Save Mart Of Modesto, Inc.

National Labor Relations Board - Board Decisions

May 22, 1989

293 N.L.R.B. 1190 (N.L.R.B. 1989)

1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Save Mart of Modesto , Inc. and United Food and
Commercial Workers Union , Butchers Local
126, AFL-CIO. Case 32-CA-6335
May 22, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 21, 1984, Administrative Law
Judge Clifford H. Anderson issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel and the
Charging Party each filed limited cross-exceptions
and briefs in support of their limited cross-excep-
tions and in support of the judge's decision.
On September 29, 1987, the National Labor Re-
lations Board issued an order remanding the pro-
ceeding to the judge for the limited purpose of pre-
paring a supplemental decision containing specific
findings of fact, and conclusions and recommenda-
tions in light of such findings, concerning the day-
to-day supervision of the meat department at the
Respondent's Chowchilla store, and findings of
fact, conclusions of law, credibility resolutions, and
recommendations whether the Respondent was ob-
ligated to recognize the Union at the Chowchilla
store under the union recognition clause in the col-
lective-bargaining agreement between the Respond-
ent and the Union.'
The judge issued the attached supplemental deci-
sion on November 12, 1987. Subsequently, the Re-
spondent filed exceptions to the supplemental deci-
sion and a supporting brief, and the General Coun-
sel filed cross-exceptions and a brief in support of
cross-exceptions. The Charging Party filed cross-
exceptions and a brief in support of cross-excep-
tions and answering brief. The Respondent then
filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
i The Board directed that such findings should include a resolution of
whether the General Counsel had established majority status among the
meat department employees at the Chowchilla facility.
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In sec III,C,3, of his original decision the judge erroneously states that
the Board 's decision in Yaohan of California, 252 NLRB 309 (1980), and
Ashcraft's Market, 246 NLRB 471 (1979), "in part turned on the fact that
the employers operated their meat departments using employees who did
conclusions3 only to the extent consistent with this
Decision and Order.
The Respondent operates a chain of some 40
stores, approximately 20 of which are in the
"southern division." In November 1983, the Re-
spondent opened a new store in Chowchilla in the
southern division, The Chowchilla store, like the
Respondent's other stores, is divided into three de-
partments-grocery, produce, and meat . Each of
the three departments is headed by an in-store man-
ager . Three persons are employed in the meat de-
partment-the meat manager, Zimmer, and two
journeyman meatcutters, Sharp and Pool. All three
were transferred from other stores in the Respond-
ent's chain shortly before the Chowchilla store
opened. The Union has a contract, which covers
"all employees covered by this Agreement working
in the retail markets of the Employer in Fresno,
Tulare, Kings, Madera, Merced Counties and vicin-
ity under the jurisdiction of the United Food and
Commercial Workers Union, Butchers' Local 126."
Before the judge, the General Counsel advanced
two distinct theories for finding that the Respond-
ent acted unlawfully by refusing to recognize the
Union as representative of the Chowchilla meat de-
partment employees and refusing to apply the bar-
gaining agreement to them. The first theory was
that those employees constituted an accretion to an
existing multifacility unit of meat department em-
ployees. The second was that the same employees
had become part of the existing unit by operation
of a valid "after-acquired stores clause" in the par-
ties' bargaining agreement. In his original decision,
the judge found that the Chowchilla employees
were an accretion to the existing multifacility unit
and therefore concluded that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing
and refusing to recognize the Union as the exclu-
sive bargaining representative of meat department
employees employed by the Employer at its newly
opened Chowchilla, California store and by failing
and refusing to apply the existing collective-bar-
gaining agreement between itself and the Union to
the same employees. Because he found that the Re-
spondent violated the Act under the accretion
engage in the extensive cutting of meat traditionally undertaken by meat-
cutters " Rather , the Board ' s decisions in the two cited cases turned
partly on the fact that the meat department employees involved did not
engage in the extensive cutting of meat traditionally undertaken by meat-
cutters This error does not affect our decision
' The Charging Party has excepted to the judge's refusal to defer the
present case to arbitration We agree with the judge that deferral is inap-
propriate The arbitration proceeding involved a different facility and the
issues presented involve not only contract application and interpretation,
but also entirely separate representational questions of unit determination
and accretion , which are best resolved through the Board 's processes
Compare United Technologies Corp, 268 NLRB 557 (1984)
293 NLRB No. 135
SAVE MART OF MODESTO 1191
theory, the judge made no finding with respect to
the "after-acquired stores clause" theory.
Following our remand of the case, the judge
issued a supplemental decision in which he clarified
his earlier factual findings , but again found the
meat department employees to constitute an accre-
tion to the existing unit . Accordingly, in his supple-
mental decision the judge concluded that the Re-
spondent violated Section 8(a)(5) and (1) by failing
to recognize the Union as the representative of the
Chowchilla meat department employees. The judge
further considered whether the recognition clause
of the relevant collective-bargaining agreement
constituted a valid "after-acquired stores clause,"
which obligated the Respondent to recognize the
Union as the representative of its meat department
employees at its new Chowchilla store. The judge
found that the recognition clause was a valid after-
acquired stores clause, but that the Respondent was
not obligated to bargain with the Union at the
Chowchilla store based on that clause because the
Union failed to establish that it represented a ma-
jority of the Chowchilla meat department employ-
ees at the time it made its demand for recognition.4
Although we agree with the judge that no bargain-
ing obligation could have arisen pursuant to the
contract recognition clause,-5 we disagree with the
judge's conclusion that such an obligation arises
under an accretion theory. Accordingly, we shall
dismiss the complaint in its entirety.
As to the accretion issue, a new employee group
will be found to be accreted to an existing collec-
tive-bargaining unit, obligating the employer to
bargain with respect to the employees in the new
group without an election, if the new employee
group shares a sufficient community of interest
with the employees in the existing unit and if the
new employee group does not itself constitute a
separate bargaining unit.6 Thus, as the judge cor-
rectly pointed out, if the new group either may
stand as a separate appropriate unit or may appro-
priately belong to some unit other than the one
into which accretion is sought, the Board will not
find accretion.
In his original decision, the judge discussed the
structure and operation of the Respondent's super-
market chain in some detail. We emphasize here
those factors noted by the judge or established by
uncontroverted record evidence, which we regard
as essential to our determination of the accretion
issue.
4 See Kroger Co, 219 NLRB 388 (1975)
5 Because we agree with the judge that the Union did not provide the
Respondent with concrete evidence that a majority of the unit employees
desired representation , we find it unnecessary to determine whether the
parties' contract contained an after-acquired stores clause
6 See Melbet Jewelry Co, 180 NLRB 107 (1969).
The Chowchilla meat department employees do
not work in other areas of the store, nor do other
employees in the store work in the meat depart-
ment . However, all employees at the Chowchilla
store share common facilities; have identical bene-
fits and similar wages ; are subject to the overall di-
rection of the store manager ; have regular work
contacts with each other; wear similar uniforms;
and are subject to the same disciplinary and other
personnel procedures. The Chowchilla meatcutters
cut, wrap, and price various meat and related prod-
ucts and place them on shelves and in refrigerated
cases for sale. They do not cut sides or quarters of
meat, but slice "boxed" meat that has been cut into
"primal" or "subprimal" cuts before being deliv-
ered to the store. Although the cutting of "boxed
beef" and other pre-cut meats into pieces appropri-
ate for sale to consumers requires some specialized
skill and equipment, it does not require the sophisti-
cated butcher skills traditionally used by meatcut-
ters to cut sides or quarters of meat into "primals"
or "subprimals." Significantly, approximately 70
percent of the product sold by the meat depart-
ment arrives at the store cut and wrapped for sale
to the public and the Chowchilla meatcutters make
no cuts on these items at all. Chowchilla Meat
Manager Zimmer schedules the hours of work for
himself and the meatcutters. He may assign them
overtime and grant them time off. His other re-
sponsibilities include ordering meat and related
products as needed from the Respondent's central
warehouse; marking down the prices of items that
are nearly out of date; and generally seeing that
meat products are cut, wrapped, and displayed
properly. He participates in weekly management
meetings with the store manager and the grocery
and produce managers and takes part, with the
other managers, in regular inspections of the entire
store.
Chowchilla Store Manager Wall has interviewed
and either hired or effectively recommended the
hire of some new employees. However, he has not
performed this function with respect to meat de-
partment employees, all of whom were transferred
from other stores. Wall has responsibility for over-
seeing daily personnel and operational matters, in-
cluding employee discipline and store efficiency.
Regarding discipline, he has implemented the Re-
spondent's progressive discipline system. He also
has implemented his own addition to that system
whereby employees may be given a written warn-
ing which, unlike the written warnings provided
for in the Respondent's system, is not placed in the
employee's personnel file at corporate headquarters
but remains in the store's office. Meat department
employees are subject to both the corporate disci-
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pline system and Wall's addition to it, but none has
been disciplined since the store opened. Wall re-
solves employee complaints at the store level. He
has veto power, which he has exercised, over regu-
larly scheduled employee raises. Wall has regular,
but not daily, contact with corporate officials and
has effectively recommended an expansion in the
store's hours of operation. The Chowchilla store is
located about 15 miles from each of the two near-
est stores owned and operated by the Respondent,
one of which, like the Chowchilla store, is in the
Respondent's southern division, and the other of
which is in the northern division.
The Respondent's divisional structure mirrors
that of the individual stores, in that there are divi-
sional managers (called supervisors) with responsi-
bility for grocery, produce, and meat, respectively.
These corporate officials oversee operations in
their areas of responsibility for all stores in the di-
vision. The "meat supervisor" for the southern di-
vision, Levesque, regularly visits each of the ap-
proximately 20 stores in the division. The total dis-
tance involved in making a circuit of all the stores
is about 300 miles . In addition to store visits,
Levesque maintains telephone contact with the
stores on a regular basis. It was Levesque who
made the decision to transfer the three Chowchilla
meat department persons to that store.
The Respondent has centralized warehousing
and distribution, advertising, accounting, payroll,
and other functions. Store layout, including layout
of the meat area, is largely standardized and deter-
mined by corporate officials rather than by store
managers or in-store department managers. Wages
and benefits are standardized respectively for em-
ployees at represented stores and employees at un-
represented stores. Wages and benefits provided to
the employees at the unrepresented stores approxi-
mate those provided, pursuant to the bargaining
agreement, to the employees at the represented
stores.7 Personnel records are kept both in the indi-
vidual stores and in corporate offices. In some
cases, employees are hired by store managers,
while in other cases employees are hired by corpo-
rate officials. The Respondent has established pro-
cedures for both permanent and temporary transfer
of employees from one store to another. Several
employees have been transferred into or out of the
Chowchilla store since it opened. None of these
were meat department employees.
In concluding that the meat department employ-
ees were an accretion to the existing multifacility
unit, the judge, in his original decision, discredited
the Respondent's witnesses' substantially uncontro-
verted testimony regarding the extent of self-suffi-
ciency and self-supervision of the Chowchilla store.
Specifically, the judge discredited the testimony of
the Respondent's witnesses concerning the nature
and frequency of Division Meat Supervisor Leves-
que's contacts with the store. Even accepting these
credibility resolutions, we noted in our remand that
the judge failed to make specific affirmative find-
ings, in the absence of the discredited testimony,
concerning the day-to-day supervision of the meat
department. For example, while the judge may
have been correct in postulating that the Respond-
ent's witnesses' testimony to the effect that Leves-
que visited the Chowchilla store only "fortnightly"
was a shading of the facts, he made no alternative
finding as to how frequently Levesque did visit the
store. Accordingly, as noted above, we remanded
the case to the judge and directed him to make
specific findings of fact, and conclusions and rec-
ommendations in light of such findings, concerning
the day-to-day supervision of the meat department
at the Respondent's Chowchilla store.
