Shop'n Save Co., Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1969

174 N.L.R.B. 1113 (N.L.R.B. 1969)

SHOP 'N SAVE CO., INC. 1113
Shop 'n Save Co ., Inc.' and Amalgamated Meat
Cutters & Butcher Workmen of North America,
Local 385, AFL-CIO, Petitioner . Case 1-RC-9822
M arch 12, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Francis V. Paone, Hearing
Officer Following the hearing, this case was
transferred to the National Labor Relations Board
in Washington, D.C., pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended. Thereafter, both the Petitioner and the
Employer filed briefs, which have been duly
considered.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in
connection with this case to a three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby
affirmed
Upon the entire record in this case, the Board
finds.
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act, for the
following reasons:
The Petitioner seeks a unit of employees at the
Employer's Orono, Maine, retail food products
store. The Employer contends that a unit limited to
that one store is inappropriate. We find no merit in
the Employer's contention.
The Employer's operation consists of five retail
foods stores located at Bangor, Old Town, Orono,
Bucksport, and Ellsworth, all within the State of
Maine The Orono store sought herein, is located 5
miles south of the Old Town store and 8 miles
northeast of that in Bangor Bucksport is 19 miles
south, and Ellsworth 27 miles southeast, of Bangor.
Each of the five stores serves a different economic
area. The main office of the chain is located at
Bangor
'The name of the Employer appears as amended at the hearing The
Employer is also sometimes referred to as "Doug's" or "Doug's Shop'n
Save "
Each of the five stores comprising the Employer's
operation is separately incorporated, four being
subsidiaries of the Bangor corporation. All the
corporations have identical ownership, officers, and
boards of directors. Each store maintains a separate
bank account and, while checks may be written
against each account by the president, head
bookkeeper, and treasurer of the parent corporation,
such authority is also possessed by the individual
store managers. Money is loaned from one store
account to another by the treasurer of the parent
corporation in his alter ego role as treasurer of each
of the individual stores. The store manager, assistant
store manager, and department heads at each store
partake in a profit-sharing program It is
noteworthy that the fruits of that program are
determined by the profits of the individual store,
and not by the chainwide profits.
The outward appearance of each of the five stores
varies. Not only are the architectural designs widely
divergent, but the Bangor and Ellsworth stores
feature the name "Doug's" and "Shop'n Save"; the
Bucksport store carries only the inscription
"Doug's"; and the Orono and Old Town stores
appear to carry signs reading only "Shop'n Save".
However, an Employer advertisement in the record
indicates that it covers the Employer's chain of
stores, with pictures of all five stores and their
varying names therein.
As noted above, the Employer maintains
headquarters at Bangor, Maine The executive staff,
consisting of Douglas H Brown, general manager,
Robert Hunt, director of retail operations, and
Herbert Cowan, supervisor of perishables, work out
of that headquarters. Brown, in addition to his
duties as general manager of the Employer, is also
treasurer of the parent and all individual store
corporations, sits on the three-man board of
directors of each, and is a substantial stockholder in
the Employer.
As is normal in operations in the retail food store
business, a number of functions are performed
centrally out of headquarters. Accounting, auditing,
personnel relations, wage rates, and fringe benefits
are controlled at Bangor. Hours during which the
various stores are opened are established by General
Manager Brown, but they vary from store to store.
Major maintenance of the stores is determined at
Bangor but housekeeping of the stores is within the
province of the local stores. Sales records, bills,
paychecks, advertising, and sales promotions are
controlled centrally, and seniority is accumulated
systemwide.
The Employer utilizes a warehouse and central
distribution center in Portland, Maine.
Approximately 90 percent of all purchasing by the
individual stores is done from the warehouse and is
controlled, except as noted below, by headquarters
at Bangor. The prices for all goods so purchased are
established centrally, and the individual store
managers possess little or no authority to change
174 NLRB No. 156
11 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prices on goods purchased from the warehouse. In
addition to goods provided by the central
distributing center at Portland, the Employer
maintains a list of authorized vendors from which
virtually all of the remaining 10 percent of goods
purchased by the stores is obtained. Items to be
purchased are identified both by trade name and by
quality grade, and again the individual stores
exercise little or no control over the prices paid for
such goods. In addition, some items are occasionally
bought from nonauthorized dealers. It appears that
such purchases are transacted both by the store
managers and by the heads of the various
departments within the store, but purchases from
nonauthorized dealers amount to one-hall of I
percent of total purchases, if that much. Inventory
levels, pricing of goods to be sold and display of
merchandise we established at Bangor.
Goods are transferred from one store to another.
This is accomplished by use of local truckers, rented
trucks, or Perishables Supervisor Cowan's station
wagon Transfers of product may be requested by an
individual store manager or by one of the individual
store department heads, but the decision whether or
not to transfer is made by the central office.
There is a great deal of' testimony concerning the
Employer's hiring practices. While it is clear that
the normal practice is for hiring authority to be
vested in Bangor headquarters concerning full-time
male employees, a store manager may hire such an
employee on a temporary basis in an emergency,
subject to subsequent approval by Bangor. Full-time
female employees may be hired by the store
managers. Temporary and regular part-time
employees are normally hired by the store managers
and sometimes even by the department heads. Meat
and produce wrappers are generally hired by the
department heads. When hiring is accomplished at
the local level, only the lowest scale for the job in
question can be given until headquarters approves
higher pay Full-time employees, male and female,
constitute about 50 percent of the total work force,
regular part-time employees about 40 percent, and
temporary employees about 10 percent
Store managers possess the authority to discharge
employees, subject to the review of headquarters in
Bangor. While it was testified that they can be and
have been overruled, it was also testified that such
decisions by store managers are not often
overturned. Meat and produce department heads are
also empowered to discharge employees, but would
normally comply with company policy and consult
with either the store manager or one of the
executive officers before doing so.
