The Food Mart

National Labor Relations Board - Board Decisions

Feb 2, 1967

162 N.L.R.B. 1420 (N.L.R.B. 1967)

1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agawam Food Mart , Inc., et al. d/b/a The Food Mart and Local
33, Amalgamated Meat Cutters, Food Store & Allied Workers
of America, AFL-CIO, Petitioner . Case 1-RC-8733. Febru-
ary 2, 1967
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed tinder Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer S. Anthony DiCiero of the National Labor Relations Board.
The Hearing Officer's rulings made at the hearing are free from
prejudicial error and are.hereby affirmed. The Employer and the
Petitioner each filed a brief in support of their respective positions.,
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Brown and
Zagoria].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all employees in the meat depart-
ment of the Employer's store at 1600 Memorial Avenue, Fairview,
Massachusetts, excluding all other employees, professional employees,
watchmen, guards, and supervisors as defined in the Act.
The Employer contends that the only appropriate unit is all em-
ployees in the meat departments of all the Employer's stores located
in Massachusetts and Connecticut, including kitchen employees lo-
cated in Springfield, Massachusetts, but excluding all other employ-
ees, office clerical employees, professional employees, watchmen,
guards, and supervisors as defined in the Act. The Employer states
that its multistore unit is the one agreed upon by the parties by
stipulation in Case 1-RC-8199 and earlier found appropriate by the
1 Subsequently , the Employer filed three motions. In one it requested the Board to take
judicial notice of a court decision In N L R B v Frasch's Bag Boy Ill -Mar Inc , 356 F 2d
895 (C.A. 7), February 11, 1966 . In the other two, filed respectively on March 15 and
June 16, 1966, it requested the Board to reopen the record for the taking of additional
evidence In the form of attached exhibits , and to reinstate the petition In Case 1 -RC-8199
The Board grants the first motion The Board also grants the other motion to the extent
that it accepts the exhibits which are letters to the meat department employees from the
Petitioner, and makes them a part of the record . However, contrary to the Employer's con-
tention , we conclude such letters do not warrant reinstatement of the petition in Case
1-RC-8199
162 NLRB No. 132.
AGAWAM FOOD MART 1421
Board in 1960 in Case 1-RC-5876,2 and it contends the single store
unit is inappropriate.
In Case 1-RC-8199, pursuant to a Stipulation for Certification
upon Consent Election executed on January 26, 1965, an election by
secret ballot was conducted on February 12, 1965, in a unit which
embraced all meat department employees in the Employer's stores
in Massachusetts and Connecticut, including the kitchen employees
at 1176 Main Street, Springfield, Massachusetts. The Petitioner did
not receive a majority of the valid ballots that were cast and filed
timely objections to conduct affecting the results of the election. The
Regional Director conducted an investigation and, on April 14, 1965,
issued and duly served upon the parties his Report on Objections,
in which he found merit to objection 6 and recommended that the
election be set aside and a new election directed. Thereafter, the
Employer filed timely exceptions to the Regional Director's Report,
the Petitioner filed a statement in support of the Report, and the
Employer filed a reply.
On June 17, 1965, the Board adopted the Regional Director's find-
ings and recommendations and directed that the election be set aside
and a new election held. Prior to this determination, the Petitioner,
on June 8, 1965, filed unfair labor practice charges against the
Employer and a hearing was held before a Trial Examiner on
November 15 and 16, 1965.
The Board thereafter adopted the Trial Examiner's findings that
the Employer's withholding of benefits and conditioning the grant of
benefits upon employees' waiver of the right to file charges or objec-
tions with the Board, violated Section 8(a) (1) of the Act.3
On October 27, 1965, the Petitioner requested leave to withdraw
its petition in Case 1-RC-8199, and on November 4, 1965, the Board
granted the withdrawal, with prejudice to the filing of a new peti-
tion for a period of 6 months from the date of such order.
On November 29, 1965, the Petitioner filed the present petition,
seeking a unit consisting of a portion of the employees who were
involved in the previous election; it urges that the Board waive its
6-month prejudice period because of the Employer's alleged miscon-
duct and because of the time that has elapsed since the last election.
On December 6, 1965, a hearing was held on the present petition
and the matter thereafter referred to the Board.
We are of the view that it would not effectuate statutory policy to
preclude at this time the further processing of the instant petition
because of the condition imposed upon the withdrawal of the earlier
petition in Case 1-RC-8199. A hearing having been held and the 6-
2 In Case 1-RC-5876, the record shows that the Petitioner sought in its petition an elec-
tion among the meat department employees in a multistore unit and the Board directed an
election in such unit.
7 The Board 's decision in this case appears at 158 NLRB 1294.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
month prejudice period having long since expired, we believe that it
would be not only pointless, but unnecessarily wasteful and costly,
to dismiss the instant petition and require another hearing on a new
petition. Consequently, we shall entertain the instant petition and
consider it on its merits.
The Employer operates 12 stores, 8 of which are located in Massa-
chusetts and 4 in Connecticut, and each of which has a meat depart-
ment which includes a delicatessen subdepartment. In the Fairview
store, the only one involved in the instant petition, there are between
14 and 18 employees in the meat department. There are approxi-
mately 150 meat department employees employed in all of the Em-
ployer's stores. At each store, the meat manager of that store's meat
department is in charge of the day-to-day operations of that depart-
ment and a store manager is in charge of the day-to-day operations
of the store. Employees in the meat departments do not interchange
with employees in any of the other store departments. The meat
department employees do customary meat preparation work, such as
cutting, weighing, and wrapping of meats. The Employer has a
kitchen, located in Springfield, where cooked and other prepared
foods which are sold in its delicatessen sections are prepared. The
employees working in the kitchen have no retail function whatso-
ever; the kitchen is not associated with any store, and its employees
are not interchanged with any meat department employees in any of
the stores. I
• The Fairview store ,is, separated from the other stores in the chain
