The Grand Union Co.

National Labor Relations Board - Board Decisions

May 28, 1969

176 N.L.R.B. 230 (N.L.R.B. 1969)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Grand Union Company and Food Handlers
Union Local 371, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO,
Petitioner . Case 1-RC-10184
May 28, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULIOCH AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
he aring 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 Procedures, Series 8,
as amended . Thereafter, the Employer, the
Petitioner, and the Intervenor' filed briefs, which
have been duly considered.
Pursuant to the provisions of 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 Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Sections
9(c)(l) and 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of employees at the
Employer's Waterbury, Connecticut, store. The
Employer contends that a unit limited to that store
is inappropriate, and that the smallest appropriate
unit is one encompassing all six stores- in its
administrative division which includes the
Waterbury store. The Intervenor takes no position
as to the scope of the unit.
The Grand Union Company, a Delaware
corporation having its principal place of business in
East Patterson, New Jersey, operates a large
number of retail food stores in various States of the
United States and in Puerto Rico. The Grand
'Local 919 , Retail Clerks International Association , AFL-CIO,
intervened in this proceeding on the basis of an adequate showing of
interest.
Union Company also maintains a division known as
Grand Way which operates discount department
stores. Grand Way Division is further divided into
five area divisions (Empire, Central, Metropolitan,
Suburban, and Florida), which control geographic
areas identical to Grand Union's equivalent divisions
bearing the same names.
Grand Way Division of Grand Union is headed
by Executive Vice President Silvers, who replaced
George Darby in that job during the course of the
hearing herein. Silvers is assisted by a staff of
approximately 15 individuals with specific
responsibilities over various aspects of Grand Way's
operation for all Area Divisions. In addition there is
an Area Supervisor for each of the five Area
Divisions.
The Metropolitan Area Division of Grand Way,
herein involved, covers the State of Connecticut and
the five New York State Counties of the Bronx,
New York, Westchester, Dutchess, and Putnam.
Located in the southwest portion of the State of
Connecticut are the six stores of the Metropolitan
Area Division which the Employer asserts as the
smallest appropriate unit. The Waterbury store,
sought herein by the Petitioner, is the most centrally
located of these six stores. It is approximately 22
miles southwest of the store in New Britain, 15
miles southwest of the Bristol store, 29 miles
northeast of the Danbury store, and about 30 miles
north of the stores in Stratford and West Haven.
Although the record reveals a certain overlap due to
the smallness of the geographical area involved and
perhaps to the density of the population in the
region , it is clear that each store serves essentially a
different and distinct economic area.2
The record indicates that there has been some
history of collective bargaining which we do not
deem controlling herein. The Petitioner currently
represents certain employees of Grand Union's
Metropolitan Area Division in a divisionwide unit,
but this appears to have resulted from an agreement
by the parties rather than from a unit
determination.' Petitioner formerly represented a
unit of employees of Grand Way's Metroplitan Area
Division similar to that urged herein by the
Employer, but again that unit was the result of an
agreement by the parties and it was terminated
when the Petitioner and the Intervenor lost consent
elections in 1963 and 1964. The record further
indicates that another local of the Petitioner
currently represents a divisionwide unit of Grand
Way employees in the Suburban Area Division. All
of the above units were developed however, without
need for Board determination of the issue of
'Standard Metropolitan Stattsttcal Area prepared by the office of
Statistical Standards . Executive Office of the President , includes Stratford
in the Bridgeport Standard Metropolitan statistical area, West Haven in
the New Haven Metropolitan area , and New Britain and Waterbury as
separate standard metropolitan statistical areas . Neither Danbury nor
Bristol is included in the Waterbury (or any other described ) metropolitan
areas.
176 NLRB No. 28
THE GRAND UNION CO. 231
geographic scope of the unit. The parties simply
agreed, and the question of whether some other unit
might also be appropriate was never raised. It has
long been the Board's policy not to consider itself
bound by a bargaining history resulting from a
consent election in a unit stipulated by the parties
rather than one determined by the Board.4 We note
also that the above recounted bargaining history
involves in part employees not involved herein, and
that insofar as the unit urged by the Employer is
concerned a significant hiatus exists between the
prior bargaining and the present petition.` In
addition, even if this bargaining history might
indicate the possible appropriateness of a broader
geographic unit, it would not preclude a finding that
a unit limited to the Waterbury store might also be
appropriate."
Further, while also not controlling, we note that
a different result was reached in a recent case
involving these same parties which was concerned
with the Metropolitan Area Division store in
Danbury, Connecticut.' The Regional Director for
Region 2 resoled the same conflicting contentions
'by finding appropriate a unit limited to the single
Danbury store, and the Board by telegraphic Order
dated November 4, 1966, denied the Employer's
request for review of the Regional Director's
determination.'