In his supplemental decision, the judge found
that even crediting Levesque's testimony vis-a-vis
the amount of time he spent visiting stores in a
light most favorable to the Charging Party, "the
Chowchilla meat department would not receive an
amount of Levesque's time necessary to undermine
a finding that day-to-day supervision resided with
Chowchilla meat department manager Zimmer."8
The judge based his conclusion that accretion
nonetheless should be found on his determination
"that the store meat departments including Chow-
chilla, are closely supervised by and oriented to the
divisional meat supervisory structure rather than to
a store system of supervision." The judge found
that store supervision, "while day-to-day in a tem-
poral and geographical sense," was "substantially
lacking in extent and independence." Consequently,
he found that effective supervision resided with
Levesque at the divisional level.
The bases on which the judge rested his finding
that the Chowchilla meat department employees
shared a sufficient community of interest with the
meat department employees and could only appro-
priately belong to a unit consisting of employees in
the Respondent's other stores include the central-
ized control exercised by the Respondent over var-
ious functions of the individual stores, particularly
the meat departments, and the existence of proce-
dures for employee interchange among stores. al-
9 Although the judge concluded that Levesque was a "hands-on super-
visor" who kept control over the meat department, the judge found that
Levesque's visits, though perhaps more frequent than fortnightly, were
r For example , wage scales for employees in the same classifications in not sufficient to undermine the store manager's control of daily oper-
represented and unrepresented stores are identical ations
SAVE MART OF MODESTO 1193
though the Respondent does exercise centralized
control over the stores in many respects, it is
equally clear that store managers and the in-store
department heads who report to them have consid-
erable autonomy with respect to the day-to-day op-
erations of the stores. Thus, the record establishes
that the in-store supervisory staff at the Chowchilla
store have authority among other things to hire or
effectively recommend hire; discipline and dis-
charge employees; schedule regular hours and
overtime; grant time off; effectively recommend
employee raises; responsibly assign work within the
store; monitor store efficiency and employee pro-
ductivity; and resolve minor grievances and com-
plaints. Further, it is apparent, given the large
number of stores in the chain (or in the southern
division), the distances involved, and the relatively
few corporate personnel assigned to oversee oper-
ations, that it would be impracticable for the Re-
spondent to run the day-to-day operations of the
individual stores from its headquarters. In this
regard, we place more significance than did the
judge on his finding that the conclusion is inescap-
able that Levesque's visits, though perhaps more
frequent than fortnightly, were not sufficient to un-
dermine the store manager's control of daily oper-
ations. In addition, the record demonstrates that al-
though the Respondent has procedures for inter-
store employee interchange, these procedures have
seldom been utilized with respect to the Chow-
chilla store, and have not been utilized with respect
to meat department employees in that store except
for original staffing.
Moreover, the fact, relied on by the judge, that
the transferred employees made their requests to
transfer through Levesque is similarly unpersua-
sive. Regardless of the extent of a community of
interest among those employees and other employ-
ees either at the Chowchilla store or at the Re-
spondent's other stores, the handling of requests to
transfer among stores would seem to be a function
that could be carried out effectively only through
some type of centralized procedure because it obvi-
ously affects more than a single store. Regarding
the testimony of a meatcutter that Levesque was
his "supervisor," we note that Levesque's title was
"supervisor." (By contrast, the title of the in-store
head of the meat department was "manager.") It
therefore appears likely that when the employee re-
ferred to Levesque as his supervisor, he was
making reference to Levesque's title, rather than
commenting on whom he regarded as the person
with immediate authority over his work.
The judge further stated that in finding meat de-
partment employees to be an accretion to the exist-
ing meatcutters' unit, he was influenced by the
Board's decisions in Sol's, 272 NLRB 621 (1984),
and VI.M. Jeans, 271 NLRB 1408 (1984),"9 in
which the Board found single location retail units
to be inappropriate. We find Sol's and V LM, read-
ily distinguishable. First, and most importantly,
both cited cases involved a question of the appro-
priateness of a wall-to-wall unit. In the instant case,
by contrast, the issue is whether a multilocation
unit of employees engaged in a single function is
the only appropriate unit. Second, in both Sol's and
V.I.M. the Board found that the well-established
presumption of the appropriatness of a single facili-
ty unit was rebutted by factors including daily con-
tact between central office personnel and the retail
facilities. Moreover, Sol's and V.I.M. each involved
many fewer facilities and much shorter distances
between facilities than are involved in the present
case.
Finally, in finding that the Chowchilla meatcut-
ters lacked a sufficient community of interest with
other employees at the Chowchilla store to consti-
tute an appropriate unit with them, the judge noted
their specialized skills and higher pay, and attempt-
ed to distinguish cases such as Yaohan of California,
supra, and Ashcraft's Market, supra, in which the
Board found separate units of meatcutters in gro-
cery stores to be inappropriate. We note, however,
that in both Yaohan and Ashcraft's a key factor in
the Board's determination that the meatcutters
lacked a sufficiently separate community of interest
to constitute a separate bargaining unit was the fact
that they did not use the highly specialized skills
required traditionally of meatcutters, but instead
worked on "boxed" meat.1 ° As noted above, the
meatcutters involved here also do not use the tradi-
tional skills required to cut carcass meat. Indeed,
the Chowchilla store does not have the hooks and
other equipment required to perform that work.
There is no evidence that the Chowchilla meatcut-
ters use skills any more sophisticated than those
used by the meatcutting employees involved in
Yaohan and Ashcraft's.
Based on the above, we do not agree with the
judge that the only bargaining unit to which the
meatcutters employed at the Respondent's Chow-
chilla store may belong is the multifacility unit of
meat department employees. This is true both be-
cause the employees in question share a substantial
community of interest with the other employees in
the Chowchilla store and because the presumption
e The judge erroneously cited "V..1. Jeans as Nakash, Inc, a Subsidi-
ary of Famous Sports Inc d/b/a VIP Jeans, 271 NLRB No 23 (Aug 31,
1984) " The correct full title and citation is VIM Jeans, 271 NLRB 1408
(1984)
1s See also Great Day, Inc, 248 NLRB 527 (1980), Hall's Super Duper,
281 NLRB 1116 (1986)
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that a single location unit is appropriate has not
been rebutted. Thus, the record demonstrates that
the Chowchilla meatcutters do not use the skills
that traditionally justified separate craft unit
status, i i and do share common facilities, benefits,
supervision, disciplinary system, work contacts,
personnel policies and procedures, and other condi-
tions of employment with the other employees at
the Chowchilla store. The record also demonstrates
that despite the centralized nature of many of the
Respondent's functions, the day-to-day operations
of the store are largely under the control of the
store's' supervisory staff rather than corporate head-
quarters personnel, and that there is little inter-
change between the employees at the Chowchilla
store, particularly the meat department personnel,
and employees assigned to other stores operated by
the Respondent.12 We are not presented with the
question-and do not decide-precisely to which
unit or units the Chowchilla meat department em-
ployees may properly belong. Rather, in determin-
ing that they have not been accreted into the exist-
ing multilocation unit of meat department employ-
ees, we merely find that it is not the only appropri-
ate bargaining unit to which these employees may
belong. We find, accordingly, that no accretion has
occurred.
In sum, we find that the meat department em-
ployees at the Respondent's Chowchilla store did
not become part of the existing multifacility bar-
gaining unit of meat department employees either
by accretion or by operation of an after-acquired
stores clause.13 We therefore conclude that the Re-
spondent did not violate Section 8(a)(5) and (1) of
the Act by failing and refusing to recognize the
Union as bargaining representative of the Chow-
chilla employees or by failing and refusing to
extend the bargaining agreement to cover those
employees. 14
11 See, e g, Buehler's Food Markets, 232 NLRB 785 (1977), R-N
Market, 190 NLRB 292 (1971)
11 Compare, e g , Sol's, supra, in which the Board found only a multi-
location retail unit to be appropriate based , inter aha , on frequent em-
ployee interchange and daily contact between the central office and the
retail stores
13 In addition to its other contentions , noted above, the Charging
Party in its exceptions argues that the Respondent was obligated to bar-
gain with it as representative of the Chowchilla store meat department
employees because the opening of that store constituted a relocation of
the Respondent 's operations Contrary to the Charging Party's argument,
it is clear that the opening of the Chowchilla store was not a relocation
In this regard , we emphasize that although the Respondent transferred
meat department employees to the new Chowchilla facility from other
facilities, the transfer did not involve the shutdown of an existing meat
department and its reestablishment at the Chowchilla facility Cf Hahn
Motors, 283 NLRB 901 (1987), in which the Board found that a reloca-
tion of part of the bargaining unit occurred when the respondent in that
case shut down its service department and reestablished it at a facility 7
miles away
14 In view of our dismissal of the complaint , we find it unnecessary to
pass on the issues of whether Chowchilla Meat Department Manager
ORDER
The complaint is dismissed.
Zimmer was a supervisor within the meaning of Sec . 2(11) of the Act
and whether the Respondent 's in-store meat department managers (or
"head meat cutters" as they are referred to in other stores ) are properly
included in an appropriate bargaining unit.
We deny the Respondent's request for attorney 's fees as lacking in
merit.
Ariel Sotolongo, Esq., for the General Counsel.
Henry F. Telfeian, Esq. (McLaughlin & Irvin), of San
Francisco, California, for the Respondent.
David A. Rosenfeld, Esq. (Van Bourg, Allen, Weinberg &
Roger), of San Francisco, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on July 24-26, 1984, in Fresno,
California, pursuant to a complaint and notice of hearing
issued by the Regional Director for Region 32 of the Na-
tional Labor Relations Board on March 30, 1984, based
on a charge filed by United Food and Commercial
Workers Union, Butchers Local 126, AFL-CIO (the
Charging Party or the Union) against Save Mart of Mo-
desto, Inc. (Respondent or the Employer) on March 15,
1984.
The complaint alleges that Respondent at all times
since November 1983 has been obligated to recognize
and bargain with the Charging Party as representative of
certain employees at Respondent's Chowchilla store and
to apply an existing collective-bargaining agreement to
that store and further alleges that Respondent's refusal to
do so constitutes a violation of Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act). The answer
admits that Respondent has refused to recognize and bar-
gain with the Charging Party as representative of its
Chowchilla employees but avers that Respondent has at
no time been under an obligation to recognize the Union
and therefore has not in any way violated the Act.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
amine, and cross-examine witnesses, to argue orally, and
to file posthearing briefs.
On the entire record,' including scholarly postheanng
briefs from the General Counsel, Respondent, and the
Charging Party, and from my observation of the wit-
nesses and their demeanor, I make the following
1 On December 14, 1984, the Union filed a motion to defer to arbitra-
tion and/or to supplement the record The motion to defer is denied inas-
much as the unit issues here are for Board determination I shall receive
the December 6, 1984 decision of Arbitrator Letter into the record con-
sistent with my rulings at the hearing concerning the limited use of such
evidence
SAVE MART OF MODESTO 1195
FINDINGS OF FACT
1. JURISDICTION
At all material times Respondent has been a California
corporation with its main office and place of business in
Modesto, California. It is engaged in the operation of a
chain of retail markets in the central California area. In
the course and conduct of its business operations Re-
spondent has annually sold and provided services valued
in excess of $500,000 and has purchased and received
goods and services valued in excess of $5000 that origi-
nated outside the State of California.
At all times material , Food Employers Council, Inc.
