Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1981

256 N.L.R.B. 918 (N.L.R.B. 1981)

918 IDECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safeway Stores, Inc. and United Food and Commer-
cial Workers Union, Local 537, AFL-CIO &
CLC. Case 7-CA-6393
June 24, 1981
DECISION AND ORDER
On October 1, 1980, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Re-
spondent filed cross-exceptions and a brief in re-
sponse to the General Counsel's exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
On June 15, 1979, Respondent entered into a pre-
hire contract with Bakery, Confectionary & Tobac-
co International Union Local No. 401, AFL-CIO,
herein called Bakery Workers Local 401, recogniz-
ing Bakery Workers Local 401 as the collective-
bargaining representative of the employees in a
newly planned delicatessen department in Respond-
ent's Bountiful, Utah, store. The delicatessen de-
partment opened on June 28 and was staffed by
five employees, none of whom had previously
worked for Respondent. Under the terms of the
June 15 prehire contract these employees would be
represented by Bakery Workers Local 401 and
their wages, hours, and conditions of employment
would be established by the bakery sales agreement
existing between Bakery Workers Local 401 and
Respondent.
On the basis of the foregoing facts, it is clear
that Respondent's prehire agreement with Bakery
Workers Local 401 would, in usual circumstances,
constitute unlawful premature recognition of that
Union even in a situation where the action was
taken in good faith and in the absence of a question
concerning representation.' The exception, of
course, is in a situation where the new department
or facility is a proper accretion to an existing bar-
gaining unit. The Board's fundamental concern,
however, is to insure that in cases where such an
issue is raised the right of interested employees to
determine their own bargaining representative will
not be thwarted. For this reason the Board has
treated accretion as a narrow exception to the gen-
eral rule against prehire or premature recognition.2
i General Cinenoa Corp., 214 NLRB 1074, 1075 (1974)
2 The Kroger Co., Houston Division, 211 NLRB 363, 377 (1974): The
Wackenhut Corporation, 226 NLRB 1085, 1089 (1976)
256 NLRB No. 146
Pursuant to this policy the Board has found a valid
accretion only when the additional employees have
little or no separate group identity and thus cannot
be considered to be a separate appropriate unit3
and when the additional employees share an over-
whelming community of interest with the preexist-
ing unit to which they are accreted. 4
Under these principles, we find, contrary to the
Administrative Law Judge, that the newly estab-
lished delicatessen department is not an accretion
to the existing Bakery Workers unit.
'The Administrative Law Judge found that accre-
tion was warranted on the basis of the geographic
proximity of the delicatessen to the bakery depart-
ment; the interchange of employees; the functional
integration of the departments; and the similarity of
skills and responsibilities of the two groups of em-
ployees, in particular that employees in both the
delicatessen and bakery departments are primarily
engaged in waiting on the public and that no previ-
ous experience is required for work in either de-
partment. Initially, we note that many of the duties
of the delicatessen employees, such as the slicing of
meats and the handling of cheese and salads, are
more similar to the duties of employees in the meat
department than to the duties of the bakery depart-
ment employees. Indeed, as the Administrative
Law Judge observed, for approximately a 5-year
period ending in early 1979 the meat department
employees prepared barbecued chicken and ribs for
display and sale in that department. This work has
now been transferred by Respondent to employees
in the delicatessen department.
We also note that the ability to meet and deal
amicably with the public is a listed job description
requirement for the positions of meatcutter, meatw-
rapper, produce clerk, and food clerk, and is not a
skill required solely by employees in the delicates-
sen and bakery departments.
In addition, our analysis of the interchange of
employees does not convince us that this factor
supports accretion of the delicatessen employees
into the bakery department unit. There was no
scheduled interchange of employees between the
delicatessen and bakery departments during the
first 5 months of the delicatessen department's op-
eration or prior to the filing of the complaint in
this case. While there was some unscheduled inter-
change of employees between the bakery and deli-
catessen departments, employees from the grocery
department also worked in the delicatessen depart-
ment on an unscheduled basis. The interchange of
:i Melbet Jewelry Co.. Inc., 180 NLRB 107 (1969)
4 .:L..RB. v. Food Employer~ Council. Inc., 399 F.2d 501 (9th Cir.
1968), enfg. 163 NLRB 426 (1967)
SAFEWAY STORES, INC. 919
employees, therefore, does not support accretion
into the bakery unit.
Moreover, we feel compelled here to give little
weight to the other factors stressed by the Admin-
istrative Law Judge since the record clearly indi-
cates that Respondent consciously manipulated
these factors for the purpose of justifying its pre-
hire recognition of Bakery Workers Local 401 as
the collective-bargaining representative of the deli-
catessen employees and preventing representation
by the Amalgamated Meat Cutters, predecessor of
United Food and Commercial Workers Union.
Respondent's management first discussed plans to
open delicatessen departments in several stores in
its Salt Lake division in February 1979. The divi-
sion's manager asked the division's labor relations
manager, William Daly, to determine Respondent's
best labor relations approach toward the new deli-
catessen employees. Daly reported that no jurisdic-
tional clause in any of Respondent's current collec-
tive-bargaining agreements required Respondent to
recognize a particular union as the representative
of the employees in the projected delicatessen de-
partments.
On April 13, 1979, Daly wrote to the division
manager and stated, inter alia:
Since I am reluctant to extend recognition
to the Amalgamated Meat Cutters, because of
their high rates, I feel it is in our best interest
to get the most competitive rates possible....
We should also make sure all equipment used
in connection with the deli sales operation is
kept away from the Meat Department, and use
bakery coolers and storage as appropriate. Our
bakery sales rates are very favorable and it
would be our intent to negotiate comparable
rates for Deli Sales Clerks. We, of course,
would not do this until we have heard from
the unions claiming jurisdiction. By following
the above procedures we may end up with
either the Retail Clerks having jurisdiction, or
Bakery Sales. Either of these would be more
desirable than tying in with the Meat Cutters.
Daly then proceeded to contact Bakery Workers
Local 401 in order to establish that union as the
collective-bargaining representative of the delica-
tessen employees. On May 16 Daly informed Terry
Powell, secretary-treasurer of Local 401, that Re-
spondent intended to institute an over-the-counter
operation in conjunction with the in-store bakeries
and requested a meeting where the utilization of
bakery sales employees in this operation could be
discussed. On May 29 a meeting with Powell was
held in Daly's office. At this meeting Daly showed
the Bakery Workers Local 401 representative a
floor plan of the new delicatessen department and
indicated that it would be located immediately ad-
jacent to the bakery department. Daly further indi-
cated that sales employees would be interchanged
between the delicatessen and bakery departments
and asked Powell whether he could see any prob-
lems with an accretion of the delicatessen employ-
ees into the bakery unit represented by Bakery
Workers Local 401. Powell approved of the idea
and agreed with Daly that the delicatessen employ-
ees would be covered by the bakery sales contract.
