Unishops of Clarkins, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1968

171 N.L.R.B. 1435 (N.L.R.B. 1968)

UNISHOPS OF CLARKINS, INC. 1435
Unishops of Clarkins , Inc. and Retail Clerks Inter-
national Association Local No. 698 , AFL-CIO'
and Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, District
Union 427.1 Case 8-UC-26
June 17, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
Upon a petition of Retail Clerks for clarification
of unit, duly filed on January 29, 1968, under Sec-
tion 9 ( b) of the National Labor Relations Act, as
amended , a hearing was held on February 15, 1968,
before Hearing Officer Richard A. Du Rose. On
February 20, 1968, the Regional Director for Re-
gion 8 issued an order transferring the case to the
Board . Both parties waived the filing of briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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. The rulings 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 Petitioner and the Intervenor are labor
organizations within the meaning of the Act and
both claim to represent certain employees of the
Employer.
3. In this clarification proceeding we are asked
to resolve the competing claims of Retail Clerks
and Meat Cutters for delicatessen employees in two
of the Employer's stores in Akron, Ohio. The facts
giving rise to the dispute are as follows:
The Employer started operations in 1962 at a
store named Clarkins Carrousel in Canton, Ohio.
Some of the departments were owned by the Em-
ployer, while 15 were leased . The grocery depart-
ment, which included within it the meat depart-
ment , was leased by C & C Foods, Inc. The
delicatessen department was leased and operated
by a firm called Disco.
The Retail Clerks claims that in the fall of 1966
C & C Foods became the lessee of the delicatessen
department. The Meat Cutters denies this to be fac-
tually correct. However, the testimony of the Em-
ployer's vice president, and of an employee in the
delicatessen department of the Canton store sup-
ports the position of the Retail Clerks in this re-
gard. In the latter part of 1962 the Meat Cutters
was recognized as the bargaining representative for
the meat department employees. In May 1962,
after an election, the Retail Clerks was certified as
the representative of the grocery department. In
June 1963, by voluntary recognition, after a card
check, the Retail Clerks was recognized as the
representative of all employees of Clarkins Car-
rousel's wholly owned and leased departments (in-
cluding the delicatessen) plus similar departments
at the Employer's stores at other locations, includ-
ing Wooster-Hawkins. Excluded from this unit were
employees in the meat department, grocery depart-
ment , beauty shop, barber shop, and garage.
Retail Clerks presently has two collective-bar-
gaining contracts with the Employer: (1) the
grocery department contract covering all Em-
ployer's stores in the Canton-Akron area, and (2)
all wholly owned and leased departments with the
exclusion of the grocery, meat, and some other de-
partments. The delicatessen employees at the Can-
ton store are in this unit, and the Retail Clerks
claims that the delicatessen employees at the Akron
and Wooster-Hawkins store are also within this unit
by way of accretion. The Meat Cutters represents
the meat departments of Employer's entire opera-
tions.
In July 1966 Clarkins merged with Unishop and
became the present corporation, Unishops of Clar-
kins, Inc. C & C Foods was eliminated. From July
1966 the food division, which encompassed the
grocery and meat department at the Canton store,
has been owned by Unishop. The delicatessen, in
November 1966, was leased to RLN Enterprise.
The Employer has operated other stores located
at South Main Street in Akron, on Cherry Street in
Canton, and a store in Kent, but none of these
stores ever had a grocery, meat, or delicatessen de-
partment.
In late November 1966, the Employer completed
an expansion of its wholly owned store located in
the Wooster-Hawkins Plaza, Akron, Ohio. The
Retail Clerks has been recognized as the bargaining
representative for the grocery department and the
Meat Cutters as the representative of the meat de-
partment. Prior to expansion, the Retail Clerks was
the only Union representing employees at this
Herein called Retail Clerks or Petitioner . intervene on the basis of a colorable claim to represent the employees
' Herein called Meat Cutters or Intervenor. Meat Cutters was allowed to sought by the Retail Clerks
171 NLRB No. 170
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store, and did so under its nongrocery contract.
On October 12, 1967, the Employer opened a
new wholly owned store located at 3200 Arlington
Road, Akron, Ohio. The Retail Clerks was im-
mediately recognized as the representative of all
employees other than the meat department and the
delicatessen department. The Meat Cutters was
recognized as the representative of the meat de-
partment.
