employer and the Intervenor
accordingly agreed orally on May 9 to include the
future EDP employees in their current San
Francisco contract, which had been expressly limited
to the office and clerical employees described in an
attached appendix and included no EDP
classifications. Moreover, the parties could not agree
on a pay scale for the EDP employees, and agreed
instead to submit the matter to arbitration. Shortly
thereafter, and before any arbitration took place,
the Employer started the planned move. The
Petitioner then filed the present petition, requesting
the EDP employees as a separate appropriate unit.
The balance of these Oakland EDP employees were
to be moved shortly after the hearing.
The positions in the EDP section at San
Francisco consist of keypunch machine operators
and data processing clerks in the junior, regular,
senior, and lead grades, and computer machine
operators in the junior, regular, and lead grades.
The basic function of the keypunch operator is to
operate the IBM keypunch or key verifier to record
alphabetic and/or numerical data. The basic
function of the data processing clerk is to audit and
control data processing input and output and
operate the basic IBM punched card equipment as
required. The basic function of the computer
174 NLRB No. 189
SAFEWAY STORES , INC. 1275
operator is to process data on the electronic data
processing system. The basic educational
requirements for these positions are a high school
education, keypunch school for the keypunch
operator, and aptitude tests for the other positions.
The personnel complement also provides for two
programmers, one of whom is working already;
their basic responsibility is to prepare programs for
electronic computers and related data processing
equipment. The basic requirements for these
positions are a college degree or equivalent
experience and 1 to 3 years' experience in
programming or related work.
The EDP section is one of six sections which
make up the San Francisco Retail Accounting
Division. The other five sections are the general
ledgers, warehouse payable, store accounts
receivable, payroll, and office services, the latter of
which includes the mailroom, the multilith
operation, the PBX operation, maintenance, and
janitorial. In all, there will be about 135 employees
in the Division, including about 35 employees and
supervisors in the EDP section. These employees are
all located on the second floor of the Army Street
building All the data processing equipment and
most of the EDP section employees are located
within a walled-off-area. There are desks in front of
that area, which are occupied by the section
supervisors and programmers, and sometimes by
EDP employees when the latter have to work at a
desk. These desks are separated from the desks of
the employees of the -other accounting sections,
however, by file cabinets
The EDP section processes the accounting work
of the other accounting sections and returns the
processed work back to them. Thus, the work of the
EDP section is functionally integrated with the work
of the other accounting sections. Each of these
sections has separate line supervision. The
highest-level EDP section supervisor, data
processing section manager Griffin, and the other
accounting sections supervisors report to the
accounting comptroller. The EDP employees are
also supervised by three subordinate supervisors: the
operations supervisor, Vigil, the keypunch
supervisor, Gloria Jones, and the third shift
supervisor, Stangelan. The computer operators and
the data processing clerks work three shifts, whereas
the keypunch operators work two shifts. The
accounting clerks and other office employees in the
other five sections work only one shift. The EDP
section employees do not interchange with or
transfer out to any of the other sections because
their skills are different and, grade for grade, their
pay scale is higher. In a few cases, when the
employees of the other sections transfer to the EDP
section, they must attend keypunch school and start
at the bottom grade at keypunch operator positions
and work progressively upward through the data
processing clerk positions to the computer operator
positions at the top of the pay scale.
On these facts we find that the EDP employees
are a homogeneous and identifiable group. They
have functionally distinct work characteristics in
that they work exclusively on complex data
processing and related equipment, using skills which
require special training and aptitudes. They work
together in a separate work area, command a higher
pay scale, and because of their distinguishing
characteristics do not interchange with the other
employees.