On June 15 Daly and Powell added an addendum
to the bakery sales agreement which established the
rates of pay for delicatessen employees and de-
clared that all other terms and conditions incorpo-
rated in the bakery sales agreement would be fully
applicable to the employees in the delicatessen de-
partment.
The sequence of events described above reveals
a conscious plan on the part of Respondent to
stage manage the location, operations, and employ-
ee working conditions of the delicatessen depart-
ment for the express purpose of choosing a collec-
tive-bargaining representative for its delicatessen
employees. Under these circumstances, we cannot
rely upon the factors stressed by the Administra-
tive Law Judge to permit the delicatessen employ-
ees to be accreted into the bakery sales bargaining
unit. On this basis, and for the reasons stated
above, we hold that Respondent's delicatessen em-
ployees do not show a sufficient community of in-
terest with its bakery sales employees to justify the
accretion of the delicatessen employees into the
bakery sales unit.
Finally, we find, contrary to the statement of
Daly, that the plain language of the jurisdictional
clause in the collective-bargaining agreement be-
tween Respondent and the Meat Cutters Union
contemplates coverage of all employees, such as
those in the delicatessen department, who are en-
gaged in "receiving, handling, cutting, selling,
processing, wrapping, pricing or displaying of
meat, poultry, sausage, or fish, frozen, chilled, or
smoked."
Accordingly, we conclude that the delicatessen
employees in Respondent's Bountiful, Utah, store
are not a lawful accretion to the bakery sales unit
and that by entering into a prehire agreement with
Bakery Workers Local 401 and prematurely recog-
nizing that union as the collective-bargaining repre-
sentative of the delicatessen employees Respondent
has interfered with the employees' Section 7 rights
to self-organization and violated Section 8(a)(1) and
(2) of the National Labor Relations Act, as amend-
ed.
SAFWA STORES. NC
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Safeway Stores, Inc., Bountiful, Utah, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Contributing support and assistance to
Bakery, Confectionary & Tobacco International
Union Local No. 401, AFL-CIO, or any other
labor organization of its employees.
(b) Recognizing Bakery, Confectionary & Tobac-
co International Union Local No. 401, AFL-CIO,
as the representative of employees in its delicates-
sen department in its Bountiful, Utah, store for the
purpose of dealing with Respondent concerning
grievances, labor disputes, wages, rates of pay, or
other conditions of employment, unless and until
the said labor organization shall have demonstrated
its exclusive majority status pursuant to a Board-
conducted election among the employees.
(c) Giving effect to the current collective-bar-
gaining agreement between Respondent and
Bakery, Confectionary & Tobacco International
Union Local No. 401, AFL-CIO, effective March
17, 1978, and expiring May 2, 1981, or to any ex-
tension, renewal, or modification thereof by apply-
ing such agreement, extension, renewal, or modifi-
cation to the employees in the delicatessen depart-
ment in its Bountiful, Utah, store, provided, howev-
er, that nothing in this Order shall require Re-
spondent to vary or abandon any wage, hour, se-
niority, or other substantive features of its relations
with said employees which Respondent has estab-
lished in the performance of this agreement or to
prejudice the assertion by said employees of any
rights they may have thereunder.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Bakery, Confectionary & Tobacco International
Union Local No. 401, AFL-CIO, as the repre-
sentative of the employees in the delicatessen de-
partment of its Bountiful, Utah, store for the pur-
pose of dealing with Respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment of
the employees, unless and until the said labor orga-
nization will have demonstrated its exclusive ma-
jority status pursuant to a Board-conducted elec-
tion among the employees.
(b) Post at its Bountiful, Utah, store copies of the
attached notice marked "Appendix."5 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 27, after being duly signed by
the appropriate representative of Respondent, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 27,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT contribute support and assist-
ance to Bakery, Confectionary & Tobacco In-
ternational Union Local No. 401, AFL-CIO,
or any other labor organization.
WE WILL NOT recognize Bakery, Confec-
tionary & Tobacco International Union Local
No. 401, AFL-CIO, as the representative of
our employees in the delicatessen department
in our Bountiful, Utah, store for the purpose of
dealing with us in regard to grievances, labor
disputes, wages, rates of pay, or other condi-
tions of employment, unless and until the said
labor organization shall have demonstrated its
exclusive majority status pursuant to a Board-
conducted election among employees.
WE WILL NOT give effect to the current col-
lective-bargaining agreement with Bakery
Workers Union, Local 401, by applying such
agreement, extension, renewal, or modification
to the employees in the delicatessen depart-
ment of our Bountiful, Utah, store; however,
we will not vary or abandon any wage, hour,
seniority or other substantive feature which
has been established thereunder or prejudice
the employees' assertion of any rights they
may have.
SAFEWAY STORES, INC. 921
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL withdraw and withhold all recog-
nition from Bakery, Confectionary & Tobacco
International Union Local No. 401, AFL-CIO,
as the representative of the employees in the
delicatessen department of our Bountiful,
Utah, store, for the purposes of collective bar-
gaining unless and until the said labor organi-
zation shall have been duly certified by the
Board as the exclusive bargaining representa-
tive of such employees.
SAFEWAY STORES, INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge:
This proceeding, in which a hearing was held on April
24 and 25, 1980, is based upon an amended unfair labor
practice charge filed against Safeway Stores, Inc.,'
herein called Respondent, by United Food and Commer-
cial Workers Union, Local 537, AFL-CIO & CLC,
herein called Meat Cutters Local 537, and a complaint
issued against Respondent on December 13, 1979, by the
Regional Director for Region 27 of the National Labor
Relations Board, on behalf of the Board's General Coun-
sel, alleging that Respondent violated Section 8(a)(1) and
(2) of the National Labor Relations Act, as amended,
herein called the Act. The complaint in substance alleges
that Respondent recognized and signed a contract with
Bakery, Confectionery & Tobacco International Union
Local No. 401, AFL-CIO, herein called Bakery Workers
Local 401, covering Respondent's delicatessen depart-
ment employees at a time when Respondent had not
hired any delicatessen department employees, thereby
violating Section 8(a)(l) and (2) of the Act. Respondent
filed an answer denying the commission of the alleged
unfair labor practices.
The essential question presented for decision,2 as
posed by the pleadings and litigated at the hearing, is
whether Respondent's newly established delicatessen de-
partment located in its Bountiful, Utah, store is a true
bargaining accretion to the store's preexisting bakery de-
partment, thereby allowing Respondent to enter into a
prehire collective-bargaining agreement with Bakery
Workers Local 401 extending the coverage of Respond-
ent's bakery sales contract with Bakery Workers Local
401 to the delicatessen department employees.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
I The initial charge was filed on October 18, and was amended on De-
cember 3, 1979.