The area supervisor for the Metropolitan Area
Division, Davidson, has an office located in the
Stratford, Connecticut, store. He is aided in his
general function of overseeing the six divisional
stores by personnel assigned to Grand Union's
co-extensive Metropolitan Area Division, who visit
the Grand Way stores while observing the Grand
Union markets. Directly under Davidson are the
general managers, or store managers of each
individual store, who in turn are assisted by
assistant general managers and by department
managers.
As is normal in this industry, there is a great deal
of control exercised centrally over the Employer's
operation.. In the instant case such control is
variously exerted by Grand Union headquarters,
Grand Way headquarters, or by Grand Way's
Metropolitan Division. Thus, Grand Way officials
with the aid of the Metropolitan Division area
supervisor, establish uniform prices, select
merchandise, choose sources of supply, develop
advertising and display policies and content
(including advertising for personnel), and decide the
timing and content of special sales . The area
supervisor determines inventory levels, while the
'it is noted that in the Metropolitan Area Division , three of the six
Grand Way stores including Waterbury, are located under the same roof
as a Grand Union Market.
'Mid West Abrasive Company, 145 NLRB 1665, 1667.
'See Macy's San Francisco , 120 NLRB 69.
'Haag Drug Company, Incorporated , 169 NLRB No. 111.
'Case 2-RC..14425, not printed in NLRB volumes.
'The Petitioner ultimately lost the resulting election.
various forms utilized at the stores to implement
such functions as purchasing, selling, and personnel
matters are uniform throughout the Employer's
operation and are provided either by Grand Union
or Grand Way. There is also a substantial degree of
acquisition of goods from a central warehouse in
Mount Kisco, New York. Pay levels and fringe
benefits are established by Grand Union and its
Grand Way Division and are uniform throughout
the Division, and seniority appears to be computed
on a companywide basis.
The Employer conducts periodic clinics and
special meetings, each one concerning problems of a
different department or section handling particular
products, and these provide some contacts among
the various stores' personnel. However, the record
reveals an inconsequential degree of personnel
interchange among the six Metropolitan Area
Division stores.' During the 52-week period between
August 15, 1967, and August 15, 1968, there were
17 permanent transfers among the six stores, of
which four were either into or out of the Waterbury
store. During the same 1-year period there were 123
temporary transfers among the six stores, of which
46 involved the Waterbury Store. In all instances
these figures involve all personnel, including
supervisors. Thus, there were fewer than 2.8
temporary transfers per week in the Division and
fewer than l per week into or out of Waterbury,
while there was only one permanent transfer every 3
weeks in the Division and only one permanent
transfer every 13 weeks involving Waterbury. It is
noted that the complement of employees at the
Waterbury store is 43 and the number of employees
in the Division is approximately 260.10
Central office personnel apparently visit the
various stores regularly about once a week and
communicate by telephone about once a day. Thus,
during a 24-week period beginning on March 1,
1968 (when Davidson assumed the position of Area
Supervisor), and ending in mid-August 1968.
Davidson visited the six stores in his division 199
times or approximately eight times a week.
Twenty-six of those visits were to the Waterbury
store -- approximately one visit per week. During
the same period, other Grand Way executives, not
specifically assigned to the Metropolitan Area
Division, visited the six stores 163 times and 19 of
those visits were to the Waterbury store. In total,
therefore, all six stores were visited by Davidson or
by an executive from Grand Way headquarters 362
times or an average of 15 times per week for all
stores or 2.5 times per week per store. The
Waterbury store was visited a total of 45 times or
slightly less than twice a week. In addition,
Davidson utilizes a telephone tie line to talk to the
'The record also indicates that goods averaging in value $2,000 per week
are transferred among the stores as needed . The normal weekly volume of
the Metropolitan Area Division is $300,000.
"Cf. Star Market Co.. Inc., d/b/a Dan 's Star Market. 172 NLRB No.
130.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
six stores in his responsibility about six to eight
times a day.
While there are a number of limitations placed on
the autonomy and authority of the store managers,
that which remains at the individual store level is, in
our view,- most significant. Further, even assuming
that the Area supervisor's visits Last an entire day (a
fact not revealed by the record), it is clear that the
individual store managers represent the highest level
of supervisory authority present in the stores for a
substantial majority of the time.
Thus, hiring of new employees is substantially
controlled by the store manager at the individual
store . An applicant is first queried by the store
manager as to what hours he is available. He then
fills out a standard application blank and is
interviewed by the manager, who then checks the
applicant's references and decides whether or not to
hire him. The manager may hire only in the clerk
classification and only at the base rate; a new
employee is considered probationary until a more
detailed reference check is made centrally and
clearance is secured from the bonding company."