Subsequent to the opening of the delicatessen in
the two Akron stores, the Employer and Meat Cut-
ters signed an addendum purporting to cover
delicatessen employees. The addendum states in
part:
Article A-Recognition-The Employer
recognizes the Union as the sole bargaining
agent for all employees in the Prepared Foods
Departments of its food stores in the counties of
... excluding supervisors, as defined in the Na-
tional Labor Relations Act, as amended. The
Prepared Foods Department has separate
facilities for the preparation of the foods for
"carry-out" (ready-to-eat) and for customer
sales and services on the premises.
Article B-Work Jurisdiction-Work ju-
risdiction at the store level for all fresh and
frozen meats, poultry, fish, rabbits, sausage and
smoked meats normally handled, processed,
and offered for sale in the meat departments of
stores remains with meat department em-
ployees.
According to the Meat Cutters, the reason for the
addendum was that the delicatessen department
services customers rather than being self-service as
in the case in the meat departments . However, the
Employer's representative stated on the record that
the Employer did not consider the aforesaid ad-
dendum to be binding on the issue of the placement
of the delicatessen employees.
The pertinent provisions of the Retail Clerks con-
tracts state:
A. The Non-Grocery Contract
1. Recognition-The Company hereby
recognizes the Union as the sole and exclusive
bargaining agent for and on behalf of all em-
ployees of the Company with respect to wages,
rates of pay, hours of work, and other condi-
tions bf employment, for the appropriate bar-
gaining unit herein described as follows:
2. All full time and regular part-time em-
ployees of Clarkin wholly-owned departments
and employees of all licensed departments, but
excluding store managers ... meat depart-
ment, grocery department, beauty shop, barber
shop....
B. Grocery Department Contract
Bargaining agent-The Employer recognizes
the Union as the exclusive bargaining agent on
all matters pertaining to wages, hours, and
general working conditions for all of its em-
ployees excepting executives, managerial and
supervisory employes.
At the Arlington store the meat department and
the delicatessen department are in the rear of the
grocery department and are located next to each
other. A customer can pay either at the delicates-
sen department or go through the general
checkout. Meat department products can be paid
for either at the meat department or grocery
checkout. At the Wooster-Hawkins store, the
delicatessen is located in the front of the store next
to the grocery, and the meat department is located
in the rear. The delicatessen department and the
grocery department each has its own checkout.
Delicatessen products are paid for only at the
delicatessen department.
There are approximately five to eight employees
in the delicatessen department of each Akron store
and eight in the meat departments. The products
sold at each delicatessen department are similar ex-
cept that perhaps more baked goods are sold at the
Wooster-Hawkins store. The delicatessen depart-
ment sells such items as sliced luncheon meats, bar-
becued chicken and ribs, prepared salads, and
baked goods. Each department, including the meat
and delicatessen departments, is supervised by a de-
partment head, who is excluded by the terms of the
contract. The parties stipulated that the employees
that are employed at the two stores in the delicates-
sen department generally have the same hours as
other employees in the other departments in both
of those stores.
The Retail Clerks and the Meat Cutters both
claim that all questions concerning representation
of delicatessen employees have been settled by
their respective contracts. As additional support for
its position , Retail Clerks points to its representa-
tion of the delicatessen department operated by
Clarkins at the Canton store,' for the last 5 years,
and its representation of delicatessen departments
in three other similar stores in the Akron area.
The Meat Cutters alleges the reason it never
represented the delicatessen department at the
Canton store was that the delicatessen was not in
9 At the Canton store , the delicatessen department is located near the
grocery and rings up its sales . It does not sell bakery items or prepare food.
The meat department is in the rear of the grocery department
UNISHOPS OF CLARKINS, INC
operation at the time the Union was recognized as
the bargaining agent for the meat department.
Further, C & C Foods did not operate, own, or con-
trol, nor has it ever operated, owned, or controlled,
the delicatessen operation. Additionally, the Meat
Cutters states that in two of the three stores where
the Retail Clerks claims it represents the delicates-
sen department , the delicatessen departments have
closed and the work theretofore performed in the
delicatessen department is now done in the meat
department. Further, the Meat Cutters states that in
the Akron-Canton area there are approximately
115 stores in which the Meat Cutters represents the
meat departments and that the type of work done
in the delicatessens at the Employer's stores is
similar to the type of work generally done in meat
departments.