2 In its answer Respondent admits that Bakery Workers Local 401 is a
labor organization within the meaning of Sec. 2(5) of the Act, and that
Respondent meets the Board's applicable discretionary jurisdictional
standard and is an employer engaged in commerce within the meaning of
Sec. 2(6) and (7) of the Act.
post-hearing briefs submitted by the General Counsel and
Respondent, I make the following:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Extension of the Bakery Sales contract to
Employees in the Delicatessen Department
1. The evidence
Respondent operates a chain of retail food stores na-
tionwide. Since 1962 it has operated a store in Bountiful,
Utah, which is the only store involved herein. In June
19793 the Bountiful store was converted into a so-called
superstore. Prior to its conversion into a superstore the
Bountiful store was approximately 20,000 square feet and
was divided into the usual food store departments: Meat,
produce, and grocery. In addition, it had a bakery de-
partment. The conversion into a superstore increased the
store's size from 20,000 to 44,000 square feet and added
several new departments: Camera, gift, pharmacy, vari-
ety, hardware, and delicatessen. In addition, the bakery
was changed from a so-called scratch bakery where the
basic ingredients are mixed from scratch to a bake-off
bakery where only a few items are baked using ingredi-
ents mixed from scratch. Now virtually everything is
made with frozen dough and premixed icings.
All of the employees employed in the Bountiful store,
prior to its June conversion into a superstore, were rep-
resented by two unions. The grocery and produce de-
partment employees were represented by Meat Cutters
Local 537 and covered by the Food Handlers Agree-
ment between that Union and Respondent, effective No-
vember 1, 1977, to October 31, 1980. The meat depart-
ment employees were also represented by Meat Cutters
Local 537 in a separate bargaining unit and covered by
the Meat Cutters Agreement between that Union and
Respondent, effective November 1, 1977, to October 31,
1980. The bakery sales employees were represented by
Bakery Workers Local 401 and covered by the Hand-
shop Bakery Sales Agreement between that Union and
Respondent, effective March 17, 1978, to May 2, 1981.
Likewise, the bakery production workers were represent-
ed by Bakery Workers Local 401 and covered by the
Handshop Bakery Production Agreement between that
Union and Respondent, effective March 17, 1978, to May
2, 1981.
The Food Handlers Agreement provides in pertinent
part that "the bargaining unit shall consist of all Food-
handlers employed by the Employer in its Bountiful,
Utah, retail stores, except meat department employees,
bakery production and sales employees .... "
The Meat Cutters Agreement contains a jurisdictional
clause which reads as follows:
This contract shall cover, and the Union which is a
party thereto shall have jurisdiction over, all em-
ployees as defined by the National Labor Relations
Act who are engaged on the premises in receiving,
: Unles, otherc ie ,Illted all dates herein refer to 1979
S A FE W AY S T O R ES ,I N C~ ~ ~ ~~~~~~~~~~~~~~~~~.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handling, cutting, selling, processing, wrapping,
pricing or displaying of meat, poultry, sausage, or
fish, frozen, chilled or smoked.
The Handshop Bakery Sales Agreement provides in
pertinent part that "the Employer recognizes the Union
as the sole collective-bargaining agent for the Respond-
ent's journeyman and apprentice bakery sales employees
and the head salesclerk employed in the Employer's
bakery shops operated in Salt Lake County." The record
establishes that in practice the parties have applied the
Handshop Bakery Sales Agreement to Respondent's
stores located in Davis County, Utah, where the Bounti-
ful store is located, as well as in Salt Lake County, Utah.
The Handshop Bakery Production Agreement pro-
vides in pertinent part that "the Employer recognizes the
Union as the sole collective bargaining agent" for jour-
neyman and apprentice bakers, cake and roll icers, cake
decorators, janitors, and pan cleaners employed in Re-
spondent's bakery shops located within Salt Lake,
Weber, and Davis Counties, Utah.
In February members of management discussed Re-
spondent's plans to open several new superstores in Re-
spondent's Salt Lake division, the division in which the
Bountiful store is located. The division's manager, Gene
Lawson, asked the division's industrial relations manager,
William Daly, to determine the best labor relations ap-
proach for the Company regarding the union representa-
tion of the employees who would be employed in the
new delicatessen departments which Respondent intend-
ed to open in the new superstores.4 Thereafter, on a date
unspecified in the record, Daly advised Lawson that
there were no specific jurisdictional clauses in any of Re-
spondent's collective-bargaining agreements which re-
quired Respondent to recognize a particular union as the
bargaining representative of the delicatessen department
employees. Lawson advised Daly that Respondent
planned to open its first delicatessen department in the
Bountiful store in either late June or early July and
asked him to recommend how Respondent should pro-
ceed in this matter with respect to union representation
of the delicatessen department employees.
On April 13 Lawson received a memorandum from
Daly which reads as follows:
In a recent discussion you inquired as to the
proper way to handle Deli sales.
After checking all contracts of the Salt Lake Di-
vision, we find that no union has specific jurisdic-
tion over the sale of deli items. Of course, we could
expect the Clerks who formerly stocked the deli
counter to claim work has been taken from them as
a result of our change in deli sales.
Since I am reluctant to extend jurisdiction to the
Amalgamated Meat Cutters, because of their high
rates, I feel it is in our best interest to get the most
competitive rates possible.
Initially we should take the position that employ-
ees serving deli customers are non-union, as long as
we do not use current in-store union personnel. We
4 Respondent previously had not operated delicatessen departments in
any of its stores in this area of the country
should also make sure all equipment used in connec-
tion with the deli sales operation is kept away from
the Meat Department, and use bakery coolers and
storage as appropriate.
Our Bakery Sales rates are very favorable and it
would be our intent to negotiate comparable rates
for Deh Sales Clerks. We, of course, would not do
this until we have heard from the unions claiming
jurisdiction.
By following the above procedures we may end
up with either the Retail Clerks having jurisdiction,
or Bakery Sales. Either of these would be more de-
sirable than tying in with the Meat Cutters.
Should you require additional information, please
let me know.
On April 16, 1979, Lawson received another memo-
randum from Daly on the subject of the "new deli oper-
ation," in which, among other things, Daly recommend-
ed that Respondent "use non-union clerks to sell deli
items since no union has jurisdiction over this function."
On May 16 Daly wrote Terry Powell, the secretary-
treasurer of Bakery Workers Local 401, as follows:
In the near future we are planning on instituting
an over-the-counter operation in conjunction with
in-store bakeries. I would like to meet with you at
your earliest convenience to discuss this proposed
operation and how we may utilize Bakery Sales em-
ployees in performing this function.
Please give me a call to set up a meeting.
On May 29 Powell met with Daly at Daly's office at
which time Daly indicated that Respondent intended to
establish delicatessen deparments in its new superstores.
