The Great Atlantic and Pacific Tea Co., Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1960

128 N.L.R.B. 342 (N.L.R.B. 1960)

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not select any of the labor organizations involved herein, and a
majority in voting group (2) votes for the Joint Petitioners or the.
Grain Millers,6 the latter group shall constitute an appropriate unit,
and may be represented by that labor organization. The Regional
Director is instructed to issue the appropriate certification or certi-
fications in accordance with the outcome of the elections.?
[The Board dismissed the petition in. Case No. 36-RC-1502.]
[Text of Direction of Elections omitted from publication.]
O As indicated above, the Meat Cutters does not wish to represent a separate unit of
truckdrivers.
'For the reasons indicated by the majority in Waikiki Biltmore, Inc., d/b/a The
Waikiki Biltmore Hotel, 127 NLRB 82, we have not provided for pooling of the votes in
the elections directed herein.
The Great Atlantic and Pacific Tea Company , Inc. and Local
No. 442, Amalgamated Meat Cutters and Butcher Workmen
of North America , AFL-CIO, Petitioner. Case No. 10-RC-4610.
July 27, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Lovic A. Brooks, Jr., hearing
officer. The hearing officer 's rulings made at the hearing are free from
prejudicial error 1 and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor'
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members'
Bean and Fanning].
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 em-
ployees of the Employer.
I We believe it would have been better practice for a . different hearing officer , to have
been , assigned to this case , as the 'hearing officer had also acted as counsel for the General
Counsel in a related case . However, the failure of the hearing officer to disqualify him
self, in response to a motion by the Petitioner , did not in itself, constitute prejudicial
error, and , there is no showing that the Petitioner was in fact prejudiced by the conduct
of the hearing officer . See International Longshoremen's - and Warehousemen's Union,
Local 8, et al. (General Ore, Inc.), 124 NLRB 620.
sThe Employer 's motion that the Board take official notice of Case No. 10-'CA-4254, a
related case now before a Trial Examiner pending issuance of his Intermediate Report,'
is denied , Although the Board may take official notice of its own proceedings , there is no
showing that the record In that case contains anything relevant to the issues herein which
is not in the instant record. The Employer's posthearing motion to reopen the record is
denied because it lacks sufficient specificity to establish that a further hearing is -required -
with respect to the changes which have assertedlytaken place since the hearing.
128 NLRB No. 22.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 343
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Petitioner iseeks a multistore unit of all full-time and regular
part-time meat department employees at the stores of the Employer
located in Augusta, Georgia, at 1024 Greene Street, 464 Greene Street,
and 1713 Walton Way, excluding all other employees, office clerical
employees, professional employees, meat market managers,' guards,
and supervisors as defined in the Act. The Employer is in basic agree-
ment with the Petitioner, except that it contends that only separate
single store units are appropriate.
The three stores here sought were, at the time of the hearing, all the
stores of the Employer in the Augusta, Georgia, metropolitan area.
They are a part of the Employer's Atlanta unit, which consists of some
95 stores. Personnel policies for all stores are uniform and are formu-
lated by the Atlanta unit. The meat superintendent in the Atlanta
unit has under him a number of area meat isupervisors who oversee the
meat departments of stores in their territory. There is an area meat
supervisor located in Augusta who oversees some 15 stores, which are
at varying distances from Augusta, ranging from approximately 25
miles to approximately 125 miles. Although there are some transfers
of meat department employees from stores in Augusta to other stores
under the area meat supervisor, transfers between stores in Augusta are
much more frequent. All stores under the area meat supervisor, in-
cluding those in the requested unit, are centrally supervised, are sub-
ject to centralized labor relations policies, employ corresponding
classifications of employees, and offer the same working conditions,
rates of pay, vacations, and insurance plans.
As the Board has held, absent unusual circumstances, the appropri-
ate unit for retail chain store employees should be all employees within
the categories sought who work "within the Employer's administrative
division or geographical area," 4 and, as there are no unusual circum-
stances here, we find no merit in the Employer's contention that only
single-store units are appropriate. With respect to the scope of the
appropriate multistore unit the record, as set forth above, shows that
transfers within the requested unit are more frequent than transfers
between stores in that unit and stores outside that unit, and further
shows that the stores in the requested unit are all located in the Au-
gusta, Georgia, metropolitan area, in close proximity to each other,
whereas the Employer's other stores are located at substantial dis-
tances therefrom. Although the employees at all the stores under the
area meat supervisor have interests in common, and might therefore
constitute an appropriate unit, no labor organization seeks such a unit.
