Consolidated Foods Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1974

213 N.L.R.B. 360 (N.L.R.B. 1974)

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Lawson Milk Company Division , Consolidated
Foods Corporation and Retail Store Employees
Union Local 880 affiliated with Retail Clerks Inter-
national Association , AFL-CIO, Petitioner. Case 8-
RC-9221
September 18, 1974
DECISION ON REVIEW
By CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On March 26, 1974, the Regional Director for Re-
gion 8 issued a Decision and Direction of Election in
the above-entitled proceeding, in which he found ap-
propriate the Petitioner's requested unit of all full-
time and regular part-time employees at the
Employer's store located at 118 Moore Road, Avon
Lake, Ohio. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, the Employer
filed a timely request for review of the Regional
Director's decision, on the grounds , inter alia, that in
finding the petitioned-for unit appropriate he made
erroneous findings as to substantial factual issues and
departed from officially reported Board precedent.
Thereafter, the Petitioner filed a statement in opposi-
tion thereto.
The National Labor Relations Board, by telegraph-
ic order dated May 6, 1974, granted the request for
review and stayed the election pending decision on
review. Thereafter, the parties filed briefs on review.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
proceeding with respect to the issues under review,
including the parties' briefs on review, and makes the
following findings:
As found by the Regional Director, the Employer
operates approximately 750 retail food stores
throughout Ohio, and in parts of Michigan, Indiana,
and Pennsylvania. Its northern division is headquar-
tered at Cuyahoga Falls, Ohio; it is composed of ap-
proximately 278 stores, divided into 16 districts, each
of which contains from 12 to 25 stores . There is no
history of collective bargaining for any of the employ-
ees involved herein.
As indicated, the Regional Director granted the
Petitioner's request for a unit confined to the
Employer's Moore Road store, 1 of 16 stores in dis-
trict 35 of its northern division. In the alternative, the
Petitioner requested a unit broadened to encompass
four stores, the Moore Road store and the three other
stores under the supervision of Donna Cairns. As a
second alternative, it requested a unit further broad-
ened to include employees at all 16 stores in district
35. The Employer argues primarily that the appropri-
ate unit herein should comprise all 278 stores in its
northern division. As alternatives, it argues that
groupings of 240 and 201 stores, respectively, are
alone appropriate. For the reasons set forth below, we
reject the Petitioner's primary and first alternative
unit requests, and we find to be appropriate the unit
proposed as its second alternative, composed of em-
ployees at the 16 stores in district 35, which is an
administrative subdivision of the Employer's opera-
tions.
As to the Petitioner's primary request for a single-
store unit of Moore Road store employees, the follow-
ing facts persuade us that the presumption favoring
such unit is rebutted. As noted, the Moore Road store
is but one of the four stores in district 35 under the
immediate supervision and management of Donna
Cairns. These four stores are geographically close to
each other.' Cairns, who is currently based at the
Lorain store, generally divides her time among the
stores and visits the other three stores daily. Further-
more, during the 12-month period ending September
30, 1973, although, as found by the Regional Director,
19 clerks worked all or practically all of their time at
the Moore Road store, the Employer's statistics show
that there were 21 instances of temporary transfers of
Moore Road store employees to or from the other 3
stores under Cairns' supervision and 74 to or from the
other 15 district 35 stores? We find, therefore, in view
of the geographic proximity of the Moore Road store
to other stores, the degree of interchange between
employees at the Moore Road store and other stores,
and the fact that the store is but one of four stores
under the immediate supervision and management of
Donna Cairns, that a unit limited to the employees at
the Moore Road store is inappropriate.'
As to the Petitioner's first alternative unit request,
limited to the four stores under Cairns' immediate
supervision, we again find insufficient record support
therefor.
Of foremost importance, aside from the fact that
the employees in the proposed unit are under com-
mon immediate supervision, is that these four stores
constitute neither an administrative subdivision of the
Employer's chain of stores nor a distinct geographical
One of the other three stores is also in Avon Lake; one is in Bay Village,
about 5 miles from Avon Lake, and the other is in Lorain, about 9 miles from
Avon Lake . Lorain is about 12 miles from Bay Village.
2 The statistics on interchange supplied by the Employer count as two
separate instances a transfer out of and a transfer back to a clerk's home
store.
3 See Star Market Co., d/b/a Dan's Star Market, 172 NLRB 1393 ( 1968).
LAWSON MILK COMPANY 361
grouping of stores. We note particularly that no store
within district 35 is more than 5 miles from the next
closest store and that other district stores are inter-
spersed geographically among the four stores under
Cairns' supervision.
Furthermore, contrary to the Regional Director,
the record indicates that the district supervisor partic-
ipates substantially in the day-to-day control of the 16
stores within his district. He spends practically all of
his time at the stores within his district, visiting each
of them at least twice a week, even more often when
special problems develop at a particular store requir-
ing his immediate attention. During his store visits, he
carries out his responsibilities for the administration
and implementation of the Employer's policies, in-
cluding personnel matters, as well as compliance with
such policies 4 Specifically, while Cairns schedules the
hours of the clerks at her four stores, the district su-
pervisor is responsible for insuring that the total num-
ber of clerk-hours conforms with the employer's total
hours-sales guidelines. Also, although Cairns recom-
mends wage increases for clerks at her stores, the
district supervisor, by virtue of his personal observa-
tion of their performance during his frequent store
visits, has opportunities to make independent evalua-
tions of their merits. Any hires made by Cairns are
subject to his approval if the applicants have previous-
ly worked for the Employer and any rehires of former
employees must be approved by the Employer's per-
sonnel and security departments. When Cairns rec-
ommends the discharge of a clerk, the district
supervisor makes an independent investigation.' Only
the district supervisor has authority to discipline a
clerk. Although temporary transfers may be arranged
by store managers, it appears that the district supervi-
sor normally participates in such transfers and only he
may effectuate permanent transfers. As to merchan-
dising matters, the store managers order merchandise,
but the district supervisor places limits on quantities,
and only he may mark down prices. He also makes
written requests for store maintenance in nonemer-
gency situations.