He showed Powell a blueprint outlining the floor plan of
a delicatessen department which indicated that it would
be located immediately adjacent to the bakery depart-
ment. In describing the manner in which the delicatessen
department would operate, Daly explained to Powell
that Respondent intended to interchange sales employees
back and forth between the bakeries and delicatessens
and asked whether Powell could see any jurisdictional
problems if the delicatessen department employees were
accreted to the bakery sales contractual unit represented
by Powell's Union. Powell indicated that he approved of
this idea. Powell and Daly agreed that the delicatessen
department employees would be covered by the bakery
sales contract. 5
5 Powell's and Daly's testimony about this meeting conflicts in only
one significant respect. Daly testified that there was no agreement that
the delicatessen department employees would be represented by Bakery
Workers Local 401 and covered by its bakery sales contract. Powell testi-
fied that such an agreement was reached at this meeting. Powell im-
pressed me as the more credible witness on this point, so I have credited
his testimony. Moreover the content of Daly's June 5 letter to Powell,
which is set out in detail infra, supports Powell's testimony. The tenor of
this letter is that the parties had already agreed that Bakery Workers
Local 401 would represent the delicatessen department employees who
would be covered by the parties bakery sales contract, and that all that
was left was to reduce this verbal agreement into an addendum to the
bakery sales contract.
SAFEWAY STORES. INC. 923
On June 5 Daly wrote Powell as follows:
Further to our meeting on May 29 in which we
discussed the over-the-counter deli operation. We
would like to proceed with this activity within the
next few weeks.
You are to advise me as to what is required as an
addendum to our current backpay contract in order
to provide appropriate coverage for our employees
under your bakery contract.
Initially we intend to begin deli operations at one
of our stores in conjunction with the bakery, and
subsequently plan to expand to other stores which
contain in-store bakeries.
Please advise if we can proceed with this activity
pending the addendum to our bakery contract.
On June 15 Daly and Powell entered into an adden-
dum to the current Bakery Sales Agreement. The adden-
dum reads as follows:
Bakery Sales Clerks will be used interchangeably
between the Deli Sales operation and Bakery Sales
operation. The function will entail over-the-counter
sale of Bakery and Deli items. The rate of pay will
be the same as the existing rate of pay for Bakery
Sales Clerks, as follows:
[Pay rates for head deli and/or bakery clerk, ap-
prentice, and journeyman positions, effective May 6
and November 4, 1979, and May 4 and November
2, 1980, omitted from publication.]
All other terms and conditions incorporated in
our Bakery Sales contract with Local 401, effective
3-17-78 and expiring 5-2-81, will be in full force
and effect for all employees engaged in the above
classifications.
On June 28 the delicatessen department in the Bounti-
ful store opened for business. It was staffed with five em-
ployees: Douglas Kay, Anita Whipple, Norma Treft,
Mark Bigler, and Steven Louie. Louie was the depart-
ment manager. The remaining four workers were sales-
clerks. None had worked for Respondent previously.
Kay was hired June 16, Whipple and Treft were hired
on June 17, and Bigler and Louie were hired on June 18.
None of these employees were members of Bakery
Workers Local 401 or had otherwise designated that
Union to represent them as their collective-bargaining
agent.
Early in October a representative from Meat Cutters
Local 537 contacted Powell and Daly and, in essence,
notified them that it was Meat Cutters Local 537's posi-
tion that, pursuant to the jurisdictional provision in its
current Meat Cutters Agreement covering Respondent's
meat department employees, Meat Cutters Local 537, not
Bakery Workers Local 401, had jurisdiction over the
delicatessen department in the Bountiful store.
On October 8 Daly, by memorandum, notified Lawson
about Meat Cutters Local 537's jurisdictional claim. This
memorandum in pertinent part reads as follows:
Meat Cutters Local 537 called this morning re-
garding contributions into the Health & Welfare
fund for employees engaged in Deli operations in
the Bountiful store. They are claiming jurisdiction
of the Deli Sales operation on the premise that their
jurisdiction language covers handling of all meat
products within the store.
As you are aware, the reason we negotiated this
agreement with Bakers Local 401 was to prevent
having to pay Meat Cutter rates in our Deli Sales
operation. I advised Bob Graham of Local 537 that
I would get back to him regarding this matter.
I am of the opinion that since we have reached
this agreement with Bakers Local 401 that any ar-
gument Local 537 has concerning jurisdiction
would involve the right of Local 401 to claim juris-
diction over this unit. They will be notified accord-
ingly.
On December 3, Powell wrote Meat Cutters Local
537, with a copy of this letter to Respondent's attorney,
stating that Bakery Workers Local 401 was disclaiming
its interest in representing Respondent's delicatessen de-
partment employees. The letter reads as follows:
This letter represents notice to Meatcutters Local
537 of the intention of Bakers Local 401 to with-
draw as representative for Safeway Deli Employ-
ees. In researching the Meatcutters Contract with
Safeway, we believe the Addendum Agreement be-
tween Safeway and Bakers Local 401 does not
allow or give jurisdiction to Local 401. As the Busi-
ness Representative for Local 401, I feel that due to
my being new in this position at the time this Deli
situation was presented to me by Mr. Daley [sic],
Bakers Local 401 entered into an agreement un-
aware of the provisions provided for under the
Meatcutters contract.
I hope this matter can be resolved between all
parties involved and you can count on my full co-
operation.
Best regards.
Bakery Workers Local 401 has in fact disclaimed its in-
terest in representing the employees employed in the
delicatessen department in the Bountiful store;6 Howev-
er, Respondent has continued to abide by the terms of its
agreement with Bakery Workers Local 401 covering
those employees.
2. Conclusions
As discussed supra, Respondent recognized Bakery
Workers Local 401 as the bargaining representative of its
delicatessen department employees, and Respondent and
Bakery Workers Local 401 extended their Handshop
Bakery Sales Agreement to cover the delicatessen de-
partment employees at the Bountiful store even though
the store was not open for business and no delicatessen
employees were employed. Respondent in effect entered
6 On January 7 1980 Powell, by letter to Respondent's attorney, reit-
erated Bakery Workers Local 401's position that it had disclaimed any
Interest in representing the delicatessen department employees employed
b Rpondent
SAFEWAY STORES. INC 23
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into a prehire contract which constitutes premature rec-
ognition in its barest form. It has long been settled that
this type of conduct, absent accretion, unlawfully assists
a union in violation of Section 8(a)(l) and (2) of the Act
regardless of the employer's good faith or the absence of
a question concerning representation. E.g., Schreiber
Trucking Company, Inc., 148 NLRB 697, 702-703 (1964);
General Cinema Corporation and Its Wholly Owned Sub-
sidiary, Gentilly Woods Cinema, Inc., 214 NLRB 1074,
1075 (1974). Respondent's principal defense to this con-
duct is that the delicatessen department employees em-
ployed in the Bountiful store constitute an accretion to
the unit of bakery sales employees covered by its Hand-
shop Bakery Sales Agreement with Bakery Workers
Local 401. 7 The evidence pertinent to this defense has
been set out and evaluated in the following section.
