Almacs Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1969

176 N.L.R.B. 671 (N.L.R.B. 1969)

ALMACS INC. 671
Almacs Inc.' and Local 1325, Retail Clerks
International Association , AFL-CIO, Petitioner.
Case 1-RC-10425
June 13, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Francis V. Paone , Hearing
Officer. Following the hearing and pursuant to
Section 102 .67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure , Series 8 , as amended , and by direction of
the Regional Director for Region 1 , this case was
transferred to the National Labor Relations Board
for decision . Thereafter, the Petitioner and
Intervenors ' filed timely briefs.
Pursuant to the provisions of Section 3(b) of the
Act, as amended , the 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, including the
briefs filed herein , the Board finds:
1. The Employer is a Rhode Island corporation
engaged in the retail sale of food products. It
operates several stores in Massachusetts and Rhode
Island . Employer has an annual volume of sales in
excess of $500,000. It receives from outside the
State of Rhode Island products valued in excess of
$50,000. It also receives from outside the
Commonwealth of Massachusetts products valued in
excess of $50,000.
We find that the Employer is engaged in
commerce within the meaning of the Act, and that it
will effectuate the purposes 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 Section
9(cXl) and Section 2(6) and (7) of the Act.
Both the Petitioner and the joint Intervenor have
current collective-bargaining agreements covering
multistore units in the Employer ' s chain .' Intervenor
contends primarily that the Fairhaven,
Massachusetts, store, which is the store involved in
this proceeding, is an accretion to its units and that
Intervenor Local 2's contract4 is a bar to this
proceeding. Petitioner asserts that any accretion
would be to its unit. Alternatively, if the Board finds
no accretion, each seeks to add the employees of the
Fairhaven store to its multistore unit by Board
election. Although the Employer asserted that the
Fairhaven employees come under Intervenor Local
328's contract unit by accretion, the Employer
declined to present evidence in support of this
contention , indicating its intent to abide by the
decision of the Board.
Petitioner's current agreement covers two stores
in New Bedford, Massachusetts. The first New
Bedford store has been represented by Petitioner
since 1958 . A second New Bedford store was opened
in late 1968 and added to the Petitioner ' s contract
unit by agreement of the parties . Petitioner's
collective-bargaining agreement, having a term from
July 31, 1967 to July 31, 1970, extends recognition
to the Petitioner' s exclusive bargaining
representative status for "all [the Employer's]
employees covered by this agreement in its store or
(future) stores in the New Bedford Area."
The Intervenor's current contracts, together, cover
all the Employer's other stores. The Intervenor has
represented certain employees of Employer on a
multistore unit basis since 1952. The current Local
328 contract, executed September 22, 1967, has a
term running from May 8, 1967, to April 11, 1970.
In it the Employer recognizes Local 328 as exclusive
representative of "all store employees of the
Company, excluding the Company's stores located
in New Bedford and Bellingham, Massachusetts.. .
" The contract with Local 2, executed on the same
date and having a term running from July 8, 1967,
to April 11, 1970, extends recognition for "all store
employees in all stores of the Company, excluding
the Company's store or stores located in New
Bedford , Massachusetts , and Rhode Island...."
The Employer's administrative office and
warehouse at East Providence , Rhode Island, is
centrally located in relation to the geographic
boundaries of the chain . There it maintains payroll
and personnel records, screens employees hired
initially by local store managers, passes on
promotions initiated by store managers, and
determines labor policies . Final decisions with
respect to transfers of employees from one store to
another and changes from part-time to full-time
status are also made at the central office. There is
no evidence of temporary interchange of employees
between stores. It was estimated that there were
' The name of the Employer appears as amended at the hearing.
'Local Unions 328 and 2, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, jointly intervened in this case. At
the hearing, they declined, through their attorney , to assert any interest
other than a joint interest . Accordingly, we herein treat the two Locals as
joint Intervenor.
'Whit the precise number of stores in the chain is not specified, it
appears from the record that Employer has 9 stores in Massachusetts and
16 or 17 in Rhode Island.
'Each local of the joint Intervenor has a separate collective-bargaining
agreement with the Employer roughly corresponding to its local
jurisdiction.