The record reveals a degree of involvement in the
store's day-to-day operations by the executive
officers which is normally found in the retail food
store industry. Brown testified that he visits the
Orono store about once every 3 weeks but that his
visits are substantially more frequent during periods
of special problems than during routine periods, and
that he is normally in telephone contact with each
store between two and five times each week. Brown
testified that Director of Retail Operations Hunt
visits the stores daily or weekly. Cowan, supervisor
of perishables, testified that he customarily visits
each store on each day of his 6-day working week,
and that he quite often resolves personnel problems
in all five stores.
The five stores have a total complement of 154
employees. There are 22 at the Orono store,
including the store manager, assistant store
manager, and department heads During the
145-week period beginning on January 1, 1965, and
extending until October 15, 1967, there were 76
instances of permanent transfers and 192 temporary
transfers among the five stores. During the same
period, there were 15 permanent transfers and 30
temporary transfers into or out of the Orono store.
It appears that in some instances the transfers were
for inventory taking and some were effected so that
an employee might earn extra pay by working at
another store on his day off.'
In addition to the foregoing evidence as to the
duties and responsibilities reserved at the individual
store level, the record reveals that the store
managers, and, to some extent even individual
department heads, are empowered to grant an
employee time off or permission to leave work
early, and may recall needed full-time or part-time
employees All goods purchased for resale to the
public are purchased at the individual store level.
Other testimony reflects that although charged with
carrying out company policy the store managers
exercise considerable independent judgment in
conducting the operations of the stores on a
day-to-day basis. The success of a store manager in
achieving greater efficiency in the operation of his
store will be reflected in the store's profits and in his
share thereof under the Employer's profit-sharing
plan.
It is well established that the Board has wide
discretion to make a determination as to what is the
appropriate unit in each case. In the retail chain
store industry, the Board, in Sav-On Drugs, Inc.,'
stated that "whether a proposed unit which is
confined to one of two or more retail establishments
making up an employer's retail chain is appropriate
will be determined in the light of all the
circumstances of the case." A unit confined to the
Orono store employees herein is, of course,
presumptively appropriate.4 We find that the record
evidence in the instant case serves to buttress, rather
than to rebut the presumption that the Orono store
'In any event , even including all transfers during the 145 week period
under consideration , there was only one instance of permanent transfer
every 2 weeks and 4 instances of temporary transfers every 3 weeks among
the employees of all 5 stores , and only one instance of permanent transfer
every 10 weeks and one instance of temporary transfer every 5 weeks
involving Orono store personnel
'138 NLRB 1032
'Haag Drug Company, Incorporated , 169 NLRB No I I 1
SHOP 'N SAVE CO., INC
employees constitute an appropriate unit Thus, the
Orono store is geographically separated from all of
the Employer's other stores and serves a different
market area. The store is separately incorporated,
maintains its own bank account, has a profit-sharing
plan determined on its own record, and is distinctive
,in appearance. Goods are purchased locally at
Orono; there is little employee interchange with
,employees at other stores; individual employee's
working hours are fixed, and time off and
permission to leave work early are granted locally.
There is considerable local control over hiring and
discharge, and the store manager exercises
independent judgment in carrying out Employer
policy at the store and in the store's day-to-day
operations Considering the totality of
circumstances, in the light of our guiding principles
as declared in the Haag Drug case, supra, we
conclude that a unit confined to the employees of
the Orono store is appropriate herein.'
The Petitioner would include, and the Employer
exclude as supervisors, the heads of the meat and
produce departments The record indicates that they
possess the authority to hire new employees,
apparently may effectively recommend discharge of
employees, establish hours of work, and responsibly
direct employees in their departments in the
performance of their functions. We find that they
are supervisors as defined in the Act and we shall
exclude them from the unit found appropriate
herein.
'Cf Star Market Co , Inc, d/b/a Dan's Star Market , 172 NLRB No
130
1115
Accordingly, we find that the following employees
of the Employer constitute an appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act: All full-time
and regular part-time employees of the Employer's
store located at Orono, Maine, but excluding the
store manager, assistant store manager, meat
department head, produce department head,
seasonal or casual employees, guards and
supervisors as defined in the Act
[Text of Direction of Election6 omitted from
publication.
An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region I within 7 days after the date of this Decision and Direction of
Election The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed Excelsior Underwear Inc , 156 NLRB
1236 However , in Wyman-Gordon v N L R B, 397 F 2d 394 (C A 1),
the Court of Appeals for the First Circuit, while indicating approval of the
substance of the Board's Excelsior decision , held that the requirement of
the furnishing of an eligibility list is void because it was not adopted in
conformity with the provisions of Section 4 of the Administrative
Procedure Act (5 U S C Sec 553) While noting our disagreement with
Wyman-Gordon , we shall in deference to the First Circuit modify our
procedures in elections conducted within the territorial jurisdiction of that
Circuit where an employer refuses to furnish the eligibility list In such
cases, until the propriety of the Board's procedure in adopting the
Excelsior requirement has been finally determined , we shall not issue a
subpoena for the production of the list, nor shall we seek Court
enforcement of the requirement , and upon the filing of timely objections on
the ground an election was conducted without the list, the objections will
be held by the Regional Office until such time as the propriety of the
Board ' s procedure in adopting the Excelsior rule has been finally resolved