B. Accretion of the Delicatessen Department
Employees to the Unit of Bakery Sales Employees
1. Applicable principles
The accretion issue has been aptly described by the
court in Lammert Industries, a Division of Componetrol,
Inc., a Subsidiary of I-T-E Imperial Corporation v.
N.L.R.B., 578 F.2d 1223, 1225, fn. 3 (7th Cir. 1978), in
these terms:
An accretion is simply the addition of a relatively
small group of employees to an existing unit where
these additional employees share a sufficient com-
munity of interest with the unit employees and have
no separate identity. The additional employees are
then properly governed by the unit's choice of bar-
gaining representatives. N.L.R.B. v. Food Employers
Council, Inc., 399 F.2d 501, 502-503 (9th cir. 1968).
The question of "whether a group of employees [consti-
tutes] an 'accretion' to an existing unit, so that the group
is governed by the larger unit's choice of bargaining rep-
resentatives, is similar to the issue of a particular unit's
'appropriateness' for purposes of bargaining." N.L.R.B.
v. Food Employers Council, Inc., 399 F.2d at 502.
"Whether or not a particular operation constitutes an ac-
cretion or separate unit turns, of course, on the entire
congeries of facts in each case." The Great Atlantic and
Pacific Tea Company Family Savings Center, 140 NLRB
1011, 1021 (1963). In deciding whether a new group of
employees is in an accretion to an existing bargaining
unit, the Board not only considers such factors as func-
tional integration, level of management control, similarity
of working conditions, bargaining history, employee in-
terchange, job skills and functions, and physical proxim-
I7 reject Respondent's further contention that the Board should defer
to the arbitral process under Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971), as, in my opinion, the underlying
issue presented by this controversy is not contractual but, rather, relates
solely to a question of accretion, which the Board has held is a matter
solely within its competence to decide and, further, because, in view of
the absence of any contractual provision providing for tripartite arbitra-
tion, Bakery Workers Local 401 and Meat Cutters Local 537 would not
both be parties to the arbitral process. See Retail Clerks Loal 588. Retail
Clerks International .Association, AFL-CIO (Raley's), 224 NLRB 1638,
1640 (1976).
ity, but also gives special weight to the interests of the
unrepresented employees in exercising their own right to
self-organization. See N.L.R.B. v. Food Employers Coun-
cil, Inc., 399 F.2d at 504. The Board, with court approv-
al, has restrictively applied the accretion principle be-
cause it operates to abrogate the accreted employees'
Section 7 rights; thus, an accretion, unlike an ordinary
unit determination, requires a showing not only that the
expanded unit is appropriate, but also that the smaller
group of added employees would notTI, itself constitute
an appropriate unit. See Sheraton-Kauai Corporation v.
N.L.R.B., 429 F.2d 1352, 1354, 1355-57 (9th Cir. 1970),
citing Melbet Jewelry Co., Inc., and I.D.S.-Orchard Park,
Inc., 180 NLRB 107, 109-110 (1969). Accord: N.L.R.B.
v. Security Columbian Banknote Company, a Division of
US. Banknote Corporation, 541 F.2d 135, 140 (3d Cir.
1976); Retail Clerks Local 588, Retail Clerks International
Association, AFL-CIO [Raley's] v. N.L.R.B., 565 F.2d
769, 773 (D.C. Cir. 1977); Meijer, Inc., a Michigan Corpo-
ration v. N.L.R.B., 564 F.2d 737, 742-743 (6th Cir. 1977).
As the Board explained in Melbet Jewelry, 180 NLRB at
110, even though it might find an overall unit appropri-
ate on a representation petition and, thus, give all em-
ployees included an equal voice in the initial representa-
tion decision, it will not, "under the guise of accretion,
compel a group of employees, who may constitute a sep-
arate appropriate bargaining unit, to be included in an
overall unit without allowing those employees the oppor-
tunity of expressing their preference in a secret ballot
election or by some other evidence that they wish to au-
thorize the [u]nion to represent them." Likewise, the
court in Westinghouse Electric Corporation v. N.L.R.B.,
440 F.2d 7, 11 (2d Cir. 1971), in discussing the applicabil-
ity of the accretion doctrine declared:
As a general rule, the accretion doctrine should be
applied restrictively since it deprives the new em-
ployees of the opportunity to express their desires
regarding membership in the existing unit.... And
when the relevant considerations are not free from
doubt, it would seem more satisfactory to resolve
such close questions through the election process
rather than seeking an addition of the new employ-
ees by a finding of accretion.
2. The evidence
a. Geographic proximity
The delicatessen and bakery departments are located
immediately adjacent to one another in the front corner
of the store, apart from the other food departments.
However, they are separated by a wall.
b. Skills, duties, and functions
The bakery department sells bakery products, i.e.,
breads, cakes, rolls, doughnuts, pies, cookies, etc., which
are prepared in the bakery. Virtually all bakery sales are
made across the counter by bakery salesclerks who take
the customers' orders, and then package and price the
orders. There are only a minimal number of prepackaged
items stocked in the bakery department and sold on a
SAFEWAY STORES, INC, 925
self-service basis during the time that bakery sales em-
ployees are on duty.
The delicatessen department sells 40 different kinds of
luncheon meats and 125 other delicatessen items such as
cheeses, fish products, hard boiled eggs, olives, pickles,
salads, and hot items such as barbecued chicken, ham, or
turkey, barbecued spareribs, macaroni and cheese, and
hotdogs, all of which are prepared in the delicatessen de-
partment. In addition, sandwiches are prepackaged or
made to order. All items in the delicatessen departmef
are sold across the counter by the delicatessen employ-
ees. Nothing is sold on a self-service basis. The luncheon
meats and cheeses are sliced to order and then weighed,
priced, and packaged. Likewise, virtually all of the other
delicatessen items are sold in bulk and weighed, priced,
and packaged for the customers by the delicatessen de-
partment employees. The various hot foods are prepared
by the delicatessen department employees, who also pre-
pare the prepackaged sandwiches.
The record also estalishes that on a self-service basis
either the grocery and/or the meat department sells fish
products, cheeses, and salads which are prepackaged,
priced, and displayed by meat department employees.
Also, these departments carry a variety of luncheon
meats of which 95 percent have been prepackaged at
various packing houses, but which are price marked and
stocked by meat department employees. The only lun-
cheon meats cut to order for customers by meatcutters
are salami and bologna. The rest is sold on a self-service
basis. Finally, the record also reveals that for approxi-
mately a 5-year period ending early in 1979 chicken and
ribs were barbecued in the meat department by meat de-
partment employees and displayed in that department.
The job duties of the delicatessen department employ-
ees are as follows: They prepare coffee, salads, and the
hot deli items described previously, and display the food
sold in the deparment. While waiting on customers, they
slice cheeses and luncheon meats, make sandwiches to
order, dish out salads or hot meals, prepare party trays,
or simply sell prepackaged sandwiches or doughnuts and
coffee. They are also responsible for keeping the depart-
ment clean. The department contains the following
equipment used by the delicatessen employees: A hotdog
rotisserie, steam table, coffeemaker, soda dispenser, rotis-
serie oven, and slicer. The employees employed in the
delicatessen department spend most of their time waiting
on the public.