176 NLRB No. 127
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between 100 and 200 personnel adjustments made
throughout the chain employing approximately
1,900 employees during the past year . This includes
permanent transfers of employees and supervisory
personnel between stores, and adjustments in
working hours from part to full-time status .' Other
administrative functions handled at Providence
include choice and assignment of store managers,
choice and purchase of merchandise , advertising,
banking , and pricing policies.
The Employer delegates to the store manager
important responsibilities and significant autonomy
in the operation of his store . Thus , the store
manager hires both full-time and part-time
employees subject to investigation and final approval
by the central office, and effectively recommends
pay increases , promotions and discharges. He
schedules employee hours , checks time cards,
establishes vacation schedules , handles customer
complaints, is accountable for cashing of customers'
personal checks, has the key to the store and the
combination to the safe , and is in charge of the
day-to-day operations of the store . The manager
purchases approximately 15 percent of the
merchandise he stocks , primarily perishables and
produce from authorized vendors , and supervises the
setting up of displays in his store.
The Fairhaven store was opened in January 1969,
with new equipment . Employees to staff the store
were hired from the immediate vicinity. Although
Fairhaven is adjacent to New Bedford, and is within
the New Bedford metropolitan area , the store is
approximately 6 miles from the New Bedford stores.
Other stores of the Employer are located distances
ranging approximately 20 to 40 miles from
Fairhaven.
The facts set forth above demonstrate, and we
find , that the Fairhaven store is not an accretion to
any of the existing multistore units.' In reaching this
conclusion , we rely particularly on the fact that
Fairhaven does not comprise, with any of the
existing units , a functionally integrated subdivision
of the Employer' s operation ; that the store has
separate immediate supervision ; and that its
employees who were recruited locally and live within
the immediate community , are not subject to
substantial temporary interchange with those in
other stores. Accordingly, we find no bar to the
conduct of an election herein.'
4. The following employees of the Employer may
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act: All full time and regular part-time
'A substantial percentage of the employee complement is part-time,
consisting of virtually all students . As an example it appears that of the 52
employees of the Employer's Fairhaven,
Massachusetts , store , excluding all supervisors and
guards as defined in the Act. However, as the
participating unions seek to represent these
employees as part of their respective existing
multistore units, which are also appropriate, we
shall direct a self-determination election in the
above voting group. If a majority of the employees
in the voting group cast their ballots for the
Petitioner, they will be taken to have indicated their
desire to be included in the existing multistore unit
in the New Bedford area currently represented by
the Petitioner , and the Regional Director is
instructed to issue a certification to this effect. In
the event that a majority of the valid ballots are cast
for the joint Intervenor, the employees will be
deemed to have indicated their desire to be
represented jointly by Amalgamated Meat Cutters'
Local 328 and Local 2 in a separate , single-store
unit .' In this event , the Regional Director will issue
a certification to that effect. If the majority of the
employees in the voting group cast their ballots for
neither of the above-named labor organizations, they
will be taken to have indicated their desire to be
unrepresented by any labor organization on the
ballot , and the Regional Director will issue a
Certification of Results of Election.
[Direction of Election' omitted from publication.]
employees at Fairhaven, 30 are part-time employees who attend local high
schools.
'See Spartans, Inc., 173 NLRB No. 186.
'See Warehouse Markets. Inc., 174 NLRB No. 70, Super Markets
General Corporation. d/b/a Shop-Rite. 170 NLRB No. 61;
Anheuser-Busch, Inc.. 170 NLRB No. 5; Beacon Photo Service, Inc., 163
NLRB No. 98.
'If within 5 days after the issuance of this Decision and Direction of
Election either joint Intervenor in writing to the Regional Director requests
leave to withdraw from the ballot, the Regional Director is authorized to
grant such request and to revise the ballot accordingly, and in the event
that a majority of the employees in the voting group cast their ballots for
the Intervenor remaining on the ballot, they will be taken to have indicated
their desire to be represented by the remaining Intervenor in the existing
multistore unit represented by that Intervenor and the Regional Di rector is
directed to issue a certification to that effect.
'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 I 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.