(the Association) has been an organization consisting of
employers engaged in the operation of retail supermar-
kets, existing for the purpose, inter alia , of representing
its employer-members in negotiating and administering
collective-bargaining agreements with the Charging
Party. At all times material, Respondent has been an em-
ployer-member of the Association and has authorized the
Association to bargain collectively on its behalf with the
Charging Party concerning wages , hours, and other
terms and conditions of certain of its employees.
these stores were part of a contractual single multiem-
ployer meatcutters unit between the Union and the Asso-
ciation.4
The current collective-bargaining agreement between
the Association and the Charging Party is in effect by its
terms from January 13, 1983, into 1986. The current con-
tract , and all previous collective -bargaining agreements
between the parties entending back at least into the
1950's , contains the following language:
Article II
A. Union Recognition
Section (a) The Employer recognizes the Union
as the exclusive bargaining agent for all employees
covered by this Agreement working in the retail
markets of the Employer in Fresno, Tulare, Kings,
Madera, Merced Counties and vicinity under the ju-
risdiction of the United Food and Commercial
Workers Union, Butchers' Local 126.5
The current contract also contains the following lan-
guage:
II. LABOR ORGANIZATION
The Charging Party is now, and has been at all times
material, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A, Background and Simple Chronology
1. Respondent's operations
Respondent opeates a chain of grocery stores or super-
markets in the Central Valley of California. Starting
from a single store many years ago, Respondent's chain
grew by both the acquisition of existing grocery stores
and by the opening of new stores. The Charging Party
has for many years represented meatcutters and butcher
workmen in the Central Valley. It has had a longstand-
ing collective-bargaining relationship with Respondent.
The Charging Party represented the meatcutters and
butcher workmen at Respondent's original store. There-
after, as Respondent acquired or opened new stores
within the Charging Party's jurisdictional area, the then
current collective-bargaining agreement was automatical-
ly applied to the new or acquired facility without request
or discussion.2 Thus, over the years through early 1983,
Respondent had without exception recognized the
Charging Party as representative of its meatcutter em-
ployees within the Union's territorial jurisdiction.3 All
2 The previous owners of the acquired stores in each case had previ-
ously recognized the Charging Party as representative of their meatcutter
employees With respect to those acquired stores Respondent generally
retained a majority of the former employer's meatcutter employees. In
staffing new stores Respondent, although not without exception, trans-
ferred meatcutter employees from other represented stores into new fa-
cilities of sufficient number to constitute a majority of the meatcutter
complement at each new store
S The Union-Association agreements cover approximately 70 to 80 fa-
cilities
Article XII
Section (i) An employee who wishes to be trans-
ferred to store locations near his or her home shall
so notify the Company in writing indicating the
particular area and store in question. When perma-
nent vacancies arise in that store for which the em-
ployee is qualified, the Employer will give full con-
sideration to transferring him or her before filling
the vacancy. If his or her transfer takes him or her
across local union jurisdictional lines, his or her se-
niority rights shall be set forth in Article XIV(g).
Once a person has effected his transfer pursuant to
this paragraph, future request will not be honored
for a two (2) year period.
Respondent's grocery stores are organized into two di-
visions. The northern division includes those facilities lo-
cated approximately north of the community of Chow-
chilla, California, and the southern division, which in-
cludes the Chowchilla facility (sometimes the store), con-
tains approximately 20 stores.6 In addition to higher
management positions, each division is supervised by a
divisional supervisor for each of the three general prod-
uct areas: meat, produce, and grocery. The southern di-
vision meat department supervisor at relevant time was
Earl F. Levesque.
As a general proposition Respondent, like retail chain
store operations, has centralized control of many func-
tions, maintains uniform personnel policies, and controls
4 In 1983 the Chowchilla facility, the only facility in dispute in the in-
stant case , and the Hanford , Exeter, and Lindsay stores were opened In
each of these facilities the issue of Respondent's obligation to recognize
the Union is in dispute
5 The unit description plead in the complaint and admitted in the
answer converts this adoptive language to normal Board unit description
parlance
6 The southern division stores employ approximately 60 employees
covered by the Union -Association agreement
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
administrative matters either on a corporate or a divi-
sional basis. Respondent also seeks to maintain a general
uniformity of operations at its various facilities.'
Each individual store is headed by a store manager,
also referred to as a store director. The Chowchilla store
manager is Ricky Wall. Under the store manager are
store department managers in the three product areas:
produce, meat," and grocery. These store department
managers have certain reporting responsibilities to both
their store manager and to their respective divisional su-
pervisors.
The Chowchilla store, in addition to the store manager
and store department managers , employs 2 employees in
the produce department, 2 employees in the meat depart-
ment, and approximately 20 employees in the grocery
department. The meat department manager, from the in-
ception of the store's operations in 1983 to the time of
the hearing, was Matthew Zimmer, who had previously
been a head meatcutter. The two other employees in the
meat department were, like Zimmer, experienced jour-
neyman meatcutters, transferred to the store from other
of Respondent's facilities. They are Michael Sharp and
Perry Pool.
Insofar as the record reflects the Chowchilla facility is
essentially identical in its organizational structure and su-
pervisorial responsibilities to Respondent's other facilities
including those covered by the Association-Union collec-
tive-bargaining agreement. Thus, uncontradicted testimo-
ny was received that the duties and responsibilities of
head meatcutters in the represented facilities are identical
to the duties and responsibilities of the meat department
supervisor at the Chowchilla facility. The wages at the
Chowchilla facility are identical to those in the repre-
sented facilities save for a "rounding off" of rates to the
nearest penny. Although employees at the Chowchilla
facility do not receive contractual fringe benefits, they
receive not dissimilar Respondent-selected fringe bene-
fits
The Chowchilla store is located between two other
stores, one in Madera and one in Merced, each approxi-
mately 15 miles distant.
The recognized facilities' meat department employees
have areawide seniority. This seniority system has his-
torically produced substantial employee transfer between
and among the represented facilities. Respondent also
maintains a staff of "floating" meatcutter employees who
are assigned to various facilities for brief periods as nec-
essary to meet changing staffing needs. The assignment
of such "floaters" as well as the determination or ap-
proval of interstore transfers is determined by the divi-
sion meat supervisor or his immediate divisional staff.
2. Simple chronology
The Chowchilla facility opened to the public on No-
vember 30, 1983. On the day before the Union by wire
demanded that Respondent recognize it and apply the
then current bargaining agreement to the Chowchilla
store "in the same manner that the Union demanded that
it be applied to the Hanford and Exeter stores." Re-
spondent rejected the Union's demand for recognition.
On February 27 and March 28, 1984, Respondent filed
unit clarification petitions with Region 32 of the National
Labor Relations Board.9 The unit clarification petitions
filed by Respondent sought to clarify the contractual
unit of "all employees employed in the meat department
of the Company's retail markets in merced, Madera,
Fresno, Kings, Tulare Counties" into a proposed unit of
"employees working in the meat department of the Com-
pany's retail market in Chowchilla, California." On April
24, 1984, the Regional Director dismissed Respondent's
unit clarification petition, Case 32-UC-115, by letter that
stated in part:
Following and [sic] administrative investigation
of the above-captioned petition, I have concluded
that further proceedings are not warranted at this
time. The investigation revealed that since approxi-
mately November 1983, a majority of the unit em-
ployees at the Employer's Chowchilla facility have
designated United Food and Commercial Workers
Union, Local 126 as their collective-bargaining rep-
resentative. Further, it appears that even though
Local 126 made a lawful demand for recognition,
pursuant to its labor agreement with the Employer,
the Employer has failed and refused to do so in vio-
lation of Sections 8(a)(1) and (5) of the National
Labor Relations Act. This action is subject to the
complaint issued by the undersigned in Case 32-
CA-6355.
Since the unit determination issue that is the sub-
ject of the instant petition is also encompassed by
the pending unfair labor practice proceeding now
set for hearing before an Administrative Law
Judge, further proceedings in this matter are inap-
propriate and I am, therefore, dismissing the peti-
tion. However, it should be noted that such action
is without prejudice to the Employer's position,
since there is no time bar to the following unit clari-
fication petition and the Employer may refile this
petition at any time subsequent to the issuance of
the Board's decision in the pending unfair labor
practice case, if warranted.
Respondent did not appeal the Regional Director's dis-
missal in Case 32-UC-115.10
B. Position of the Parties
The primary arguments made in the instant case may
be divided into three categories . First are the threshold
unit questions concerning the identification of the appro-
priate bargaining unit or units in which the meat depart-
Indeed, even the physical layout of the stores is to a greater or lesser
degree standardized Thus, for example , the Chowchilla meat department
shelving and product placement conform to Respondent 's standard model
for Respondent 's meat departments
8 In represented stores the title of the chief meat department employee
is "head meatcutter "
8 Confusion regarding the initial petition, Case 32-UC-115
10 This failure to seek review of the Regional Director 's dismissal ren-
ders that decision final in my view Given the result , I reject the conten-
tion advanced by Respondent that the filing of the UC petition recludes
me from considering either the accrettion issue in the instant case or the
contention that Respondent violated Sec 8(a)(5) of the Act by withhold-
ing recognition from the Union
SAVE MART OF MODESTO 1197
ment employees at the Chowchilla facility may be prop-
erly placed. The second general topic concerns the legal
meaning and effect of the contract language in the par-
ties' contract at article II, quoted supra, under the
Board's "additional store clause" analysis. The third and
final topic deals with the circumstances and significance
of the actions of the three meat department employees
transferred to the Chowchilla facility and whether a ma-
jority or the unit employees may be held to have desired
union representation at the Chowchilla facility at appro-
priate times.
1. Topic one-the unit issues
The representation unit question here has several possi-
ble answers, each of which significantly affects the re-
mainder of the case. The meatcutter employees at the
Chowchilla facility ti could theoretically: (1) stand alone
as an independent bargaining unit, (2) be part of an all-
employee single store unit, (3) be part of a multistore
unit, or (4) be properly placed in more than one of the
above. The Union strenuously advances the position that
the Chowchilla meat department employees may only be
part of a single, overall, multifacility unit of meatcutter
employees. In the alternative, the Union and the General
Counsel argue that the Chowchilla meat department em-
ployees could either be part of the multifacility unit de-
scribed immediately above or could stand independently
as a single facility meat department unit . 12 The Employ-
er argues equally strenuously that the meat department
employees at the Chowchilla facility are appropriately
part of a single all-employee store unit, i.e., one consist-
ing of all employees at the facility or, in the alternative,
comprise a single facility meatcutter unit.
The implications of the differing resolutions of the rep-
resentation question are several. First, assuming the
Union is correct and the Chowchilla meat department
employees may be part of no unit other than the multifa-
cility meatcutter unit, then the Chowchilla meat depart-
ment employees automatically accrete into the larger
unit by operation or law and the Employer is obligated
to recognize the Chowchilla meat department employees
as part of the overall unit under the contract without any
need to consider the Chowchilla meat department em-
ployees' wishes with respect to union representation. In
the event, as argued by the Employer, the meatcutter
employees at the Chowchilla facility are properly only in
a single store all-employee unit , i.e., with the grocery
and produce employees, then Respondent is in no way
' The supervisory status of the Chowchilla store meat department su-
pervisor was in dispute at the hearing and his unit placement is also in
contention
12 The Union also argues that , because the Chowchilla store is located
between two older stores and because the Chowchilla meat department
was staffed by employees from other stores , the opening of the Chow-
chilla store should be likened to the relocation of an existing represented
unit Without commenting on the evolving state of the law in relocation
cases, I simply do not find the Charging Party's analogy here apt and I
decline to apply the relocation doctrine to the instant case Simply put,
the opening of a new store where other remain open and in place, and
where staff is transferred from various of the existing stores rather than
from a particular store, does not constitute a relocation The Charging
Party's argument that Respondent is obligated to bargain with the Union
regarding Chowchilla as if it were a relocated facility is therefore reject-
ed Cf Rice Food Markets, 255 NLRB 884 (1981)
now obligated to recognize the Union as representative
of the meatcutter employees.