The job duties of the bakery salesclerks are to display
the bakery products, clean the department, and wait on
the customers. While waiting on the customers, they
package and price the bakery goods. On rare occasions
they will decorate a cake or ice doughnuts. They also
use the bread slicer in the department to slice bread upon
the customer's request. Like the delicatessen department
employees, they spend most of their time waiting on the
public.
The record also establishes that no prior experience is
necessary for either a delicatessen or a bakery salesclerk
and that the skills necessary for either position are ac-
quired by on-the-job training in a short period of time.
The most important skill required for both jobs is the
ability to meet and deal with the public.
c. Interchange of employees
The bakery department's sales employees frequently
work in the delicatessen department on an unscheduled
basis performing the usual duties of delicatessen depart-
ment employees. Likewise, the delicatessen department
employees work frequently in the bakery department on
an unscheduled basis performing the usual duties of the
bakery salesclerks. Thus, during busy periods bakery
sales employees help out in the delicatessen department
and employees from that department help out in the
bakery department. Also, since there is usually only one
salesclerk employed in the bakery and one in the delica-
tessen during the 8-hour night shift, the bakery salesclerk
takes care of the delicatessen's customers as well as the
customers from the bakery when the delicatessen depart-
ment employee has a coffee or meal break. Likewise, the
delicatessen department employee takes care of the bak-
ery's business as well as that of the delicatessen when the
bakery salesclerk on the night shift takes a coffee or meal
break or otherwise leaves the department. In addition to
the aforesaid unscheduled interchange between the
bakery sales and delicatessen department employees,
which occurs on a regular basis, there is employee inter-
change between these two departments which occurs
less frequently on an emergency basis; i.e., when an em-
ployee is absent from work due to illness or for personal
reasons. If a bakery sales or delicatessen department em-
ployee is not available in these emergency situations, a
grocery clerk is called upon to work either in the bakery
or delicatessen, whichever department is short-handed.
Initially, during the first 5 months of the delicatessen
department's operation, there was no scheduled inter-
change between the bakery sales employees and delica-
tessen department employees.8 The only interchange was
the above-described regularly unscheduled interchange
and emergency interchange. It was not until the week
ending November 24, 1979, that the first instance of
scheduled interchange took place when delicatessen de-
partment employee Kelly was scheduled to work 20 of
her 37 scheduled hours in the bakery department.9
Thereafter, two of the store's three bakery sales employ-
ees were regularly scheduled to work in the delicatessen
department and two of the store's five delicatessen de-
partment employees were regularly scheduled to work in
the bakery department. O They did in fact work in the
I Store Manager Lefevre testified that initially there was no regularly
scheduled interchange between tile bakery sales and delicatessen depart
ment employcces because the Company was training employees in both
departments to assume the positions of delicatessen department manager
and bakery department manager n other superstore, which were sched-
uled to open Ill the immediate future: thus, there was a surplus of help
during his period in the delicatessen and bakery. and as a consequence it
was unnecessary to regularly schedule bakery sales employees to work in
the delicatessen and delicatessen department employees to work il the
bakery. I have credited this testimony inasmuch as Lefes re impressed me
as all honesl winless and his testimoni.. considered in the cointext of the
whole record, is not inherently implausible
' Kelly did not i fact work in the bakery department that wvetk inas-
much as Respondent', records shesow that she worked all of her scheduled
hours in the delicatecsen
"' The four eplo, ocs ho intrrchaniged ere employecs who nor-
nmall Iorked on a regular part-time basis hose baker) salesclerks and
delicalessen deparlment employees employed on a full-ltime hasis are not
C(ontinued
SAFEWAY STORES, INC.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bakery and delicatessen departments as scheduled and
perform the work normally performed in those depart-
ments.
There has been no permanent or temporary transfers
of employees between the bakery and delicatessen de-
partments.
One grocery department employee, Moss, transferred
permanently into the bakery as a salesclerk and another
grocery department employee, Meachum, permanently
transferred into the delicatessen. Also, a meat department
wrapper, Long, worked regularly as a management
trainee in the delicatessen for the first 4 or 5 months of
its operation. No delicatessen department employee or
bakery sales employee has transferred into the grocery
or meat department or otherwise has been assigned to
work in those departments.
d. Functional integration
Respondent's retail operations manager, Michelson,
testified that the reason the delicatessen in the Bountiful
store was placed adjacent to the bakery was that Re-
spondent's in-store bakeries were marginal operations
and management thought that by placing a delicatessen
next to the bakery it would make the bakery a more
profitable department. Michelson further testified that it
was management's expectation that, because the items of-
fered for sale by these two departments are compatible
and similar in nature, the sales made in one department
would stimulate sales in the other. It is management's
intent, Michelson testified, to eventually integrate the op-
erations of these two departments into one. Presently,
however, the bakery and delicatessen departments are
treated in a number of significant respects by Respondent
as separate and distinct departments. Like the store's
other departments, as described infra, they have separate
department managers and merchandising managers. Em-
ployees are classified as either bakery or delicatessen de-
partment employees. Each department maintains its own
employee work schedule and separate books of account
and business records which deal with such matters as
labor costs, purchases, and sales. Further, when the deli-
catessen uses bread or rolls from the bakery to make
sandwiches, they are shown as a purchase on the delica-
tessen's books and as a sale on the bakery's books. Also,
all items purchased by customers in the bakery are
checked out on the cash registers as bakery items.
whereas all items purchased in the delicatessen are
checked out as delicatessen items.
The evidence of operational integration between the
bakery and delicatessen departments is as follows: As dis-
cussed supra, there is interchange between the employees
employed in those departments on a regular basis during
the ordinary course of business; a half-dozen pasteries
prepared in the bakery department are displayed for sale
in the delicatessen department; sandwiches prepared to
order in the delicatessen are made with bread or rolls
baked in the bakery; the prepackaged sandwiches dis-
played in the delicatessen are made with bread or rolls
scheduled to work in departments other than their own, but regularly in-
terchange, as described above, on an unscheduled and emergency basis
baked in the bakery; customers who purchase items in
the delicatessen or bakery pay for their purchases at a
cash register located in the delicatessen if they intend to
eat them on the premises, and even when they make pur-
chases to take home they may pay for them at the delica-
tessen's register, whereas all other purchases made in the
store must be checked out via the general checkout cash
registers at the front of the store.
