Buy Low Supermarket, Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1961

131 N.L.R.B. 23 (N.L.R.B. 1961)

BUY LOW SUPERMARKET, INC. 23
tions for parts to be manufactured and requisitions for parts to be
purchased. After completion of the production process the contract
planner prepares the shipping authorization. Production and as-
sembly time is arithmetically computed and the quantity of component
or spare parts is determined by consulting either the estimate sub-
mitted by the engineering department or a production parts list pre-
pared by the engineering department. Although the Employer
encourages contract planners to study technical subjects, no special
education is required to qualify for assignment to this classification,
and none of the work required of contract planners appears to require
the specialized type of training usually acquired in colleges, technical
schools,, or through special courses. Of the nine contract planners
presently employed one has completed 3 years of high school, six are
high school graduates, one attended college for 1 year, and one has a
-liberal arts college degree. The work of these individuals does not
appear to involve independent judgment but rather the type of rou-
tine judgment as would be exercised by administrative office clerical
employees 3
From the foregoing it is clear that the employees involved neither
possess the specialized training nor exercise the independent judgment
contemplated by- our standard for technical employees.' We find,
therefore, contrary to the Petitioner, that the contract planners are
not technical employees and we shall dismiss the petition .5
[The Board dismissed the petition.]
CHAIRMAN McCuLLOCH took no part in the consideration of the
above Decision and Order.
' See Allss -Chalmers Manufacturing Company-Pittsburgh Works, 128 NLRB 87.
4Ladssh Company, 126 NLRB 555, 564; Litton Industries of Maryland, Incorporated,
125 NLRB 722.
5 In view of our finding herein , we deem it unnecessary to pass upon the other conten-
tions of the Employer regarding the inappropriateness of the unit.
Buy Low Supermarket , Inc.' and Department Store, Warehouse,
Retail Restaurant Union , Local 100, Petitioner . Case No.
13-RC-7361. April 6, 1961
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 Robert G. Mayberry, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed .2
1 The name of the Employer appears as corrected at the hearing
2Intervenor , Local 1460, Retail Clerks International Association , AFL-CIO, inter-
vened on the basis of a contractual showing of interest . The Petitioner objects to the
131 NLRB No. 4.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [Members Rodgers, Leedom, 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 organizations involved claim to represent certain em-
ployees of the Employer.
3. We find that a question affecting commerce exists concerning
the representation of employees of the Employer within the meaning
of Section 9(c) (1) and Section 2(6) and (7) of the Act.
The Petitioner seeks a unit of employees at the Employer's Gary,
Indiana, supermarket. The Intervenor moved to dismiss the petition
alleging two contracts as a bar to the petition. In 1957, Buy Low, Inc.,
began operations at a supermarket in Hobart, Indiana, a suburb of
Gary, Indiana. Both Edward Green and Abraham Roth, each owning
50 percent of the capital stock, managed the store. On December 1,
1958, a contract with the Intervenor was executed to run until No-
vember 30, 1960, covering "Buy Low," i.e., the Hobart store. At the
time this contract was negotiated, this was the Employer's only store.
In December 1959, Green and Roth jointly opened in Gary, Indiana,
Buy Low Supermarket, Inc., which is the subject of the present pe-
tition. Green remained as manager of the Hobart store and Roth
assumed the management of the Gary store. On August 11, 1960, a
contract was executed with the Intervenor, effective from September 1,
1960, to August 31, 1962, expressly covering the Hobart store, and not
the Gary store. As more fully described below, there are factors which
militate against a finding that the Gary store was an accretion to the
Hobart store, such as the separate supervision, separate locations, and
lack of employee interchange. Although both stores deal in the same
type of merchandise, we find that the Gary store is a new operation and
not an accretion to the Hobart store. Consequently, we find the De-
cember 1, 1958, contract is no bar, as it was negotiated prior to the
establishment of the Gary store and does not cover the Gary store s
Nor does the August 11, 1960, contract by its terms cover the Gary
store. Moreover, the August 11, 1960, contract was made effective after
the filing of the petition on August 17, 1960, and it is settled that the
effective rather than the execution date is controlling for contract-bar
purposes.' Therefore the petition was timely filed with respect there-
intervention on the ground that the employees involved herein are not covered by the
contract asserted by the Intervenor In view of the fact that the Intervenor takes the
position that the contract covers the employees sought, we find it has a colorable claim to
representation sufficient to justify its intervention . See National Cylinder Gas Com-
pany , 100 NLRB 768
8 See Miratile Manufacturing Company, Inc., 124 NLRB 48
* See Benjamin Franklin Paint & Varnish Co, 124 NLRB 54; East Tennessee Packing
Company, 122 NLRB 204
BUY LOW SUPERMARKET, INC. 25
to. Accordingly, we find there is no contract barring the petition and
the Employer's motion to dismiss on this ground is hereby denied.