With respect to employee interchange, during the
12-month period ending September 30, 1973, the
° There are district supervisors meetings held weekly at Cuyahoga Falls.
Each day the district supervisor for district 35, prior to leaving his home,
notifies headquarters of his work schedule for that day. The district supervi-
sor submits weekly reports known as "contact sheets" to the regional vice
president of operations for the northern division , in which he evaluates each
store's appearance , as well as sales and personnel performance . He also offers
guidance and suggestions to clerks and keeps updated records for personal
use as to the personnel in each of the stores.
5 The record indicates that district supervisors have reversed store manag-
ers' recommendations to discharge clerks to the extent of transferring the
clerk involved to another store . Such a transfer would occur when, in the
opinion of the district supervisor , the employee to be transferred is a "good"
clerk and a personality conflict may have motivated the store manager's
recommendation.
Employer's statistics show 189 instances of temporary
transfers of clerks at the four stores in question to or
from other stores in district 35.
Upon the foregoing, we find that a unit confined to
the employees at the four stores under the direction of
Donna Cairns is inappropriate. In so holding, we rely
especially on the facts that the four stores in question
constitute neither an administrative subdivision of the
Employer's chain of stores nor a distinct geographical
grouping, that the district supervisor participates sub-
stantially in the day-to-day supervision of the employ-
ees involved, and that there is significant interchange
among clerks at Cairns' four stores and other stores
in the district.
With respect to Petitioner's second alternate unit
request-all district 35 employees-we find, for the
following reasons, that such a unit is appropriate here-
in.
First and foremost, as stated, these 16 stores togeth-
er comprise an administrative subdivision of the
Employer's northern division. In addition, the stores
in district 35 are geographically proximate.6 Further,
the district supervisor, as previously found, exercises
substantial control over the day-to-day operations of
all district stores.' The role of the district supervisor
in matters such as hiring, discharge, transfer, schedul-
ing, discipline, evaluations, and wage increases for
district 35 employees, as well as his authority over
merchandising matters and security for the stores in
his district, provides the 16-store unit with a degree of
autonomy lacking in Petitioner's primary and first
alternate unit request.
With respect to employee interchange, during the
12-month period ending September 30, 1973, when
district 35 stores employed a total of 334 clerks, the
Employer's statistics show 204 instances of temporary
transfer of clerks solely among the 16 district stores.8
Also, during that period, when there were 3,444
clerks employed in the group of 201 stores urged by
the Employer as the minimally appropriate unit,
there were 517 instances of temporary transfers of
district 35 employees to or from other stores in that
201-store group .9
While it thus appears that a degree of interchange
exists between district 35 store employees and other
6 Although some stores in adjacent districts are close to district 35 stores,
no district 35 store , as above indicated , is more than 5 miles from the next
closest store in that district and the district supervisor visits several of them
each day, from his home.
7 As indicated by the Regional Director , although there are three zone
managers in the Employer 's northern division , they do not play an active role
in the day-to-day operations of individual stores.
8 Although , if the experience at the Moore Road store holds generally for
all stores, the great majority of clerks assigned to a store do not interchange,
the above statistics indicate that, on the average , there is one instance of
transfer per store per month.
9 An average of 0.22 instances of transfers of district 35 store employees
per store per month.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stores in the northern division, we do not believe it is
so significant as to render inappropriate the proposed
districtwide unit. As we conclude that the employees
in district 35 share a substantial community of interest
separate and distinct from the interests they may have
as part of broader groupings of the Employer's stores,
we find the unit as described below to be appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act: 10
All full-time and regular part-time employees
employed by the Employer at the stores located
in district 35 of its Northern division, excluding
all technical employees, office clerical employ-
ees, and professional employees, guards and su-
pervisors as defined in the Act.
10 See Gray Drug Stores, Inc., 197 NLRB 924 (1972 ); White Cross Discount
Centers, Inc., 199 NLRB 721 (1972).
Accordingly, the case is hereby remanded to the
Regional Director for the purpose of conducting an
election pursuant to the Decision and Direction of
Election, as modified herein, except that the payroll
period for determining eligibility shall be that imme-
diately preceding the date of issuance of this Deci-
sion."
11 As the unit found appropriate herein is broader than the unit sought by
the Petitioner , the Direction of Election is conditioned upon the Petitioner's
demonstrating , within 10 days from the date hereof , that it has an adequate
showing of interest in the broader unit found appropriate . In the event the
Petitioner does not wish to participate in an election in the unit found
appropriate , we shall permit it to withdraw its petition without prejudice
upon notice to the Regional Director within 5 days from the date of this
Decision . A corrected election eligibility list, containing the names and ad-
dresses of all the eligible voters, must be filed by the Employer with the
Regional Director for Region 8 within 7 days after the date of this Decision
on Review . 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 . Excelsior Underwear Inc., 156 NLRB 1236 (1966).