J The Petitioner amended its petition at the hearing to exclude meat market managers.
4 Daw Drug Co., lee , 127 NLRB 1316.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these circumstances we find that the employees in the stores in the
geographical area comprising the Augusta, Georgia, metropolitan
area,' have a substantial community of interest sufficient to warrant
their establishment as a separate unit, and that such an area unit,
rather than a unit of the stores in some larger administrative division
or geographical area , therefore constitutes the appropriate unit in
this case.°
At the outset of the hearing, the parties were in disagreement as
to the placement of meat market managers, the Petitioner contending
they were not supervisors and should be included with other meat
department employees and the Employer contending they were super-
visors who should be excluded. While the Petitioner later took the
position that they should be excluded because their interests were
more closely allied with management and different from other meat
department employees, it nevertheless continued to assert that they
were not supervisors. It is clear from the record that the meat mar-
ket managers responsibly direct meat department employees in the
performance of their duties and have the power to discipline em-
ployees for breach of the Employer's rules pertaining to work of the
employees. Accordingly, we find that they are supervisors within
the meaning of the Act, and we therefore exclude them from the unit.
The Petitioner urges that all regular part-time meat department
employees should be included in the unit. The Employer contends
that only those regular part-time employees who work 20 hours or
more per week should be included and that part-time employees work-
ing less than 20 hours per week are in fact casuals. As the parties
herein are in disagreement as to the placement of regular part-time
employees, it appears that regular part-time employees may at times
work less than 20 hours per week, and the record lacks evidence to
establish that the criteria advanced by the Employer will reasonably
insure that all regular part-time employees with sufficient interest
in the determination of a bargaining representative will have an
opportunity to register their choice, we shall, in accord with estab-
lished Board practice where the parties are not in agreement, include
all regular part-time employees in the unit?
5It may be, as suggested by the Employer 's posthearing motion to reopen the record
(footnote 2, supra ) and the Petitioner 's response , that a fourth store has been opened
by the Employer in the Augusta metropolitan area. As such a store would belong in the
unit, an election , including such store , if it has been opened, would in that event be
contingent on Petitioner 's submission of an adequate showing of interest in such unit.
6 ACF-Wrigley Stores, Inc., 124 NLRB 200; The Great Atlantic & Pacific Tea Company,
119 NLRB 603. We find, contrary to the Employer' s contention , that The Great Atlantic
& Pacific Tea Company, Case No. 10-RC-4450, unpublished , is not determinative of the
Instant case . In that case the Petitioner sought not only the stores in Augusta but two
additional stores in Aiken, South Carolina , a considerable distance from Augusta, Georgia.
Inasmuch as the Petitioner there did not seek to represent any unit in an administrative
division or geographic area, the petition was dismissed . Here, however, as found above,
the unit encompasses all the Employer ' s stores in a geographic area.
7 The Great Atlantic & Pacific Tea Company, 119 NLRB 603, 606-607.
AMERICAN DISTRICT TELEGRAPH COMPANY 345
In view of the foregoing, we find that all full-time and regular
part-time meat department employees at the Employer's Augusta,
Georgia, stores, excluding all other employees, office clerical employees,
professional employees, guards, meat market managers, and other
supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
American District Telegraph Company and International Union
of Electrical , Radio and Machine Workers, AFL-CIO, Peti-
tioner. Case No. 1-RC-5916. July 28, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Norman D. Schwartz,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
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 Leedom and Members Rodgers and Jenkins].
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 representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Petitioner seeks a single unit of plant department employ-
ees of the Employer at its Somerville, Massachusetts, location, and
the employees of Bankers' Electric Protective Service, hereinafter
called Bankers. The Employer contends that the two companies are
separate corporate entities and should not be considered as a single
employer for unit purposes. The record shows that both companies
are Massachusetts corporations which, in turn, are wholly owned by
American District Telegraph Company, a New Jersey corporation.
They share common management and officers; they work out of the
same location, perform similar services, and utilize the employees of
both interchangeably. Under these facts we find that both corpo-
rations constitute a single employer within the meaning of Section
'For reasons stated below the Employer's motion to dismiss is denied.
128 NLRB No. 42.