Should the Chowchilla meat department employees, ir-
respective of what other unit(s) they might appropriately
be included in, also stand as an appropriate, separate, and
independent unit, then the remaining two legal topics
discussed infra come into play. More specifically, if and
only if the meatcutter employees at the Chowchilla facil-
ity may constitute an independent unit does the legal
effect of the quoted contractual language remain in issue.
And, further, only if that language is held to be an "addi-
tional store clause" as discussed infra, does the third
topic arise.
2. Topic two-the additional or after-acquired store
clause issue
The Board since Kroger Co., 219 NLRB 388 (1975),
has held that an employer and a union may enter into an
agreement whereby the employer agrees to recognize the
union as representative of its employees in acquired
stores provided the union tenders an appropriate show-
ing of majority representation in the new stores. The
Board has held that such an agreement must constitute a
clear and unmistakable waiver of the employer's right,
normally extant, to obtain a Board election when faced
with a union's demand for initial recognition. The Union
in the instant case asserts that the contractual provision
quoted supra, represent such a clause. Respondent argues
that the instant contractual language differs from the lan-
guage of after-acquired store clauses in all previous
Board cases. Respondent argues it is, at best, ambiguous,
and, therefore, does not constitute a clear and unmistak-
able waiver of either Respondent's right to insist on an
election or its right to bargain with the Union over the
means of union demonstration of employee support.
Again, the Union must prevail in this second argument
to bring the third topic, the issue of employee sentiments,
into relevance. If the quoted language does not consti-
tute a valid after-acquired store clause, then it is immate-
rial whether employees at the facility favored or did not
favor the Union and how such employee support be
manifested. Thus, only if the Union and the General
Counsel prevail in this second argument does the third
issue, the question of employee sentiments, ripen.
3. Topic three-the majority issue
This final area of argument concerns whether on the
facts of the instant case, the employees in the meat de-
partment of the Chowchilla facility may be held to have
manifested either in fact or by operation of law a desire
for union representation sufficient to create a binding ob-
ligation on the Employer to recognize the Union under
the terms of a valid after-acquired store clause. The Gen-
eral Counsel and the Union make two contentions in this
respect. First, the Union argues that the fact that Re-
spondent was contractually bound to transfer employees
into new facilities from recognized facilities at a time
when a union-security clause was in effect covering
those unit employees and the fact that the three trans-
ferred employees at Chowchilla were union members
makes it unnecessary to inquire further into those em-
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees' sentiments concerning union representation. Re-
spondent disputes this contention and argues that the
actual expressions of employee sentiments by Chowchilla
staff as testified to by the employees themselves should
be considered in evaluating whether a majority of the
Chowchilla meat department employees desired union
representation . Respondent contends that the record
demonstrates that the employees did not want the Union
to represent the meat department of the Chowchilla
store . The General Counsel and the Union argue that the
record evidence of employee sentiments , considered in
light of Employer 's wrongful conduct , makes it clear,
that the employees must be held to have desired union
representation at all appropriate times.
C. The Unit Question
1. Accretion law
An employer's acquisition or construction of an addi-
tional facility where the existing facilities are represented
often gives rise to the litigation of the issue of accretion
in Board cases . 13 If the employees at the new facility are
found to be an accretion to the existing bargaining unit,
the employees in the new facility are subsumed into the
existing unit without a separate test of their sentiments
with respect to union representation.14 Where more than
one unit placement is possible for the new employees,
such as where the employees at the new facility could
constitute either an independent unit or be part of the
larger whole , the Board has long been cautious in finding
an accretion . This is so because such a determination
forecloses any independent expression of the sentiments
of the employees in the new facility. Kinney National
Maintenance Services, 177 NLRB 379 (1969 ). Sunset
House, 167 NLRB 870 (1967). Pix Mfg. Co., 181 NLRB
88 (1970). This caution has evolved in a direct refusal to
accrete in two unit situations . In Melbet Jewerly Co., 180
NLRB 107 , 110 (1969). The Board said:
Under certain circumstances , we might have found
an overall unit appropriate , and thereupon given all
the employees in the three stores an equal voice in
determining their bargaining representative . We will
not, however , under the guise of accretion, compel
a group of employees who may constitute a sepa-
rate appropriate unit , to be included in an overall
unit without allowing those employees the opportu-
nity to express their preference in a secret election
or by some other evidence that they wish to author-
ize the Union to represent them.
Thus, whereas the Board in pre-Melbet situations looked
to the various possible units with a reluctance to find ac-
cretion , the Board , in Melbet and thereafter , specifically
refuses to find an accretion unless the group of employ-
ees at issue may not exist as an independent unit apart
from the larger unit applying normal Board representa-
13 See Great Altantic & Pacific Tea Co, 140 NLRB 1011 (1963), for ex-
tensive analysis of the early accretion case
14 The additional employees must be fewer than the existing represent-
ed employees, as is the case here , where a single new store is posited as
tion standards . Thus, for an accretion to exist in the in-
stant case , the meatcutter employees at Respondent's
Chowchilla facility must not be a possible part of any ap-
propriate unit other than the multifacility meatcutter unit
covered by the contract. The Board said in Ringsby
Truck lines, 211 NLRB 280, 282 (1974):
In determining whether a new group of employ-
ees constitutes an accretion to an existing contrac-
tual unit , the Board has traditionally looked to fac-
tors indicative of whether the new employees could
constitute an appropriate unit by themselves, or
could only be properly represented in the contrac-
tual unit.. . .
The factors to be considered in resolving accretion
issues have been stated by the Board on numerous occa-
sions . In Bryan Infants Wear Co., 235 NLRB 1305, 1306
(1978), the Board chose to restate the earlier standard set
forth in Peter Kiewit Sons ' Co., 231 NLRB 76, 77 (1977):
Where, as here , we are concerned with more than
one operation of the single employer , the following
factors are particularly relevant ; the bargaining his-
tory; the functional integration of operations; the
differences in the types of work and skills of em-
ployees ; the extent of centralization of management
and supervision , particularly in regard to labor rela-
tions , hiring discipline , and control of day -to-day
operations; and in the extent of interchange and
contact between the groups of employees.
Morris 15 summarizing Board law sets forth the follow-
ing guidelines for accretion determination:
The guideline encompass the presence or absence of
a variety of factors such as: (1) the degree of inter-
change among the employees, (2) geographical
proximity, (3) integration of operations, (4) integra-
tion of machinery and product lines, (5) centralized
administrative control, (6) similarity of working
conditions, skills, and functions, (7) common control
over labor relations, (8) collective bargaining histo-
ry and (9) the number of employees at the facility
to be acquired as compared with the existing oper-
ation.
Respondent does not dispute and on brief concedes
that as an operator of a chain of retail grocery stores,
Respondent exercises centralized administrative control
over personnel policies and administrative functions of its
stores, including its meat departments, but argues that
such centralized control is characteristic of the retail
chain store industry and has been recognized by the
Board as of lesser significance in accretion determina-
tions than consideration of the autonomy of local super-
vision over employees in their day -to-day work , citing,
inter alia , Meyer's Thrifty Acres, 222 NLRB 18 (1976);
Renzetti 's Market, 238 NLRB 174 (1978); Save-It Discount
Foods, 263 NLRB 689 ( 1982); and Towne Ford Sales, 270
an accretion to an existing unit composed of a large number of stores 1 5 C Morns, Developing Labor Law , 369 (2d ed 1983)
SAVE MART OF MODESTO
NLRB (1984), affd. sub nom. Machinists Local 1414 v.
NLRB, 759 F.2d 1477 (9th Cir. 1985).
The Union argues on brief at 6-7:
Although we recognize traditional Board law rec-
ognizes a presumption of the appropriateness of a
separate unit in a free -standing store , recent Board
decisions have substantially undermined that propo-
sition . That is, the Board recently determined in a
number of circumstances that such entities are not
appropriate bargaining units. This is far cry from
prior Board decisions which have recognized that
such entities may be appropriate units and that an
overall unit consisting of several stores or locations
may also be an appropriate unit. See Dayton Trans-
port Corp., 270 NLRB No. 167 (1984); Genuine Parts
Company, 269 NLRB No. 178 (1984); Point Pleasant
Foodland, 269 NLRB No. 69 (1984); Mini-Skool
Ltd., 268 NLRB No. 16 (October 27, 1983).
Given the guidance of Board cases and the positions of
the parties, it is appropriate to turn to the specific evi-
dence concerning Respondent's operations.
2. Day-to-day operations in Respondent's meat
departments
It is clear that the meat departments in the stores cov-
ered by the collective-bargaining agreement between Re-
spondent and the Union are significantly integrated and
centrally controlled. In addition to the centralized poli-
cies discussed supra, the collective- bargaining agreement
provides a multifacility seniority system that, in oper-
ation , results in subtantial transfers by meatcutter unit
employees between and among the facilities. Transfer re-
quests initiated by unit personnel, including "head meat-
cutters," are also contractually regulated. Requests for
transfers are made to and granted by the divisional meat
supervisor. Respondent also maintains a staff of "float-
ing" unit employees who are assigned on short notice to
various facilities on a temporary basis. The assignment
and scheduling of floaters to a particular meat depart-
ment are also undertaken by the division meat supervisor
or his staff. Meat departments are very similar between
stores with staffing, layout duties, etc. established by cen-
tral administration. Ordering is primarily from Respond-
ent-owned warehouses, although product is occasionally
exchanged between stores. The Chowchilla store person-
nel have the same titles and duties as employees in Re-
spondent's other facilities with the exception that the
"head meatcutter" in other facilities bears the title "meat
department supervisor" in Chowchilla. There is no dis-
pute that the Chowchilla meat department supervisor has
the same duties and responsiblities of the head meatcut-
ters at Respondent's organized facilities.
The record makes it clear that the Chowchilla store
manager , presumably as other store managers in the
chain, is a statutory supervisor with the power to effec-
tively recommend discharge of employees in the store,
including meat department employees, and who has
clear, if limited, discretion in control of the store within
the perimeters established by central management. It is
also clear however that the meat department, at least at
1199
the Chowchilla store, is less subject to the supervision
and control of the store manager than the grocery and
produce departments. Thus, for example, the Chowchilla
store manager was a participant in the hiring process for
both grocery and produce employees but had no role in
the selection of either the meat department supervisor of
the two meatcutter employees who were initially trans-
ferred to the facility from other stores. Indeed, Store
Manager Wall testified that Divisional Meat Supervisor
Levesque "Keeps control over the meat department."
Chowchilla Meat Department Supervisor Zimmer par-
ticipates with the store manager and the grocery and
produce supervisors in management meetings , schedules
employees in this department and, while not exercised
during his tenure as a meat department supervisor or
former head meatcutter , has the authority to effectively
recommend the discharge of meat department employees
and to initiate discipline consistent with personnel guide-
lines. 16
The Chowchilla store employees, including the meat
department employees, have the same skills and perform
the same functions as employees of other facilities. As
noted previously, their wage rates and fringe benefits are
equivalent; products, store layout, and personnel policies
are standard; and all the meat department employees
have substantial experience in the meat departments of
other facilities of Respondent.
