United Stores of America

National Labor Relations Board - Board Decisions

Aug 29, 1962

138 N.L.R.B. 383 (N.L.R.B. 1962)

UNITED STORES OF AMERICA AND COLLINS MART, INC. 383
8. The Employer contends that the State Commission is without
jurisdiction over the Employer because this Board has jurisdiction
and will exercise jurisdiction over the Employer.
On the basis of the above, the Board is of the opinion that:
1. The Employer is engaged in a nonretail business of tree surgery
and landscaping in Reading, Massachusetts.
2. During each of the calender years 1959, 1960, and 1961, the Em-
ployer has rendered services in excess of $50,000 to the public utilities
heremabove named, each of which does an annual gross business in
excess of $250,000.
3. The current Board standard for the assertion of jurisdiction over
nonretail enterprises within its statutory jurisdiction requires an an-
nual minimum of $50,000 out-of-State inflow or outflow, direct or
indirect. Siemens Mailing Service, 122 NLRB 81, 85. "Indirect out-
flow refers to ... services to users meeting any of the Board's juris-
dictional standards except the indirect outflow or indirect inflow
standard."' The current standard for the assertion of jurisdiction
over public utilities requires an annual minimum gross volume of busi-
ness of at least $250,000 1 and each of the public utilities involved here-
in meet this Board's standard. As the Employer's services to these
public utilities constitute "indirect outflow" as the term is defined by
the Board in Siemens and as such services are in excess of $50,000 an-
nually, the Employer's operations meet the current Siemens standard
for the assertion of jurisdiction over nonretail enterprises.
Accordingly, the parties are therefore advised, under Section 102.103
of the Board's Rules and Regulations, Series 8, as amended, that, on
the facts here present, this Board would assert jurisdiction over the
Employer's operations with respect to labor disputes cognizable under
Sections 8, 9, and 10 of the Act.
I Saemons dfaiUng Service, supra
2 Siou , Valley Empire Electric Association , 122 NLRB 92
United Stores of America and Collins Mart, Inc.' and Local 534,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Petitioner. Case No. 14-RC-49310. August
29, 1962
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 Victor I. Smedstad, hearing
I At the hearing , the petition , which named United Stores of America as the Employer,
was amended at the Petitioner's request to substitute Collins Mart, Inc , as the Employer:
Both named Employers appeared at and participated in the hearing . On the basis of the-
findings made below, we have amended the caption to show the names of both as the
Joint Employers of the employees here involved
138 NLRB No. 45.
384 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed 2
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 Fanning and
Brown].
1. United Stores of America, herein referred to as USA, owns and
manages a building that houses a discount department store open to
members only. It operates none of the 20 or more selling departments
in the store, which are independently owned and operated under leas-
ing arrangements. It does, however, employ at the store a general
manager, controller, janitor, cart boy, two sign shop workers, and
seven office clerical employees. Collins Mart, Inc., herein referred to
as Collins Mart, operates the grocery and meat sales department, the
only department here involved.
The Petitioner contends that Collins Mart is the employer of the
employees in the grocery and meat sales department. The Intervenor
contends that USA is the employer of all the employees in the store.
Neither Collins Mart nor USA took any position on this issue.
Under the provisions of the lease agreements between USA and the
department operators, no lessee may negotiate or execute a contract
with any labor organization without the written consent of the lessor.'
USA is thereby given control over the lessees' labor policies and agree-
ments. It has exercised this control by entering into a contract with
the Intervenor, after the petition herein was filed, "for and in behalf
of all licensees of its store," covering by its terms all employees at the
store except those already represented by another union.' Up to this
time there has been collective bargaining only as to the restaurant em-
ployees in the store. The above-mentioned contract with the Inter-
venor is not urged as a bar.
USA also has under the lease provisions, substantial control over the
working conditions of all the employees as it has authority to promul-
gate store rules regarding employee conduct, as well as authority to
require lessees to compel employee compliance therewith. Moreover,
USA can require lessees to discharge employees for major violations
of its rules, and USA must be notified of all hires and discharges by
2 Local 229 , Retail Clerks International Association , AFL-CIO, was allowed to inter-
vene at the hearing on the basis of a contract interest.
8 Paragraph 25 of the license agreement provides : "No lessee will enter into any negotia-
tions or agreements , oral or written, with any labor organization with respect to his em-
ployees without having the written consent of Lessor , provided that this does not conflict