In connection with the subject of food consumption on
the store premises, the record reveals that in approxi-
mately January 1980, when Respondent discovered that
its delicatessen department was losing money, it decided
to try to increase business in both the delicatessen and
bakery by encouraging customers to eat delicatessen and
bakery items on the premises. It did this by installing a
soft drink dispenser, a coffeemaker, a hotdog rotisserie,
and a display of several pasteries from the bakery in the
delicatessen, and seting up a table with chairs in the area
in front of the bakery and delicatessen and ordering an
additional table with chairs. Since it was necessary to
have customers who ate their food on the premises pay
for it immediately, a cash register was installed in the
delicatessen which, as described above, was also used for
other delicatessen or bakery purchases instead of the
general checkout registers. Thus, a customer may now
purchase a pastry from the bakery or from delicatessen, a
cup of coffee or soft drink from the delicatessen, or a
sandwich which is made with bakery bread or rolls from
the delicatessen, and sit down at a table situated in the
area of the bakery-delicatessen to eat his purchases.
e. Working conditions
The terms of employment of the bakery sales employ-
ees and delicatessen department employees, i.e., wages
and fringe benefits, are identical because they are gov-
erned by Respondent's Handshop Bakery Sales agree-
ment with Bakery Workers Local 401. As noted previ-
ously, the reasons Respondent's Industrial Relations
Manager Daly contacted Secretary-Treasurer Powell of
Meat Cutters Local 401 and suggested that Powell agree
to accrete the delicatessen department employees to the
unit of the Company's bakery sales employees and cover
them under the Handshop Bakery Sales Agreement "was
to prevent having to pay Meat Cutters rates in [Respond-
ent's] Deli operation." Also, Powell testified that the
reason he agreed to this suggestion was that it afforded
Meat Cutters Local 401 an opportunity to enlarge its
membership. Under these circumstances I do not believe
that the similarity of the wages and fringe benefits being
paid to the delicatessen department and bakery sales em-
ployees is a significant factor in determining whether the
delicatessen department employees constitute a normal
accretion to the unit of bakery sales employees.
The delicatessen department and bakery sales employ-
ees wear the same uniforms which differ from the uni-
forms worn by the store's other employees.
The store is open 24 hours daily. The bakery, delica-
tessen, and meat departments are staffed with salesper-
ri This practice commciccd on April 23, 1980, the day before the
hearing ill this case
SAFEWAY STORES. INC. 927
sons during approximately the same hours, from about 7
or 8 a.m. to 9 or 10 p.m.
All of the store's employees, including the bakery sales
employees and delicatessen department employees, share
common break and restroom facilities and use the same
timeclock.
f. Supervision
Each department in the store has its own department
manager who is responsible to the store manager. The
bakery sales manager, who is the baker covered by the
bakery production contract between Respondent and
Bakery Workers Local 401, spends most of the time
doing bakery production work. The delicatessen depart-
ment manager spends most of the time performing the
same work as the other employees in that department. In
addition, the bakery sales manager and the delicatessen
department manager order the supplies for their depart-
ments and train and direct the work of the employees in
their departments. They also make out their employees'
work schedules' and have the authority to allow em-
ployees in their departments to leave work early. The
bakery manager and delicatessen manager, like the other
department managers, are responsible to the store man-
ager. It is the store manager who polices the work in the
various departments to make sure that it is being per-
formed in conformance with the Respondent's policies.
He has the sole authority to discipline employees. All in-
terviewing and hiring of job applicants is done by the di-
vision's employment representative.
Each of the store's departments, including the bakery
and delicatessen, has its own divisional merchandising
manager who provides the departments with technical
assistance. When the delicatessen department first
opened, late in June 1979, its merchandising manager
was present in the department regularly, until the fall,
training the employees in their work and assisting the
delicatessen manager.
g. The size of the delicatessen department's
employment complement
The parties stipulated that on June 28, 1979, the date
the delicatessen department opened for business, it em-
ployed five employees, including the department man-
ager, and the bakery department employed four sales-
clerks.
Respondent's records show that for the weeks ending
July 21 and 29 the delicatessen department employed
five employees, which included the department manager
and a management trainee, and that the bakery depart-
ment employed five salesclerks.
Respondent's records show that during November and
December the delicatessen department employed five
employees, which included the department manager and
12 Since December 1979, when the interchange between the bakery
sales and delicatessen department employees commenced on a regularlb
scheduled basis. the managers of these departments have prepared tlheir
weekly department work schedules only after consulting with one an-
other.
a management trainee, s3 and the bakery department em-
ployed three salesclerks.
In summation, the record, when viewed most favor-
ably to Respondent, that is, by excluding the manager of
the delicatessen department and the management trainee,
reveals that the Bountiful store's delicatessen department
normally employs either the same number or a greater
number of employees than the number of salesclerks em-
ployed in the bakery. However, as described previously,
the bargaining unit of Respondent's bakery salesclerks
represented by Bakery Workers Local 401 encompasses
not just the Bountiful store employees, but all of the
bakery salesclerks employed by Respondent in its several
stores located in Salt Lake and Davis Counties, Utah.
Under these circumstances I agree with Respondent that
the General Counsel has not established that this is a sit-
uation where the employees sought to be accreted nu-
merically overshadow the existing bargaining unit.
h. Bargaining history
The delicatessen department in the Bountiful store was
the first one operated by Respondent in this area; thus,
there is no history of bargaining for these workers be-
tween Respondent and a labor organizaion.
3. Conclusions
The evidence herein when evaluated in the light of the
applicable legal principles has led me to conclude that
the Bountiful store's delicatessen department employees
are an accretion to the bakery sales bargaining unit rep-
resented by Bakery Workers Local 401. In reaching this
conclusion, I was influenced by the following consider-
ations taken in their totality:
(a) The delicatessen department evolved out of Re-
spondent's genuine desire to make its bakery department
into a more profitable operation by placing it immediate-
ly adjacent to the newly opened delicatessen department
in order to stimulate sales in the bakery department and
vice versa.
(b) The delicatessen department is situated immediately
adjacent to the bakery department at the front corner of
the store and these departments are located apart from
the other food departments.
(c) The degree of employee interchange to and from
the bakery and delicatessen departments is substantial
and takes place not only in emergency situations, but on
a daily and scheduled basis during ordinary business con-
ditions and involves I I of the employees employed in
these departments. 4 The extensive interchange between
the employees in the delicatessen and bakery, the close
proximity of these two departments, and their separation
from the other food departments, when taken together, is
11 Department Manager Trefis' name does not appear on Respondent's
records for November, and appears in only one of the weeks in evidence
for December due to the fact that during the latter part of 1979 and in
1980 she as absent from work for a significant period of time due to an
in)ur
'' Although only regular part-time employees are regularly scheduled
to interchange, the record shows that the full-time bakery salesclerks reg-
ularl 5 swork in the delicaltesen ad that the full-time delicatessen sorkers
regulari s ork in the bakery during bus\ periolds and d uring the night
shift
SAFEWAY STORES. INC.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
calculated to create significant common employment in-
terests and a sense of solidarity among the employees
employed in the bakery and delicatessen.