I have found that the meat departments in the repre-
sented stores functioned under the close direction of the
divisional meat supervisor and it is clear that all person-
nel transferred to the Chowchilla store were familiar
with and accustomed to that tradition of close control at
the time of their transfer. Considering the testimony de-
16 Under the longstanding Board doctrine that the statutory definition
of a supervisor in Sec 2(11) of the Act is to be interpreted in the disjunc-
tive and that "the possession of any one of the authorities listed in [that
section] places the employee invested with this authority in the supervi-
sor class," Ohio Power Co. v. NLRB, 176 F 2d 385, 387 (6th Cir. 1949),
cert denied 338 U S 899 (1950), it is clear and I find that Zimmer during
his employment as the Chowchilla store meat department supervisor is a
supervisor within the meaning of the Act That is not to say however
that I find he bears all the indicia of supervisory authority that Sec 2(11)
of the Act recites, nor that, as a supervisor of the meat department, his
direction, control, and supervision are substantial in conjunction in my
evalution of their demeanor, that, although each was attempting to avoid
overtly misstating the facts, each was also inclined to shade or shape his
testimony in a way he believed favorable to Respondent's case Thus, for
example, there was apparently uncontradicted testimony from Zimmer
and Levesque that Levesque as divisional meat supervisor visited the
Chowchilla facility no more frequently than fortnightly spending no
more than an hour on each visit Under cross-examination however,
Levesque testified that he spends 90 percent of his time 5 to 6 days a
week "on the road visiting stores " Given that the division has but a
score or fewer stores , it is apparent that there is an inconsistency in the
testimony concerning the extent of direction and supervision Levesque
undertakes with respect to each store meat department The meatcutter at
the Chowchilla facility each testified that poor to their transfer to that
facility they reported to management certain conversations they had had
with a union business agent Both Wayne and Pool testified that they re-
ported these conversations not to their store manager or to the head
meatcutter at their store, but rather directly to Levesque Each also testi-
fied to having made an oral request to be transferred to the Chowchilla
facility These requests were made directly to Levesque rather than to
their store manager or the head meatcutter at the facility where the em-
ployees worked Indeed, Pool was asked by counsel for Respondent
"Who did you make the request to?" Pool answered, "To my supervisor
Earl Levesque "
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scribed above, and the record as a whole, I am con-
vinced and find that the meat department at Chowchilla
had significant autonomy or independence from the su-
pervison of the store manager . I further find that the
Chowchilla store meat department staff, both the jour-
neymen meatcutter employees and the store meat depart-
ment supervisor looked to Levesque, i.e., the divisional
management , for supervision in matters concerning the
meat department generally. Although I have found
Zimmer to be a statutory supervisor on the basis noted
above, I find that the general control over the meat de-
partment at the Chowchilla store, like the meat depart-
ments in the organized stores, to be more divisional than
local and, discrediting the testimony of Zimmer and
Levesque to the contrary, find that as divisional meat su-
pervisor, Levesque had an active role in the supervision
of the meat department at the Chowchilla store. I also
find the orientation of the Chowchilla and other meat
department employees was not to the single store but
rather was directed to the divisional unit.
The Chowchilla store has experienced but one perma-
nent interstore employee transfer that did not involve the
meat department. The meat department, eligible for the
assignment of floating meatcutter employees , has not had
occasion to use such staff and has experienced only one
instance of a temporary transfer following the opening of
the store. This may be explained by the fact that both
the meat department supervisor and the two other em-
ployees in the Chowchilla meat department are experi-
enced journeymen meatcutters. Other stores employ ap-
prentice meatcutter and/or meat wrappers, employees
with substantially different duties and skills, who are thus
not able to substitute or act for journeyman meatcutters.
The three Chowchilla meat department employees given
their high degree of skill and experience freely substitute
for one another during vacations, sickness, or other
emergencies making transfers less necessary.
3. Conclusion
Considering the factors described in the Broad cases
cited above, the record as a whole and, importantly, my
evaluation of the demeanor of the witnesses, I find that
the Chowchilla meat department may not stand alone as
a separate bargaining unit under Board standards but
rather must be considered as a part of and hence an ac-
cretion to the existing multifacility unit represented by
the Union. There is no dispute regarding the close simi-
larity of stores, the central control of policies, and the
clear single unit status of the represented meat depart-
ments. Turning to the Chowchilla store with its similiar
products, layout, staff duties, wages, and other working
conditions, I find little reason to treat Chowchilla differ-
ently from the other unified meat departments. I specifi-
cally reject the contention that the Chowchilla meat de-
partment employees experience significant store level su-
pervision, rather I find the supervision, in fact, to be di-
visional. I make this latter finding in large part on credi-
bility grounds, but I am unable to accept the testimony
of Respondent's witnesses to the degree of self-sufficien-
cy and self-supervision at the store level in Chowchilla
as compared and contrasted to the divisional supervision
of Southern Division Meat Supervisor Levesque.
Applying these findings to the cases I am influenced
by the Board's very recent decisions V. I. M. Jeans, 271
NLRB 1408 (1984), and Sol's, 272 NLRB (1984). In
V.I.M. Jeans, as illuminated by the factual discussion in
the dissent of Member Zimmerman, the Board found the
active participation of higher management in the supervi-
sion and control of various retail facilities constituted a
circimscription of the store manager's authority. In such
a setting the Board specifically found the presumption
ofthe appropriateness of a single store unit rebutted.
V.I.M. Jeans, and the detailed and helpful discussion of
numerous recent cases cited therein, points out in the
context of highly centralized administration the fact that
substantial employee interchange is lacking "fails in its
importance to the determination of the issue," supra. In
Sol's, the Board found a single facility of a multifacility
operation could not stand alone but must be a necessary
part of an overall unit where local store control was (1)
limited to routine matters such as recommending a par-
ticular wage within a centralized, specialized wage
range, (2) where store managers could decide who to be
selected for layoff, if layoffs were necessary, and (3)
where local management initially handled employee dis-
cipline and grievances.
In reaching this conclusion, I specifically find the
meatcutters are not properly part of an all-employee unit,
i.e., should not be included with grocery and produce
employees. Some recent Board cases have placed meat
department employees in all-employee store units. See,
e.g., Yaohan of California, Inc., 252 NLRB 309 (1980);
Ashcrafts Market, 246 NLRB 471 (1979). Those decisions
in part turned on the fact that the employee operated
their meat departments using employees who did engage
in the extensive cutting of meat traditionally undertaken
by meatcutters. Reference was made to the recent utiliza-
tion of " boxed meat" is different from the more tradi-
tional carcass product that is sent to the retail facilities
and there cut into smaller parts by the traditional meat-
cutter. It is clear that the new "boxed" technology does
not in and of itself eliminate the appropriateness of meat-
cutter units. In NLRB v. Super-Discount, 744 F.2d 735,
738 at fn. 2 (10th Cir. 1984), enfg. 261 NLRB 995 (1982),
the court stated:
Foodland argues that the meat department employ-
ees in the Owasso store do not exercise special
butchery skills which have traditionally differentiat-
ed meat department employees from grocery em-
ployees in NLRB decisions. As support for this
stand, the Company points out that the meat depart-
ment operates on a "boxed beef' system, whereby
the meat arrives at the store packaged in "primal
cuts." The meat department employees then cut and
process the meat from this "boxed" stage rather
than from the more traditional "carcass" stage. Re-
lying on Great Day, Inc., 248 NLRB 527 (1980), the
Company contends that because specialized skills
are no longer required, the Board should have in-
cluded the meat department employees in the same
bargaining unit as the other employees We do not
agree. The evidence shows that the meat depart-
ment employees must still spend most of their time
SAVE MART OF MODESTO 1201
cutting, processing and wrapping the meat-func-
tions which require special skills. We agree with the
Board that this practice distinguishes Great Day
where the meat department employees in that case
spent several seventy-five percent of their time un-
loading trucks, unpacking cases of meat products,
stocking display cases, etc.
Further, in Ashcrafts Market, supra, the Board specially
found that the meatcutter employees there included in an
overall unit did not possess traditional meatcutter skills,
that the employer in that case did not have an appren-
ticeship program, and that the meatcutter employees did
not have a separate community of interest. In the instant
case, the meatcutters have traditional skills, are the high-
est paid nonsupervisory employees at the facility, and
have the separate supervision discussed supra. On this
record I have no difficulty finding the meatcutter em-
ployees constitute a separate identifiable unit from gro-
cery and produce employees with a clearly separate and
distinct community of interest.
I have made the above finding fully cognizant of the
reluctance of the Board to find accretions and further
aware of the presumption of appropriateness of single fa-
cility units. 17 I conclude that a finding of accretion is
mandatory on this record where the meat department at
the Chowchilla store, in light of the factors and findings
made supra, cannot stand as an independent unit of em-
ployees.
Although not necessary to the result, I am further per-
suaded of the correctness of my finding by considering
the increased stability of labor relations that will result
from this result. It seems anomalous that a chain of retail-
stores with essentially identical meat departments should
be found to consist of two units: a multifacility unit and a
single store unit at the Chowchilla facility. No other
union is involved in this proceeding and only the Union
is interested in representing Respondent's meat depart-
ment employees. Thus, if the Chowchilla employees are
represented by the Union, there will be one very large
unit and one small unit among Respondent's stores. Fur-
ther, it seems reasonable, that given the similarity of the
various facilities, the Employer should not experience
disruption of its labor relations by having one single
overall meatcutter unit rather than two units, with the
difficulties that lack of uniformity could produce In
summary then, in addition to the analysis supra, that
leads me to the conclusion that the unit here must be
multifacility, I find no larger policy reasons that support
a contrary conclusion.
D. Consequences
Having found that the meatcutter employees at the
Chowchilla facility are accredited into the unit covered
by the current collective-bargaining agreement between
17 Although not a basis for my decision here, the presumption of the
appropriateness of a single store unit is in my view less compelling where
the unit issue involved is not whether all employees in the facility stand
together in a single unit , but rather where the question is whether a rela-
tively small number of employees with a separate and distinct community
of interest from other store employees will either stand alone or with
other specialized employees in other stores
Respondent and the Union, it follows, by virtue of that
fact, Respondent was obligated to recognize the Union
and apply the terms of the existing contract to the
Chowchilla employees from the date of the Union's
demand that Respondent do so, November 29, 1983. Re-
spondent's failure and refusal to recognize and apply the
collective-bargaining agreement to those employees from
that date is therefore a violation of Section 8(a)(5) and
(1) of the Act.
Given these findings, it is unnecessary to consider
whether a bargaining obligation would also have arisen
through operation of the union recognition clause in the
collective-bargaining agreement quoted supra. Further, it
is unnecessary to consider whether employees in the
Chowchilla store meat department expressed directly or
otherwise an interest in having the Union represent them
so as to trigger the union recognition clause under the
theory advanced by the General counsel and the Union.
Accordingly, I shall not further consider the evidence or
arguments concerning these matters including the De-
cember 6, 1984 decision of Arbitrator Letter.
REMEDY
Having found that Respondent has engaged in an
unfair labor practice. I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the purposes of the Act. Having
found that Respondent has failed and refused to apply
the terms of the current collective-bargaining agreement
to the unit employees at the Chowchilla facility in viola-
tion of Section 8(a)(5) and (1) of the Act, I shall order
Respondent to make the unit employees whole by resto-
ration of any loss of wages and benefits they suffered as
a result of this discrimination, including, but not limited
to, the payment of all pension and health and welfare
contributions required under the contract, which had not
been paid and which would have been paid absent Re-
spondent's unlawful conduct as provided by the Board in
McWhorter Trucking, 273 NLRB 369 (1984), and cases
cited therein.
Interest on payment to employees shall accrue as set
forth in Florida Steel Corp., 231 NLRB 651 (1977). Inter-
est and other special make-whole requirements with re-
spect to the contractual fringe benefits shall be deter-
mined in accordance with Merryweather Optical Co., 240
NLRB 1213 (1979).