by a minimum of 3 miles to a maximum of approximately 50 miles.
As noted, the stores are located in two States, and the Fairview store
is in a separate town and a separate merchandising ,locality from
any of the Employer's other stores.
The Fairview store manager, is in charge of the, ,day: to-day oper-
ations of the store. He is responsible for all ;departments, and en-
forces company policy in•,the store. Each department, in the store has
an individual who orders the, merchandise for that department. The
store manager can transfer, employees from one department to
another within his store. The store manager, attends, management
meetings and then is responsible for assuring, that the policies are
carried out in each of the ,departments, of his,store. The, store man-
ager handles part-time employment application and ;makes notations
pn the application for evaluation at the, main office. In some situa-
tions the store • manager can hire . part-time employees 'without their
being interviewed by anyone from the main office. Each' store can
make signs, and "shelf talkers" for advertising purposes provided
they relate to all items on special.
The foregoing facts support a finding that the Fairview store has
sufficient autonomy and is sufficiently separated from'other stores to
AGAWAM FOOD MART 1423
justify the single store unit of meat department employees sought in
the petition.
We recognize that there are other facts emphasized by the Em-
ployer which would also support a multistore unit of meat depart-
ment employees. These include, inter alia: that meat department
employees of all stores receive uniform wages and benefits; that
there is some degree of interchange between the Fairview store and
other stores; that directors of operations with chainwide authority
are located at the main office and policy decisions are made there;
that payroll records are maintained, and decisions concerning per-
manent employment and transfers are made at the main office.
In determining whether a single store in a chain of retail stores
(supermarkets) is an appropriate unit, the Board applies the same
unit determination policies that it applies to multiplant enterprises
in general and makes its determination in light of all the circum-
stances of the case.4 The essential question in issue is not the deter-
mination of the most appropriate unit but whether the unit peti-
tioned for is an appropriate unit. Among factors which the Board
has deemed relevant are : the geographical location of the single
store in relation to the other stores; the degree of autonomy in the
single store; the frequency of employee interchange between stores;
the extent of functional integration among the stores; the bargain-
ing history; the unit or units being petitioned for by a labor organi-
zation. These and any other factors deemed relevant in a particular
case are evaluated to determine whether the unit petitioned for is
a distinct, self-contained economic unit that is appropriate for pur-
poses of bargaining.
In all of the circumstances of this case, we find no merit in the
Employer's contention that a unit of meat department employees
must encompass such employees at all its locations. Section 9(b) of
the Act directs the Board to make appropriate unit determinations
which will "assure to employees the fullest freedom in exercising the
rights guaranteed by this Act . . ." In order to effectuate this man-
date, the Board has held that the Act does not compel labor organi-
zations to seek representation in the most comprehensive grouping of
employees which might be appropriate unless such grouping consti-
tutes the only appropriate units The mere fact that an overall unit
may be appropriate does not establish that a smaller or single unit is
inappropriate, particularly where, as here, there is no bargaining
history in an overall unit and no labor organization seeks to repre-
sent such a unit.
, See Sav - On Drugs , Inc., 138 NLRB 1032 ; Purity Food Stores , Inc. (Say;-77ore Food
Stores ), 160 NLRB 651.
5Montgomery Ward S Co . Incorporated , 150 NLRB 598 ; Quaker City Life Insurance
Company, 134 NLRB 960, enfd. on this point , 319 F. 2d 690 (C.A. 4).
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite certain aspects of centralized management and control
noted previously, it is clear that many day-to-day decisions are made
in the individual stores, including the Fairview store in issue here,
and that these stores do, as a matter of necessity, retail a certain
degree of autonomy in their operations. The geographical separa-
tion of the stores in the two-States area, although it would not pre-
clude finding an overall store unit appropriate, nevertheless is a sig-
nificant factor tending to support a finding of the appropriateness of
a single store unit. To the extent the record establishes some degree of
interchange, we find it minimal and hardly an overriding factor.
Finally, we note that there is no bargaining history in a more com-
prehensive unit than that petitioned for and that there is no labor
organization currently seeking to represent meat department employ-
ees on a broader scale. Accordingly, we find that a unit of meat depart-
ment employees at the Employer's Fairview store is appropriate.'
The Petitioner would exclude the meat department manager as a
supervisor, and the Employer would include him. The meat depart-
ment manager at the Fairview store is in charge of the day-to-day
operations of the department, and is responsible for and directs the
work of the 15 employees in the department. He makes out the time
schedule, assigns hours, and recommends discipline and promotions.
He is on a salary, while the other members of the department are
hourly paid, and he receives better health insurance than rank-and-
file employees. We find, as we did in our previous decision in Case
1-RC-5876, that the meat department manager is a supervisor within
the meaning of the Act, and we shall exclude him from the unit.
In view of the foregoing, we find that the following employees
constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All employees in the meat department at the Employer's 1600
Memorial Avenue, Fairview, Massachusetts, retail food store, exclud-
ing all other employees, professional employees, watchmen , guards,
meat department manager, and all other supervisors as defined in the
Act.
[Text of Direction of Election omitted from publication.] 7
9 The fact that the Union having previously petitioned for a broader unit of Employer's
employees may now be motivated in part by the extent to which it has organized in seeking
the smaller unit, does not preclude that finding . Our finding of unit appropriateness is not
controlled by that consideration , but is bottomed upon the other considerations adverted
to above which independently support that finding. Allied Stores of New York, Inc., 150
NLRB 799, 807; Purity Foods Stores , Inc. (Sav-Mor Food Stores), supra.
7 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 1 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.