On the basis of these findings, and particularly
because the EDP employees had been represented by
the Petitioner for a substantial period of time prior
to their transfer by the Employer from Oakland to
San Francisco, we cannot agree with our dissenting
colleagues that the agreement of the Employer and
the Intervenor, made before any of these employees
had been transferred to San Francisco, should
automatically transfer them to the Intervenor's San
Francisco unit, or that they should be deprived of an
opportunity to vote whether they now desire to be
represented by the Intervenor. Rather, we are of the
opinion, and find, that the EDP employees may
constitute a separate appropriate unit, as the
Petitioner has requested,2 or, because of their
functional integration, they may appropriately be
part of the Intervenor's unit of San Francisco office
and clerical employees.'
In these circumstances, we consider the desires of
the employees a relevant factor to our unit
determination, and shall not make a final
determination at this time. Rather, we shall conduct
a self-determination election among the employees
in the EDP section, with the Petitioner and the
Intervenor both on the ballot, to ascertain whether
they wish to be represented in a combined unit by
the Intervenor, in a separate unit by the Petitioner,
or by neither of the participating labor
organizations If a majority of the employees vote
for the Petitioner, they will be deemed to have
indicated their desire to be represented in a separate
unit, which we then find appropriate If a majority
of the employees vote for the Intervenor, they will
be deemed to have indicated their desire to be
represented in the existing unit, which we then find
appropriately includes them. The Regional Director
is instructed to issue an appropriate certification as
decided by the results of the election.4
There is a question as to the supervisory status of
the three subordinate supervisors and the unit
placement of the two programmers. The operations
supervisor, Vigil, works directly under the EDP
Section Manager Griffin and directs the four
'See The Zia Company, 108 NLRB 1134 at 1137, fn. 8, Western
Electric Co Inc, 98 NLRB 1018, 1039-40; Illinois Cities Water Company,
87 NLRB 109, 111-112; and cf. The Goodyear Tire & Rubber Company,
168 NLRB No 25. For the reasons indicated above, we reject the
Intervenor 's contract-bar defenses See Appalachian Shale Products Co ,
121 NLRB 1160; General Extrusion Co. 121 NLRB 1165
'The Grocer's Supply Company, Inc, 160 NLRB 485
'See Bonwit Teller, Inc, 159 NLRB 759
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computer operators and the seven data processing
clerks on the first and second shifts, and the 12
keypunch operators on the first and second shifts
who are under the immediate direction of the
keypunch supervisor, discussed below. He also
directs the two computer operators and four data
processing clerks on the third shift who are under
the immediate direction of the third shift supervisor,
also discussed below. He has charge of the operation
of the data processing equipment and the flow of
work in the section. Although only Division
Controller Flynn can authorize overtime, he does so
on the recommendations of the EDP Section
Manager and the operations supervisor and the
keypunch and third shift supervisors. The operations
supervisor has the authority to recommend the hire
and discharge of employees; he may discipline them
for minor infractions of company rules; and he
evaluates the performance of those employees
directly under him and recommends their
promotion. He is salaried.
The Petitioner would exclude him from the unit,
the Intervenor and the Employer take no position.
In view of the operations supervisor's authority to
use independent judgment in the responsible
direction of the employees directly under him and in
effectively recommending their hire, discharge,
discipline, and promotion, we find that the
operations supervisor is a supervisor, as defined in
the Act.
The keypunch supervisor, Gloria Jones, is in
direct charge of about 12 keypunch operators on the
first and second shifts, and reports to the operations
supervisor. She determines the order and controls
the flow of work of the keypunch operators, assigns
specific tasks to them individually, evaluates their
performance, disciplines them for minor infractions
of company policy, recommends their hire and
discharge, and recommends overtime when, in her
discretion, it is necessary. She is salaried. The
Petitioner would exclude her from the unit as a
supervisor, the Intervenor would include her, the
Employer takes no position. In view of the
keypunch supervisor's authority to responsibly direct
and control the flow of the keypunch work, to
assign work to individual keypunch operators, to
evaluate their performance, to discipline them for
minor infractions of company rules, to effectively
recommend their hire, discharge, promotion, and
overtime, we find that the keypunch supervisor is a
supervisor, as defined in the Act.