Having found Respondent wrongfully withheld recog-
nition of the Union as representative of unit employees at
the Chowchilla facility, I shall require it to reaffirm rec-
ognition of the Union in the unit.
Inasmuch as Respondent's conduct constitutes a total
rejection of employees' rights at the Chowchilla facility
to be represented by a union, I find Respondent's con-
duct goes to the heart ofthe Act. Accordingly, I shall
order Respondent to cease and desist from violating the
Act in any other manner. Hickman Foods, 242 NLRB
1357 (1979). I shall also order Respondent to preserve
and make available to the Board or its agents, on request,
for inspection and copying, all records necessary to de-
termine the payments necessary under this decision and
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to ensure Respondent has complied with the terms of the
Order.
I shall further order that Respondent make whole the
Union for loss of union dues that would have been paid
by unit employees but for Respondent's failure and refus-
al to apply the collective-bargaining agreement , with its
union-security clause , to the Chowchilla facility. Dura-
Vent Corp., 257 NLRB 430 (1981); J. F. Swick Insulation
Co., 247 NLRB 626 (1980); Ogle Protection Service, 183
NLRB 682 (1970).
A question arises regarding whether the Chowchilla
store meat department supervisor, whom I have found to
be a statutory supervisor, supra, should be included in
the recognized bargaining unit. There is no dispute that
head meatcutters at other facilities are covered under the
current collective-bargaining agreement and have been
for many years. There is further no dispute that the
duties and responsibilities of the head meatcutters in the
previously recognized facilities are identical to the duties
and responsibilities of the Chowchilla store meat depart-
ment supervisor. Accordingly, it may be assumed that
the head meatcutters have been and are now statutory
supervisors covered by the collective-bargaining agree-
ment. The Board has long held that it is disruptive of a
collective-bargaining relationship to clarify a bargaining
unit during the term of the collective-bargaining agree-
ment to exclude employees or other individuals including
supervisors even if such individuals would not normally
be part of the collective-bargaining unit under Board
standards. San Jose Mercury, 197 NLRB 213 (1972); Wal-
lace-Murray Corp., 192 NLRB 1090 (1971); see also
Arthur C. Logan Memorial Hospital, 231 NLRB 778
(1977). The Board in Arizona Electric Power Cooperative,
250 NLRB 1132 (1980), specifically ordered an employer
to recognize and bargain with a union and to honor and
apply the current collective-bargaining agreement cover-
ing various employees including "lead dispatchers." The
Board recognized that such classified employees could
well be statutory supervisors, and the following refer-
ence to that problem at 1134 footnote 10:
Of course, were the load dispatchers found to be
supervisors or managerial employees, Respondent's
duty to bargain concerning them would terminate
on the expiration of the current contract, provided
that Respondent took appropriate steps at that time
to contest their continued inclusion in the unit. In
that regard, because Respondent's duty to bargain
concerning the lead load dispatcher is based entirely
upon his voluntary inclusion in the unit, this duty
will not extend past the expiration of the current
contract unless the party again voluntarily agrees at
that time to include him in the unit.
I find that it would be disruptive of the current collec-
tive-bargaining relationship to exclude the Chowchilla
store meat department supervisor who differs from head
meatcutters at the other represented facilities in name
only, even though he has been found to be a statutory
supervisor. I shall however, consistent with the language
quoted above, require Respondent to recognize the
Union as representative of the employees only during the
life of the current collective-bargaining agreement pro-
vided that Respondent takes appropriate steps at an ap-
propriate time to contest the continued inclusion in the
unit of such employees. i 8
CONCLUSIONS OF LAW
1. The Respondent, Save Mart of Modesto, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for collective bargaining within the meaning of Sec-
tion 9 of the Act:
All full-time and regular part-time head meat cut-
ters, the Chowchilla store meat department supervi-
sor, journeymen meatcutters, drivers in retail mar-
kets, new clerks, cashiers, delicatessen workers,
demonstrators, apprentice meat cutters and clean-up
workers employed in stores in Merced, Madera,
Fresno, Kings, and Tulare Counties, California and
vicinity including the Chowchilla store, excluding
all other employees, office clerical employees,
guards, and supervisors as defined in the Act not
specifically included above.
4. The Union has at all times material represented a
majority of employees in the unit described above.
5. By failing and refusing to recognize the Union as
representative of unit employees at Respondent's Chow-
chilla facility in November 1983 on the Union's demand,
Respondent violated Section 8(a)(5) and (1) of the Act.
6. By failing and refusing to apply the terms and con-
ditions of the applicable collective-bargaining agreement
to unit employees at Respondent's Chowchilla store in
November 1983 on the Union's demand, Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
7. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
18 As a result of the conversion of the contract's unit description to
Board parlance , see fn 4, above the unit found appropriate here will spe-
cifically include both head meatcutters and the Chowchilla store meat de-
partment supervisor and specifically exclude supervisors as defined in the
Act Even were the actual contract language so constructed, the Board
would not in midcontract clarify out specifically included categories that
were found supervisory Arthur C. Logan Memorial Hospital, 231 NLRB
778 (1977)
Ariel Sotolongo, Esq., for the General Counsel on brief.
Henry F. Telfeian, Esq. (McLaughlin & Irvin), of San
Francisco, California, for the Respondent on briefs
David A. Rosenfeld, Esq. (Van Bourg, Allen, Weinberg,
Roger), of San Francisco, California, for the Charging
Party on brief.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON , Administrative Law Judge.
The above-captioned case arose as follows. On 21 De-
SAVE MART OF MODESTO 1203
cember 1984 I issued a decision in the above-captioned
proceeding. Respondent filed exceptions and a support-
ing brief, and the General Counsel and the Charging
Party filed limited cross-exceptions and supporting briefs.
On 29 September 1987 the Board issued an order re-
manding proceeding to administrative law judge direct-
ing me to issue a supplemental decision containing specif-
ic findings of fact, and conclusions and recommendations
in light of such findings, concerning the day-to-day su-
pervision of the meat department at the Chowchilla
store, and findings of fact, credibility resolutions, conclu-
sions of law, and recommendations concerning the Gen-
eral Counsel's contention that Respondent was obligated
to recognize the Union under the union recognition
clause in the relevant collective-bargaining agreement.
FINDINGS OF FACT
The Board in its remand order stated: "We shall not
order the taking of new evidence, and we instruct the
judge to base his findings and conclusions on evidence
which already has been adduced." The Board's remand-
ing order was received in the San Francisco Division of
Judges' Office on 2 October 1987. On that same day, I
issued an order allowing the parties an opportunity to
brief the issues raised by the remand All parties submit-
ted timely supplemental briefs. On the record in the
original proceeding, as augmented by the Board's
remand order and the supplemental briefs submitted by
the parties, I make the following supplemental findings
of fact and conclusions of law.'
The Board's remanding order addresses two separate
and essentially independent questions litigated in the
original proceedings. The first matter is the day-to-day
supervision of the meat department of Respondent's
Chowchilla store. The second is the issue of whether Re-
spondent was obligated to recognize the Union at the
Chowchilla store by virtue of the collective-bargaining
agreement between Respondent and the Union. It ap-
pears appropriate to treat these two matters separately
below.
1. REMAND ISSUE ONE: DAY-TO-DAY SUPERVISION OF
THE MEAT DEPARTMENT AT THE CHOWCHILLA
STORE
A. The Board's Remand and the Original Decision
The Board's remanding order contained the following
language:
The judge concluded that the meat department em-
ployees at Respondent's Chowchilla store constitut-
ed an accretion to an existing unit covered by the
collective-bargaining agreement then in effect be-
tween the Respondent and the Union. We note that,
in so doing, the judge discredited the testimony of
1 In view of the substantial length of my 21 December 1984 decision
and narrowness of the matters I am directed to address by the Board's
remanding order, I shall not make any attempt to recapitulate my original
decision save as so far as absolutely necessary to render these supplemen-
tary findings comprehensible Where not otherwise explicitly stated, this
supplemental decision incorporates without modification my 21 Decem-
ber 1984 decision
three of Respondent's witnesses as to the day-to-day
supervision of the meat department at the Chow-
chilla store but did not otherwise make specific af-
firmative factual findings concerning this factor.
The Board's order specifically directed me to make "spe-
cific findings of fact, and conclusions and recommenda-
tions in light of such findings, concerning the day-to-day
supervision of the meat department at Respondent's
Chowchilla store . . . ."
My 21 December 1984 decision addressed the issues of
accretion and, more particularly, the relation of the
Chowchilla store to others of Respondent's stores. In-
cluded in the analysis was a discussion of supervision
within the Chowchilla store and supervision of the store
meat department by higher levels of management. That
discussion and analysis are impossible to condense or ex-
cerpt here. The narrow area addressed by the Board's re-
manding order, however, deals with the following lan-
guage in the original decision:
Although the evidence of the day-to-day supervi-
sion of the meat department at the Chowchilla facil-
ity and the allocation of supervision and control be-
tween divisional and store levels was adduced es-
sentially entirely through Respondent's witnesses at
the hearing and was thus not a matter of head-on
dispute, I do not fully credit the testimony of Wall,
Zimmer, and Levesque in this area. I do not take
their testimony at face value because of certain in-
consistencies in the testimony that lead me to be-
lieve, in conjunction in my evaluation of their de-
meanor, that, although each was attempting to
avoid overtly misstating the facts, each was also in-
clined to shade or shape his testimony in a way he
believed favorable to Respondent's case Thus, for
example, there was apparently uncontradicted testi-
mony from. Zimmer and Levesque that Levesque as
divisional meat supervisor visited the Chowchilla
facility no more frequently than fortnightly spend-
ing no more than than an hour on each visit. Under
cross-examination however, Levesque testified that
he spends 90 percent of his time 5 to 6 days a week
"on the road visiting stores." Given that the divi-
sion has but a score or fewer stores, it is apparent
that there is an inconsistency in the testimony con-
cerning the extent of direction and supervision
Levesque undertakes with respect to each store
meat department. The meatcutters at the Chow-
chilla facility each testified that prior to their trans-
fer to that facility they reported to management
certain conversations they had had with a Union
business agent. Both Wayne and Pool testified that
they reported these conversations not to their store
manager or to the head meatcutter at their store,
but rather directly to Levesque. Each also testified
to having made an oral request to be transferred to
the Chowchilla facility. These requests were made
directly to Levesque rather than to their store man-
ager or the head meatcutter at the facility where
the employees worked Indeed, Pool was asked by
counsel for Respondent: "Who did you make the
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
request to?" Pool answered, "to my supervisor Earl
Levesque."
As part of the original decision's conclusion section re-
garding the accretion issue, I stated the following at "3
Conclusion":
I specifically reject the contention that the Chow-
chilla meat department employees experience signif-
icant store level supervision, rather I find the super-
vision, in fact, to be divisional. I make this latter
finding in large part on credibility grounds, but I
am unable to accept the testimony of Respondent's
witnesses to the degree of self-sufficiency and self-
supervision at the store level in Chowchilla as com-
pared and contrasted to the divisional supervision of
Southern Division Meat Supervisor Levesque.