Neither Union is certified by the Board as
representative of employees in the two Akron
stores ; however, neither Union disputes the fact
that the Employer recognizes each as the bargain-
ing agent for the employees covered by its respec-
tive contracts as set forth above.
As indicated above, the issue facing us is whether
the employees in the delicatessen departments,
which, together with the grocery and meat depart-
ments , constitute the foodstore segment of the
Arlington and Wooster-Hawkins stores, are to be
deemed part of the multistore nongrocery unit
represented by the Retail Clerks or part of the
multistore meat department unit represented by the
Meat Cutters. Although delicatessen employees at
the Canton store are included in the Retail Clerks
nongrocery unit, this is the result of historical
development.
Though the Board has traditionally found units of
all employees in a grocery supermarket to be pre-
sumptively appropriate for purposes of collective
bargaining ," it has also found , in appropriate cir-
cumstances , separate units of grocery department
and meat department employees to be appropriate.5
The circumstances in which separate units of meat
department employees have been established have
involved at the minimum separate supervision of
meat department employees, lack of interchange
between such employees and other employees in
the store , the inclusion in the unit of skilled meat-
4 The Great Atlantic & Pacific Tea Company, Inc., 132 NLRB 744.
Schaeffers Prospect /GA Store, 124 NLRB 1433.
American Stores Company, 80 NLRB 126, Mock Road Super Duper,
Inc., 156 NLRB 983.
6 171 NLRB No. 1.
I Priced-Less Discount Foods, Inc., dlbla Payless , 157 NLRB 1143.
8 We reject the Meat Cutters position that its "prepared foods ad-
dendum " is controlling and the delicatessen employees should be accretes
to the meat department unit based on the Employer 's recognition of the ju-
risdiction of Meat Cutters over the prepared food departments , in view of
language in the addendum indicating that the prepared food department is
1437
cutters with training and knowledge in the identifi-
cation and cutting of the great variety of meat cuts
from larger portions of carcasses , and the use of
similar knowledge in identification of grades and
cuts of meats for accurate labeling , weighing, and
pricing of cuts by the employees in this department.
In the instant case, the record does not indicate
that the delicatessen employees, though they han-
dle and slice coldcuts, have either the training in, or
the need to use, the skills required of employees in
the meat department. Moreover, they are not su-
pervised by the meat department supervisor, nor do
they interchange with such employees. In the
recent Ideal Super Markets case,6 the Board found
that delicatessen employees could not constitute a
separate appropriate bargaining unit, and could not
be added to the existing meat department unit
either by way of accretion or by way of a self-deter-
mination election. In Payless,7 an 8(a)(5) complaint
case, the Board included delicatessen employees in
a represented grocery department unit over the ob-
jection of another union seeking recognition. In
both of those cases, the Board concluded that
delicatessen employees' community of interest lay
with the grocery department employees rather than
with separately supervised more skilled meat de-
partment employees. Here too, we reach the same
conclusion, in view of the absence of common su-
pervision of delicatessen and meat department em-
ployees, the lack of interchange between the two
departments, and the fact that delicatessen em-
ployees need not possess, and do not utilize in their
work, the skills and knowledge required of meat de-
partment employees.8 Accordingly, we reject the
Meat Cutters contention that the delicatessen em-
ployees constitute an accretion to the existing meat
department unit. Inasmuch as the Retail Clerks
seeks to include the delicatessen employees in its
nongrocery unit rather than in its grocery depart-
ment unit, and we find such inclusion to be im-
proper, we shall dismiss the petition for unit clarifi-
cation filed herein.9
ORDER
It is hereby ordered that the petition be, and it
hereby is, dismissed.
distinct and separate from the delicatessen department.
' Although our decision bespeaks the appropriateness of the inclusion of
the delicatessen employees in the grocery department unit, we do not
hereby clarify that unit because there is substantial indication in the record
that the delicatessen departments in these stores were staffed at the time
the Employer extended recognition to the Retail Clerks for the grocery de-
partment employees . Accordingly , it may be that inclusion of these em-
ployees by way of unit clarification of the grocery department unit rather
than by affording the delicatessen employees an opportunity for self-deter-
mination on this issue is an inappropriate way to proceed.