with any Local , State or Federal Laws."
4 Schedule "A" of the contract, which sets forth employee wage rates , covers the grocery
employees but not the meat employees . Moreover, the Intervenor , in its brief and at the
hearing, conceded that its contract does not cover the meat employees nor the restaurant.
employees who are represented by another union not here involved.
UNITED STORES OF AMERICA AND COLLINS MART, ' INC. 385
lessees . On the other hand, the manager of Collins Mart, who reports,
directly to its parent company, Justrite Super Market, Inc., handles
such matters as hires, discharges, grievances, scheduling of hours,
rates of pay, and employee insurance for all the employees in the Col-
lins Mart department. Accordingly, it is clear that both USA and
Collins Mart exercise substantial control over the employment rela-
tionship of the employees in the department here involved. We find,
therefore, that USA and Collins Mart are joint employers of the em-
ployees in the grocery and meat sales department at the• USA store.'
We find, further, that the Employers are engaged in commerce within
the meaning of the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employers.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section
9(c) (1) and Section2(6) and (7) of the Act.
4. The Petitioner seeks a unit of employees in the grocery and meat
sales department at the USA store. The Intervenor contends that
only a storewide unit is appropriate. The Employers took no position.
Collins Mart has 37 employees, of whom 6 work in its meat section
and 4 in its produce section; there are also 6 stockers, 10 checkers, 10
sack boys, and an office girl. As noted above, the department manager
exercises direct control over its employees in day-to-day operations.
Unlike the other USA leased departments, Collins Mart does not stay
open on Sundays, the manager having refused to do so. Moreover, this
department keeps its own records of sales, controls its sown purchases,
has its own cashier and checkout service, has exclusive control over the
ordering and pricing of its merchandise, and operates entirely on a
profit basis. The Collins Mart employees, who do not transfer to, or
interchange with, employees of other lessees, punch a separate time-
clock. The wage rates of its grocery employees are higher than those
of employees of other departments. In view of all the indicia of sep-
arateness of the Collins Mart department from the rest of the store,
and the lack of any controlling bargaining history on a storewide
basis, we find that the following employees constitute a separate ap-
propriate unit for the purposes of collective bargaining : 6
All grocery and meat sales department employees employed by
Collins Mart, Inc., a department of United Stores of America, Collins-
ville, Illinois, including the head checker,' but excluding office clerical
5 Frostco gaper Save Stores, Inc, 138 NLRB 125.
9 Frostco Super Save Stores, Inc., supra.
4 The head checker checks cash and routinely directs the work of 10 checkers. As she
has no authority to hire and discharge , nor any of the other statutory indicia of super-
visory authority , we include her in the unit.
386 DECISIONS OF NATION--AL -LABOR RELATIONS BOARD
employees, professional employees, guards, the head meat cutter, pro-
duce department head, assistant manager, and all other supervisors a
as defined in the Act.
[Text of Directon of Election omitted from publication.]
8 The Petitioner contends that the Collins Mart section or department heads are non-
supervisory employees. The Intervenor and the Employers took no position on this matter.
As the head meatcutter, produce department head, and assistant manager possess the
authority to discharge employees, we `find that they are supervisors within the meaning
of the Act, and exclude them.
FWD Corporation and Associated Unions of America , Office and
Professional Workers Local 15 .1 Case No. 18-RC-4898. Au-
gust 30, 1962
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 Max Rotenberg, hearing of-
ficer. 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 McCulloch and Members Fanning and Brown].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act. 6
2. The Petitioner claims to represent certain employees of the Em-
ployer.
3. On March 31, 1942, the Petitioner was certified as the collective-
bargaining representative for a unit of office, local sales, technical,
and other salaried employees at the Employer's plant at Clinton-
ville, Wisconsin. In July 1960 the Petitioner requested the Board to
clarify its certification to find that certain employees were included
within the certified unit. The Board ordered a hearing on the issues
raised by the motion for clarification and on May 6, 1961, issued its
Supplemental Decision and Order 2 in which it stated :
In view of the age of the certificate, the numerous changes from
the certificate's unit description made by the parties in the col-
lective-bargaining contracts negotiated since the certification, and
the exclusion of some or all of the individuals in dispute from some
or all of these contracts, we find that the unit for which the Peti-
tioner is bargaining representative is too indeterminate at this time
'The Petitioner's name appears as amended at the hearing.
z FWD Corporation, 131 NLRB 404.
138 NLRB No. 44.