Considering record testimony and other factors as
noted in my original decision, I made certain conclusions
including the following paragraph at "3. Conclusion":
Considering the factors described in the Board
cases cited above, the record as a whole and, im-
portantly, my evaluation of the demeanor of the
witnesses, I find that the Chowchilla meat depart-
ment may not stand alone as a separate bargaining
unit under Board standards but rather must be con-
sidered as a part of and hence an accretion to the
existing multifacility unit represented by the Union. `
There is no dispute regarding the close similarity of
stores, the central control of policies, and the clear
single unit status of the represented meat depart-
ments. Turning to the Chowchilla store with its
similar products, layout, staff duties, wages, and
other working conditions, I find little reason to
treat Chowchilla differently from the other unified
meat departments. I specifically reject the conten-
tion that the Chowchilla meat department employ-
ees experience significant store level supervision,
rather I find the supervision, in fact, to be division-
al. I make this latter finding in large part on credi-
bilty grounds, but [because] I am unable to accept
the testimony of Respondent's witnesses to the
degree of self-sufficiency and self-supervision at the
store level in Chowchilla as compared and contrast-
ed to the divisional supervision of Southern Divi-
sion Meat Supervisor Levesque.
B. Additional Findings and Conclusions
I take the portion of the Board's remand quoted above
to address my credibility resolutions and findings of fact
concerning the degree and relationship of supervision of
the Chowchilla meat department between the store level
and the divisional level. I further believe the remand re-
quires more specific affirmative factual findings concern-
ing this relationship.
As noted in the quoted portions of my original deci-
sion, there was testimony from Levesque, Wall, and
Zimmer that Levesque visited the Chowchilla facility no
more often than once every 3 to 4 weeks with visits last-
ing from 15 minutes to 1-1/2 hours, that Levesque spoke
on the telephone with Zimmer no more often than every
2 or 3 weeks, and that he rarely spoke on the telephone
to Chowchilla meat department meatcutters Pool or
Sharp.
Levesque also testified that he was supplied with a
company car and that as part of his regular duties he
spent 90 percent of his time, 5 to 6 days a week, travel-
ing to the 19 stores in his division. During cross-examina-
tion, when asked why he had not read a certain compa-
ny memorandum, Levesque explained, "If I were to try
to read everything that came across my desk, I would
not be able to spend 90 percent of my time in the
stores." Levesque testified the stores under his supervi-
sion were laid out essentially in a 300-mile loop. Because
there was absolutely no evidence in the record to indi-
cate that the Chowchilla store, once it was opened and
operating, was supervised less closely by Levesque than
the other 18 divisional stores, it is apparent that there is
an inconsistency between the fortnightly or monthly
visits testified to by Levesque and others in the manage-
ment team and the number and/or duration of visits that
would occur if Levesque spent his time "on the road"
visiting stores as he testified under cross-examination. In
evaluating Levesque's credibility in this regard, I also
note that Levesque's testimony concerning other aspects
of his role as a supervisor of Respondent's divisional
store meat departments and the operations of the meat
department division was subject to impeachment by
counsel for the Charging Party by the use of a transcript
of Levesque's earlier testimony at an arbitration concern-
ing similar issues.2 While on re-direct examination Leves-
que was able to explain to an extent his different testimo-
ny before the arbitrator, I became and remain convinced
that Levesque's testimony before me had a rehearsed
nature that rendered his testimony more calculated and
more susceptible to self-serving characterization and dis-
tortion that that given before the arbitrator at a time
when the implications of his answers and the conse-
quences of his answers to his employer would not have
been fully appreciated I make this finding not only on
an examination of the arbitral testimony as compared and
contrasted to the testimony given in the hearing here. I
base it additionally on Levesque's demeanor during his
direct examination, impeachment, and rehabilitation. I
was simply not convinced at the hearing, at the time I
issued my original decision, or now that Levesque's an-
swers in these critical areas were free from a calculation
that on occasion carried past recollection of events into
wished-for occurrences. In these respects I in no way
change but here reiterate the findings in my original de-
cision.
But, having discredited Levesque and, on a similar
basis to the extent necessary, Zimmer and Wall, as the
Board's remand indirectly points out, what specific af-
firmative findings did I make in my original decision or
do I make now that support my other findings respecting
this issue? First, it is clear from the testimony and I find
that, no matter how often Levesque might visit the facili-
ty or call on the telephone, day-to-day supervision of the
2 As noted in the onginal decision , the question of union recognition of
other newly-opened meat departments has been litigated in other forums
SAVE MART OF MODESTO 1205
meat department employees in the sense of an onsite su-
pervision was undertaken by Meat Department Supervi-
sor Zimmer. Zimmer testified credibly without contra-
diction that he assigns the meatcutters their daily tasks.3
It is also true, as Store Manager Wall credibly testified,
that he interacts with Zimmer and coordinates as neces-
sary the activities of the meat department with those of
the store. For example, the hours of the meat department
were changed by Wall as were store hours without prior
approval from divisional supervision either at the meat
department or any other level.
It is also true, and I find, that Divisional Meat Depart-
ment Supervisor Levesque, as Store Manager Wall testi-
fied, "keeps control over the meat department." The
record reflects that Levesque calls meat department store
managers on the telephone to congratulate them regard-
ing outstanding weekly labor cost control, is considered,
by at least the Chowchilla store meat department em-
ployees, as the representative to contact rather than their
own meat department supervisors or store managers con-
cerning their desired transfer to the Chowchilla store. I
also find that Levesque, perhaps as a result of his long
experience in the industry, with experience as a Re-
spondent meatcutter, as a Respondent store meatcutter
supervisor, and as a supervisor over all Respondent's
meat departments during Respondent's earlier history as
a smaller chain, is a hands-on supervisor who spends the
very great bulk of his time in the field supervising the 19
departments in his division. I find his supervision of
Zimmer and the Chowchilla meat department is close
and frequent although it does not occur on a daily or
even every-other-day basis.'
As noted supra, there is no conflict direct or indirect
in record testimony that meat department employees are
directed on a day-to-day basis by their meat department
supervisor and, to the degree noted supra, by the Chow-
chilla store manager. These individuals were assigned to
the store full time. It is clear that crediting Levesque's
testimony quoted supra in a manner most favorable to
the Charging Party's argument, even if Levesque spent
90 percent of his time, 6 days a week on the road visiting
stores, the Chowchilla facility representing approximate-
ly 5 percent of Levesque's stores, the Chowchilla meat
department would not receive an amount of Levesque's
time necessary to undermine a finding that day-to-day
supervision resided with Chowchilla Meat Department
Supervisor Zimmer. This being so, any suggestion that
there is no store level day-to-day supervision of the
Chowchilla meat department employees in the sense of
onsite direction is not consistent with either the record
or my other findings.-'
3 The assignment and supervision of unit employees as they undertake
these tasks is relatively minimal inasmuch as Zimmer's colleagues are ex-
perienced journeymen meat cutters who are able to undertake normal
daily tasks within the meat department without significant direction or
control
4 This habit of close supervision seems to have been longstanding
With the recently disputed stores reserved , the meat departments have
been in a unified bargaining unit for many years and the meat department
heads have been in the bargaining unit
5 Nor do I believe any party disputes the identity of onsite day-to-day
supervision as opposed to the larger question of effective supervision
onsite or otherwise The Charging Party's supplemental brief states
Given the fact of day-to-day supervision by an in-store
supervisor, I do not however modify my conclusions re-
specting the larger issue of whether the Chowchilla meat
department unit should be accreted into the remaining
chain. How can this be? It devolves from my determina-
tion that the store meat departments, including Chow-
chilla, are closely supervised by and oriented to the divi-
sional meat supervisory structure rather than to a store
system of supervision. Thus, I find store supervision,
althugh day-to-day in a temporal and geographical sense,
is substantially lacking in extent and independence. I find
effective supervision to reside with Levesque at the divi-
sional level.
The day-to-day supervision of Chowchilla meat de-
partment employees occurs at the store level largely by
the meat department supervisor rather than the store
manager . The Chowchilla meat department supervisor
and to an extent the meat department employees in gen-
eral look to the meat division and Levesque in particular
for their direction and control. As the Chowchilla store
manager testified, it is the meat division rather than the
individual store managers who primarily direct and con-
trol the store meat departments. This does not mean that
divisional supervision is involved in the day-to-day on
site supervision and direction of unit employees. Rather,
it means, and I find, that as a result of the effective divi-
sional supervision and the other divisional controls and
procedures discussed in my original decision, the com-
munity of interest of meat department employees and
their orientation as part of the employer's staff is with
the other meat departments and the division rather than
with the store. Chowchilla Store Meat Department Su-
pervisor Zimmer, who, as found in my original decision,
is a statutory supervisor and who has, in the sense used
here, day-to-day direction and control of the meat de-
partment employees, is therefore part of a divisional su-
pervisory structure of meat department employees. The
evidence of his day-to-day control over employees in the
meat department, as compared and contrasted to the
lesser degree of control exercised by the store manager,
and the much stronger control of Levesque supports
rather than detracts from my finding of an overall com-
munity of interest among store meat department employ-
ees in the multistore unit.
My conclusion here does not stand in isolation based
on these supplementary findings. Rather, as set forth in
detail in my original decision, the uniform policies, pro-
cedures, and administrative practices of Respondent's op-
General Counsel urges the Judge to find that effective day-to-day su-
pervision of the meat department , as indicated by the record, was
handled by Earl Levesque, Respondent' s meat supervisor Although
meat department supervisor Zimmer was the only supervisor present
at the store on a daily basis, his limited authority was largely circum-
scribed by Levesque
The General Counsel 's supplemental brief states
The Meat Manager, Earl Levesque , exercised substantial day-to-day
control over the Meat Department Thus, Mr Levesque, as the
Meat Supervisor, did the hiring, firing and other employee related
functions establishing day-to-day control in the hands of the Divi-
sional Meat Supervisor
As noted , infra, I find these arguments persuasive in the final result with-
out using the phrase "day-to-day supervision" in the sense argued by the
General Counsel or the Charging Party
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erations, coupled with the control at the division level of
the initial hiring of all meat department employees at the
Chowchilla facility and other newly opened facilities as
well as other central controls, support my conclusion
here.
C. Summary
Accordingly, based on all the above, I make the fol-
lowing supplementary finding that the onsite day-to-day
supervision of the Chowchilla meat department unit em-
ployees in the narrow sense defined, supra, is undertaken
at the store level by Chowchilla Store Meat Department
Supervisor Zimmer who in turn is primarily responsible
to Divisional Meat Supervisor Levesque. I reiterate my
previous finding however that the effective supervision
as well as the orientation and community of interest of
the Chowchilla meat department employees is with the
divisional meat department and the other store meat de-
partment employees rather than with the other employ-
ees at the Chowchilla store. Thus, save for my modified
findings of fact regarding the onsite day-to-day supervi-
sion of Chowchilla Meat Department store employees by
Chowchilla Meat Department Supervisor Zimmer, I do
not modify the findings of fact or conclusions of law of
my original decision with respect to the accretion ques-
tion.
II. REMAND ISSUE TWO: RESPONDENT'S OBLIGATION
TO RECOGNIZE THE UNION AT THE CHOWCHILLA
STORE UNDER THE COLLECTIVE-BARGAINING
AGREEMENT BETWEEN RESPONDENT AND THE
UNION
A. The Board's Remand and the Original Decision
In my original decision, I held that there were three
issues to be decided, the unit issue, the issue of whether
the contractual language between the parties constituted
an "additional store clause" under Board law, and, final-
ly, assuming such a contract clause, whether the Union
had demonstrated sufficient employee support under the
Board law to put the clause into effect In my original
decision, I resolved the accretion issue in such a way
that Respondent was obliged, independent of any con-
tractual duty, to recognize the Union, I stated at "D.
Consequences":
Given these findings, it is unnecessary to consider
whether a bargaining obligation would also have
arisen through operation of the Union recognition
clause in the collective-bargaining agreement
quoted supra. Further, it is unnecessary to consider
whether employees in the Chowchilla store meat
department expressed directly or otherwise an inter-
est in having the Union represent them so as to trig-
ger the union recognition clause under the theory
advanced by the General Counsel and the Union.