(d) The delicatessen and bakery deparments are oper-
ationally integrated in certain significant respects: the
delicatessen department employees give assistance to,
and receive the same from, employees in the bakery de-
partment during the ordinary course of business.
1 5 The
delicatessen department obtains its bread and rolls from
the bakery; the weekly work schedules of the depart-
ments are prepared jointly; the customers who make pur-
chases from the delicatessen or the bakery may check
out their purchases from these departments using a cash
register located in the delicatessen, whereas all other
food purchased in the store must be checked out through
the general checkout registers; and a customer who has a
meal or snack seated at the table in the bakery-deli area
may have purchased a pastry which originated in the
bakery, a drink which originated in the delicatessen and
a sandwich or hot dog which originated in the delicates-
sen but was made with bread or rolls which originated
from the bakery.
(e) The employees employed in the delicatessen de-
partment wear the same uniforms as the bakery sales em-
ployees and work the same hours.
(f) The bakery sales employees and delicatessen de-
partment employees are not required to have prior expe-
rience, but, rather, are trained on the job and acquire the
skills of their job after a short period of training. Their
jobs are unskilled. Besides waiting on customers they
stock display cases, do cleanup work, and price and
wrap customer's purchases. I recognize that the delica-
tessen department employees, as described in detail
supra, have a number of duties not performed by the
bakery sales employees. However, in evaluating whether
delicatessen department employees have a community of
interest with bakery sales employees by virtue of their
common skills and job functions, the fact that delicates-
sen department employees perform certain duties not
done by the bakery sales employees is outweighed by the
fact that bakery sales and delicatessen department em-
ployees, unlike the store's other food department em-
ployees, constantly wait on customers and fill their spe-
cial orders. The primary duty of the bakery sales em-
ployees and the delicatessen department employees is the
same-to wait on customers and to fill their special
orders. This is in sharp contrast to the primary duties of
the employees employed in the other food departments
in the store who, since they work in self-service depart-
ments, are only incidentally involved in customer serv-
ice.
(g) Although the bakery and delicatessen departments,
like the other departments, have their own department
managers, neither manager exercises more than minimal
authority in personnel matters.'
6 Their authority is limit-
' This occurs during busy periods, and, more significantly, since there
is only one salesperson employed in each department on the night
shift, it
is essential for the continued operation of these departments for
the em-
ployees to assist one another when they leave their departments for
coffee or meal breaks or for whatever reason.
16 There is insufficient evidence to establish that they have a single in-
dicia of a statutory supervisor within the meaning of Sec. 2(11)
of the
Act.
ed to preparing the employees' weekly work schedules,
training new employees, permitting employees to leave
work early, and directing the work of the employees. 7
The division employment representative interviews and
hires applicants for employment, and the store manager
otherwise exercises authority over personnel matters, in-
cuding the disciplining of employees.
On the basis of the foregoing, I find that the delicates-
sen department employees employed by Respondent in
its Bountiful store constitute a normal accretion to the
existing bargaining unit of bakery sales employees repre-
sented by Bakery Workers Local 401, and were properly
treated as such by Respondent and Bakery Workers
Local 4 0 1 .8 I recognize, as pointed out by
the General
Counsel, that the delicatessen department was initially
staffed by a new work force which numerically outnum-
bers the bakery sales employees;'
9 that each department
has a separate manager, purchases its own merchandise,
maintains separate books of account, sells different prod-
ucts, that a certain amount of interchange exists between
the grocery and delicatessen departments;
20 and that the
bakery sales and delicatessen employees share common
break and restroom facilities with the other store em-
ployees and use the same timeclock as the other store
employees. Nevertheless, the other considerations dis-
cussed supra, have persuaded me that the delicatessen de-
partment employees do not constitute an appropriate bar-
gaining unit, either by themselves or together with the
meat department employees,
2 and those same consider-
II Since the work performed by the employees in the bakery and deli-
catessen departments is of a routine nature, the department managers
spend very little of their working time directing the employees' work. In
this regard it is undisputed that the delicatessen department manager
spends most of the time doing the same work as the other employees and
that the bakery sales manager, who is a baker, spends most of the
time
performing the duties of a baker.
I" In evaluating the evidence to decide whether the delicatessen de-
partment employees constitute an accretion to the unit of bakery
sales
employees, I have not given any weight to Bakery Workers Local
401's
subsequent disclaimer because its basis for disclaiming its representative
status stemmed from its belief that the delicatessen department employees
fell within the jurisdiction of Meat Cutters Local 537 In similar circum-
stances the Board has held: "We are not bound by jurisdictional arrange-
ments of unions." Seaway Food Town, Inc.. 171 NLRB 729, 730 (1968).
See also East Manufacturing Corporation, 242 NLRB 5 (1979).
19 Even though the delicatessen department employees outnumber the
bakery sales employees at the Bountiful store, the General Counsel
has
not established that delicatessen department employees numerically
over-
shadow the unit of bakery salesclerks involved herein inasmuch as.
as
found supra, the bakery sales unit is larger than the number of bakery
sales employees employed in the Bountiful store In any event,
even as-
suming that the unit of bakery sales employees is limited to the Bountiful
store, I am persuaded that the disparity in numbers between the delicates-
sen department employees and bakery sales department employees
em-
ployed in that store is not so significant sto as to preclude a finding
of an
accretion under all of the circumstances of this case.
20 This interchange occurs only during emergency situations and is
only from the grocery department into the delicatessen There is
no evi-
dence of delicatessen employee's woirking i the grocery department
or
an department other than the bakery
2 A unit of delicatessen and meat department employees is not an ap-
propriate one where, as here. there is a lack of interchange between
these
departments. they are locatd in differenl areas of the store. they have dif-
ferent managers, and the delicatessen department employees need
not
possess, and do not in fact utilize in their work, the skills and knowledge
required of the meat department employees In this last regard, although
the delicatessen department employees handle and slice luncheon meats
Continued
-
SAFEWAY STORES, INC. 929
ations demonstrate that the community of interest of the
delicatessen department employees is so clearly identified
with the bakery sales employees so as to require their in-
clusion in that bargaining unit.
It is for the reasons set forth above that I find that the
delicatessen department employees are so clearly identi-
and cheeses and perform their work which the meat department employ-
ees perform now or have done in the past, they have neither the training
in, nor the need to use, the skills required of the employees in the meat
department. Rather, their primary function is to wait on customers and
prepare customers' special orders, whereas this duty is only incidental to
the primary functions of the meat department employees
fled with the bakery sales employees so as to require
their inclusion in that bargaining unit.
It is for the reasons set forth above that I find that the
delicatessen department employees employed by Re-
spondent at its Bountiful store do not constitute a group
entitled to separate representation or representation with
the meat department employees, and that their employ-
ment interests are such as to constitute them an appropri-
ate part of and an accretion to the bakery sales unit rep-
resented by Bakery Workers Local 401.
[Recommended Order for dismissal omitted from pub-
lication.]