The area supervisor subsequently interviews the
applicant, and it is possible that the store manager's
decision to hire might be reversed. Each new
employee must take an orientation course which is
established centrally but is given in the store by the
store manager.
The hours that each store remains open and the
total man-hours permitted to each store are set
centrally. However, the schedule of hours of the
employees at each store is made at the store level.
The specific schedule of hours each employee works
is decided upon and announced by the store
manager and his assistant subject to approval by the
area supervisor for conformity to State and federal
law and company policy. If an individual wishes to
change his hours of work, the decision is made
locally by the store hierarchy unless it involves a
deviation from company policy. If an employee
seeks time off, the store manager may grant him up
to I week. Leaves of absence of more than I week
must be approved by the area supervisor. Vacation
schedules are worked out at the store level by the
store manager, the store hierarchy and the
individual employees. If an irreconcilable conflict
arises, the area supervisor may be called in.
There are four ascending levels of discipline
provided for by the Employer: oral reprimands,
written reprimands, suspension , and discharge. An
oral reprimand may be given to an employee at the
store level without central approval. All other levels
of discipline must be approved in advance by central
authority. However, it is, of course, obvious that
such actions are initiated and recommended at the
local level.
We have noted previously': that such factors as
centralized bookkeeping, payroll records,
"All employees are bonded
purchasing, merchandising, advertising, and
inventory control are of little or no significance to
the issue before us, and see no reason to modify that
view to accord them greater weight at this time.
These functions are record keeping or administrative
in nature and do not directly affect the employees'
day-to-day work performance or concern the daily
matters which give significance to the community of
interest of employees in the store. We therefore look
to the authority of the store manager to handle such
matters as hiring and firing, grievances, and routine
daily problems.
Whether or not a proposed unit confined to one
of two or more retail establishments making up an
employer's retail chain or division thereof, is
appropriate is to be determined in the light of all the
circumstances of the case." The unit sought,
confined to the Waterbury store employees, is, of
course, presumptively appropriate." We conclude
that the evidence herein, taken as a whole, supports
that presumption. Thus, the Waterbury store is
geographically separated from the other stores in the
Division and essentially serves its own metropolitan
area; for a substantial majority of the time the store
manager is the highest level of management present
at the store and is in charge of its day-to-day
operations; the store manager exercises a marked
degree of control over hiring, hours, and discipline;
and there is only a small amount of permanent and
temporary interchange, which does not tend to
affect the stability of the single-store unit.
Accordingly, in all the circumstances and in light of
the principles enunciated in Haag Drug,15 we
conclude that a unit confined to the employees of
the Waterbury store is appropriate.
The Intervenor would include the assistant
manager, department managers, section heads,
bookkeepers, and certain commission salesmen
(more fully described below) while the Employer
and Petitioner would exclude them variously as
supervisors or because of lack of community of
interest with the employees sought by Petitioner.
The Assistant General Manager, appliance manager,
camera department head, merchandise section
manager, merchandise section head,
receiving-marking manager, receiving-marking head,
general merchandise bookkeeper, cash bookkeeper
and cashier sponsor are all responsible for the
day-to-day operations of their respective divisions,
departments, or sections. As such, they assign work
to employees responsible to them and direct them in
the performance of their work. We shall exclude
them from the unit found appropriate as
supervisors. The appliance salesmen and camera
salesmen are actively engaged in selling as opposed
to the unit employees who primarily stock and
"Haag Drug Co.. supra, Su, Market Co, d/b/a Dan 's Star Market,
supra
"Sav-On-Drugs , Inc, 138 NLRB 1032.
"Haag Drug Company, Incorporated, supra
"Ibid.
THE GRAND UNION CO.
service other self-service sections of the Employer's
operations. Unlike other employees, they are paid
on the basis , of commissions , and extra incentive
payments. We shall exclude them as lacking a
community of interest with the employees sought
herein.'"
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 3(b) of the Act: All full-time
and regular part-time employees of the Employer's
store located at Waterbury, Connecticut, engaged in
the handling and sale of goods, excluding the
general manager , assistant general manager, the
appliance manager, camera department head,
merchandise section manager, merchandise section
head, receiving-marking manager, receiving-marking
head, general merchandise bookkeeper, cash
bookkeeper, cashier sponsor, appliance and camera
salesmen paid on a commission basis, temporary
233
employees, seasonal employees, professional
employees, and supervisors as defined in the Act.
[Direction of Election" omitted from publication.]
"The record does not reveal the existence of any other office clerical
employees, parking lot attendants , porters, or employees of
concessionaries . Accordingly, although the Petitioner and Employer seek
exclusion of these categories, we shall make no unit determination
concerning them.
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Company.
394 U.S. 759. Accordingly, it is hereby directed that 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 L within 7
days of 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.