Accordingly, I shall not further consider the evi-
dence or arguments concerning these matters in-
cluding the December 6, 1984 decision of Arbitra-
tor Letter.
The Board in its remand order specifically directed me
to make:
findings of fact, credibility resolutions, conclusions
of law and recommendations concerning the Gener-
al Counsel's contention that counsel's contention
that the Respondent was obligated to recognize the
Union under the Union recognition clause in the
relevant collective-bargaining agreement.'
I Such findings should include, but are not limited to, a resolu-
tion of whether the General Counsel has established majority
status among the meat department employees at the Chowchilla fa-
cilty
B. Additional Findings and Conclusions
As noted supra, my review and reconsideration of the
evidence concerning the accretion issue as directed by
the Board's remand has not caused me to change my
final conclusion respecting the accretion issue . Thus, it
remains unnecessary, should my resolution of the issue
withstand review, to consider the contractual issues
raised here. In light of the specific directives of the
Board's remand however, I shall address first the con-
tractual issue and, thereafter, the issue of union majority
support in an after-acquired store clause context. Such an
analysis presupposes reversal of my accretion findings,
supra. The issues of contract and employee support for
the Union are factually independent and will be consid-
ered separately below.
1. The contract issue
My 21 December 1984 decision sets forth the facts and
positions of the parties respecting the argument that the
applicable contract between the parties including an
after-acquired store clause. I shall not repeat that recita-
tion here. That decision (at fn. 1) noted that the Charg-
ing Party had filed a motion to defer to arbitration
and/or to supplement the record with the 6 December
1984 decision of Arbitrator Letter in a matter brought by
the Charging Party against Respondent interpreting and
applying the instant contract in an after-acquired store
context at another of Respondent's facilities. The foot-
note stated: "The motion to defer is denied inasmuch as
the unit issues here are for Board determination. I shall
receive the December 6, 1984 decision of Arbitrator
Letter into the record consistent with my rulings at the
hearing concerning the limited use of such evidence."
Arbitrator Letter's decision also addresses bargaining
unit questions and the question of whether a majority of
employees selected the Union at the facility in dispute.
The resolution of such matters has been traditionally re-
served by the Board to itself and, consistent with that
view, I shall not consider Arbitrator Letter's discussion
and analysis of those issues. Arbitrator Letter's arbitra-
tion decision, however, also interprets the contract be-
tween the parties The Board in Kroger Co, 219 NLRB
388 (1975), and its progeny has held that additional store
clauses constitute in effect a contractual waiver by an
employer of its right to seek a Board election measuring
the desires of its employees for union representation. The
SAVE MART OF MODESTO
Board has consistently held that, to the extent such
clauses appear to affect employees' rights, they will be
carefully scrutinized. Thus, the Board has traditionally
read into additional store clauses a need to demonstrate
union majority support among employees at any facility
at which a union is recognized pursuant to such a con-
tractual agreement. Arbitrator Letter in his decision in-
terpreted the instant contract in light of the bargaining
history and past practice of the parties as well as rele-
vant Board and court law. He concluded that the con-
tractual language quoted in my original decision consti-
tuted an after-acquired store clause. The decision of the
arbitrator in this narrow aspect interprets the contract
and resolves the rights of only the Charging Party and
Respondent and not the rights of employees at various
facilities. The Board's traditional view that it will not
defer to an arbitrator's decision concerning issues of ma-
jority support for the union or concerning unit or repre-
sentation questions does not apply to such an interpreta-
tion. Thus, consistent with the Board's traditional stand-
ards for deferring to an arbitrator's interpretation of the
contract, at least insofar as to the rights of contracting
parties are involved, I find, consistent with Arbitrator
Letter's explicit findings in his arbitration decision,6 that
the contract contains a valid after-acquired store clause
within the meaning of the Board decisions cited supra
and in my original decision.
2. The majority issue
Several separate determinations must be made to re-
solve the majority question. First, the date or dates on
which the majority is to be tested must be established.
Second, the unit complement must be identified. Third
and finally, the means of measuring employee sentiments
and the burdens assigned to the parties in establishing
those sentiments must be established.
The Board in Joseph Magnin Co., 257 NLRB 656, 656-
657 (1981), enfd. 704 F.2d 1457 (9th Cir. 1981), noted
that under a valid after-acquired store clause, the em-
ployer's duty to recognize the union arises "only if the
Union presented [the employer] with concrete evidence
of support by a majority of the [new store's] employees."
As noted in my original decision, the Union made its
demand for recognition on 29 November 1983, the day
before the Chowchilla facility opened to the public. By
that date the three meat department employees at Chow-
chilla had been selected and were actually at the facili-
ty.'' It follows therefore that these individuals' sentiments
should be examined as of that date-8
6 Arbitrator Letter (at p 32 of his arbitration decision) states "It fol-
lows, and it is concluded, that the Parties' current agreement, effective
January 13, 1983, still contains a-viable after-acquired store clause "
r There were temporary employees at the Chowchilla store for the
preparation and opening proceedings These temporary employees were
at no time part of the appropriate unit
8 The Charging Party argues the Employer should have been aware of
the Union's "continuing demand for recognition in newly opened stores "
Such a theory, if viable in other circumstances, fails here The Union, by
choosing the time of the delivery of its demand, established the date the
majority was to be tested
1207
As of 29 November 1983 meatcutter journeymen Pool
and Sharp and Store Meat Department Supervisor
Zimmer had each executed and mailed withdrawal re-
quests to the Union. Respondent on brief points out that
the Board in Distillery Workers Local 80 (Capitol-Husting
Co.), 235 NLRB 1264 (1978) specifically held that a re-
quest for a withdrawal card is evidence of an intention to
resign from the union. Here there can be no question
that those actions constitute convincing evidence that the
employees in the meat department at the Chowchilla fa-
cility did not wish the Union to represent them.9 Further
the Charging Party had no evidence save union member-
ship to offer in support of a contention that the employ-
ees sought representation at the Chowchilla facility.
Two separate arguments were offered that challenge
the finding above. First, the Charging Party and the
General Counsel argue that a presumption of majority
support for the Union arose simply from the fact that the
employees staffing the Chowchilla meat department were
transferred from other facilities covered by the collec-
tive-bargaining agreement that agreement contained a
union-security clause . Thus, Counsel for the General
Counsel states in his original brief:
Respondent, by transferring a majority of its own
employee unit members into a new store cannot
then claim that the Union no longer represents the
employees, particularly when the new store is not
different than other stores wherein the Union con-
tinues to be the acknowledged bargaining represent-
ative. Thus, the presumption of majority, born out
of the multi-location unit, carves over to the new
Chowchilla store with the unit employees trans-
ferred there.
I reject this argument as contrary to the fair meaning of
the Joseph Magnin Co. decision, supra, and Williams &
Lane, Inc., 254 NLRB 609 (1981). These decisions explic-
itly require evidence of employee sentiments to be con-
crete and directed to representation at the new store not
at previouslocations.
The General Counsel challenges the conduct of Re-
spondent's agents in communicating with the transferees
to the Chowchilla department contending that any infor-
mation given by the employees to Respondent's agents
concerning their union sentiments was improperly solicit-
ed and was, under scrunity, not sufficient to support the
Employer's refusal to recognize the Union as representa-
tive of the Chowchilla meat department store employees
The Charging Party goes further and challenges the de-
cision of Respondent to transfer the particular employees
it selected for the Chowchilla store as based entirely on
Respondent's improper consideration of union sentiments
and sympathies. Under the arguments of the Charging
Party and General Counsel, the improprieties of Re-
spondent in selecting the particular employees and in
e In view of the unanimity of opinion of the two journeymen meatcut-
ters who were indisputably within the bargaining unit, it is unnecessary
to determine the unit placement-for purposes of testing majority senti-
ments-of Store Meat Department Supervisor Zimmer This is so be-
cause, irrespective of his unit placement or, indeed, his sentiments re-
specting the Union, he could not affect the arithmetic result
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dealing with them between the time of their selection
and the time of the opening of the Chowchilla store
should prevent any consideration of the anti-union senti-
ments of those employees.
I reject the position of both the Charging Party and
the General Counsel on this record concerning the effect
of argued Respondent improprieties in the selection of or
communication with Chowchilla meat department em-
ployee transferees during the period before the opening
of the Chowchilla store. In my view neither the General
Counsel nor the Charging Party may now contend Re-
spondent engaged in misconduct that under normal
Board doctrines would constitute a violation of Section
8(a)(1) of the Act, unless such conduct had been alleged
in the complaint as a violation of the Act. In other
words, I find the General Counsel's failure to allege the
conduct as a violation of Section 8(a)(1) of the Act pre-
cludes that conduct from being considered as sufficiently
improper to affect the employee sentiments expressed for
purposes of resolving the after-acquired store clause ma-
jority issue. On the same grounds I reject the Charging
Party's contention that, in effect, the Employer violated
Section 8(a)(1) and (3) of the Act by selecting employees
for transfer to the new facility based on union senti-
ments.
Given my findings above, I conclude that at no time
did the Union provide Respondent with concrete evi-
dence that a majority of employees in the meat depart-
ment unit at the Chowchilla store desired to be repre-
sented by the Union at the Chowchilla store. This being
so, irrespective of my findings respecting the validity of
the after-acquired store clause, the General Counsel and
the Charging Party have failed to show a contractually
based bargaining obligation on the part of Respondent. i o
i° A similar finding was made by the Administrative Law Judge Jer-
rold H Shapiro in his 13 February 1985 decision , Save-Mart of Modesto,
Inc., JD-(SF)-25-85, affirmed by the Board in the absence of exceptions
on 2 April 1985 That decision held that the Respondent here was not
obligated to recognize a sister union of the Charging Party at its newly
Accordingly, I find that Respondent was under no obli-
gation, as a result of the after-acquired store clause in its
collective-bargaining agreement with the Charging
Party, to recognize or bargain with the Union respecting
the meat department employees at its Chowchilla facili-
ty. 11
CONCLUSIONS OF LAW
On the foregoing findings of fact and the entire record
here, I make the following supplemental conclusions of
law, which follow after conclusions of law 1 through 7
as set forth in my original decision of 21 December 1984.
8. Respondent and the Charging Party at relevant
times herein had a collective-bargaining agreement con-
taining a valid after-acquired store clause.
9. At no relevant time did the Charging Party present
Respondent with concrete evidence of support by a ma-
jority of the new store's unit employees, therefore the
provisions of the contract's after-acquired store clause
were not triggered and at no time acted to obligate Re-
spondent to recognize and bargain with the Charging
Party concerning the Chowchilla store meat department
employees.
[Recommended Order omitted from publication.]
opened Tracy, California facility where the General Counsel and the
Union offered as proof of majonty support for the Union the existing
union membership of the meat department employees prior to their trans-
fer to the new facility and where the record failed to otherwise establish
that any of the employees had expressed a desire to be represented by the
Union for purposes of collective bargaining at the new facility The
judge's decision , as affirmed by the Board only in the absence of excep-
tions is not binding precedent Respondent 's argument that the General
Counsel's failure to file exceptions to that decision is somehow relevant
to the instant case is rejected
i i This finding is independent of and in no way affects my earlier find-
ings and conclusions reconfirming my original decision that the Chow-
chilla meat department constituted an accretion to the overall multi-facili-
ty bargaining unit Under that theory, Respondent is obligated to recog-
nize and bargain with the Union independent of the after-acquired store
language of the collective -bargaining agreement and independent of the
sentiments of the Chowchilla meat department employees