4. The Petitioner seeks a unit of all employees at the Employer's
supermarket in Gary, Indiana, excluding meat department employees,
guards, and supervisors as defined in the Act. The Intervenor con-
tends that the appropriate unit should include both the Gary and
Hobart stores. Alternatively, the Intervenor contends that a history
of multiemployer bargaining among the Employer herein, Buy Low,
Inc., and several additional grocery stores, renders the single-store
unit sought by the Petitioner inappropriate. The Employer takes no
position as to the stores to be included in the unit. All parties stipu-
late to the composition of the unit, and are in agreement that the meat
department employees should be excluded because they are currently
represented at both the Hobart and Gary stores by another union and
both stores are covered by individual contracts.'
First, we reject the Intervenor's alternative unit contention for a
multiemployer unit of various independent grocers in the Gary, In-
diana, area, because the record shows that the contract evidencing the
multiemployer bargaining became effective after the petition in this
case was filed on August 17, 1960. A bargaining history of such brief
duration and not predicated upon a Board certification does not war-
rant the finding that only a multiemployer unit is appropriate.6
We turn to the other unit contentions. As already shown, the De-
cember 1, 1958, contract was executed before the opening of the Gary
store. Thirty days after the opening of that store, the Intervenor
requested and received permission to solicit membership among the
employees at the store. The Intervenor secured frofn a number of
employees checkoff authorizations, and thereafter dues were deducted
and submitted by the Employer to the Intervenor. It also appears
that Buy Low Supermarket, Inc., adhered to all the terms of the
December 1, 1958, contract, although it never adopted that contract
in writing. On April 26, 1960, prior to the expiration of the Decem-
ber 1, 1958, contract, the Intervenor sent a letter to various independ-
ent grocers in the Gary, Indiana, area, inviting the grocers to negoti-
ate as a group. Thereafter, from June 8 through August 11, 1960,
meetings were held between the Intervenor and these grocers. Roth
attended only the initial meeting, and Green attended all meetings as
a negotiator for the grocers. The meetings culminated in the August
11, 1960, contract. Green executed such contract naming as a party
Buy Low, Inc., and he specifically requested a separate copy of the
5 Roth and Green also own a minority interest in another store called Buy Low Food,
Inc., opened in Gary , Indiana , in August 1960. However, they take no part in the opera-
tion of this store beyond serving in an advisory capacity . None of the parties seeks to
include this store in the unit.
" Miron Building Products Co., Inc . et al ., 116 NLRB 1406.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract for execution by Buy Low Supermarket, Inc. However, a
separate copy of this contract was never submitted to Buy Low Super-
market, Inc., for signature prior to the filing of the petition. Thus,
the record shows that Green negotiated the August 11, 1960, contract
not only on behalf of various grocers in the area but also for Buy Low,
Inc., and Buy Low Supermarket, Inc. Further, the record shows that
Roth handles labor relations for the meat departments of both stores
and Green for the grocery departments of both stores. In view of
these circumstances, and the common ownership of the two corpora-
tions, the geographical proximity of the stores, the centralized control
of labor relations, and the similarity of operations and employee work-
ing conditions, we find that Buy Low Supermarket, Inc., and Buy
Low, Inc., constitute a single employer for the purposes of the Act,7
and that a unit of these two stores may be appropriate. However,
there are factors here which indicate that the smaller unit of the Gary
store which Petitioner seeks may also be appropriate. Thus, the em-
ployees of each store are under separate supervision and no inter-
change of employees between the stores has been shown. Further, the
Board normally permits employees at a new plant to decide whether
or not they wish to be separately represented.' Accordingly, we be-
lieve that, in these circumstances, either a unit limited to the Gary
store, or a two-store unit of the Gary and Hobart stores, may be ap-
propriate for the purposes of collective bargaining. Before making
any final unit determination we shall first ascertain the desires of the
employees as expressed in the election directed hereinafter.
Accordingly, we shall direct an election in the following voting
group : All employees employed at the Employer's establishment in
Gary, Indiana, known as Buy Low Supermarket, Inc., excluding all
meat department employees, guards, and supervisors as defined in the
Act.
5. If a majority of the employees vote for the Petitioner, they will
be taken to have indicated their desire to constitute a separate unit,
and the Regional Director is instructed to issue a certification of rep-
resentatives to the Petitioner for that unit, which the Board, under
such circumstances, finds to be appropriate for purposes of collective
bargaining. If a majority of the employees in the voting group cast
their ballots for the Intervenor, they will be taken to have indicated
their desire to be represented by the Intervenor as part of a two-store
unit together with the employees of Buy Low, Inc., Hobart, Indiana,
and the Regional Director will issue a certification of the results of
the election to that effect.
[Text of Direction of Election omitted from publication.)
' Dohrmann Commercial Company , et al., 127 NLRB 205.
8 See Miratile Manufacturing Company, Inc., supra.