The third shift supervisor, John Stangelan, has
charge of the operations of the third shift, reports to
the operations supervisor, and directs the computer
operators and data processing clerks who work on
this shift. He is salaried. The parties took no
position as to his supervisory status. In view of his
authority to use independent judgment and
responsibly direct and control the flow of work
scheduled for the third shift, assign work to
individual employees, evaluate their performance,
discipline them for infraction of company policy,
and effectively recommend their promotion or
discharge, we find that the third shift supervisor is a
supervisor, as defined in the Act.
The programmers, as noted above, prepare
programs for electronic computers (IBM 360-30 and
360-20) and related data processing equipment. In
so doing, the programmers develop and write up
machine methods for solving problems, doing
clerical work, and providing required accounting and
operating information. They control programs from
problem statements to production run. They report
directly to the data processing manager. But because
of technical know-how, they are left entirely on their
own. Nobody else can program the equipment,
except the programmers The position description
requires a college degree or equivalent experience
and 1 to 3 years' experience in programming or
related work. The programmers, unlike the other
employees, are salaried The Petitioner and the
Intervenor would include them in the unit. The
Employer takes no position except to state that they
may be professional employees. We find that a
prolonged course of specialized intellectual
instruction and study is not required of these
programmers, so as to qualify them as professional
employees under the Act, and that I year experience
in programming or related work is sufficient to
qualify them for these positions. Although the IBM
360-30 and 360-20 electronic computers are more
sophisticated office machines than their
predecessors, the 650 models, in that they are more
versatile and have their own memory core, we
believe that the interests of the Employer's
programmers are not significantly different from the
interests of the predecessor IBM-650 electronic
computer programmers. The Board has heretofore
found that such employees are not professional or
technical employees and should be included in units
with other office and clerical employees.'
Accordingly, we shall include the programmers in
the voting group of EDP section employees
We shall therefore direct an election in the
following voting group of employees at the
Employer's location at 1950 Army Street, San
Francisco, California:
All office employees in the electronic data
processing section, including programmers, but
excluding all other employees, guards and
supervisors, as defined in the Act.
[Direction of Election6 omitted from publication.]
'See The Dayton Power and Light Company, 137 NLRB 337, 338, 339,
and Loew's Inc , 127 NLRB 976, 978, 979
'An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 20 within 7 days after the date of this Decision and Direction
of Election The Regional Director shall make the list available to all
parties to the election No extension of time to file this list shall be granted
by the Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed Excelsior Underwear Inc, 156 NLRB
1236
SAFEWAY STORES , INC. 1277
MEMBERS BROWN AND JENKINS dissenting:
We dissent from the majority's conclusion that
the EDP employees may constitute an appropriate
bargaining unit by themselves. This group consists
mostly of keypunch machine operators, data
processing clerks, and computer machine operators.
Neither their education and training, nor skills and
duties, nor anything else disclosed by this record
endows these employees with a separate community
of interest sufficient to establish them as a separate
bargaining unit, apart from fellow office clericals'
The EDP employees did not enjoy separate
representation while at Oakland, they were
represented there as part of a larger clerical unit
before transfer to San Francisco with the accounting
clerks. There is therefore no bargaining history that
can support a unit confined to EDP employees alone
in the San Francisco Division.
Consequently, on this record and in the light of
existing Board precedent,' we would dismiss this
petition.
'Such factors relied upon by the majority as the equipment used by the
EDP employees and their separate work area and higher salaries do not,
on balance , as they did not in The Goodyear Tire & Rubber Company
case , 168 NLRB No 25, vest the employees in question with the requisite
separate community of interest
'See The Goodyear Tire & Rubber Company, supra, Grocers Supply
Company, Inc, 160 NLRB 485, The Dayton Power and Light Company,
137 NLRB 337, Loew's Inc , 127 NLRB 976