Food Fair Stores, Inc.,

National Labor Relations Board - Board Decisions

Aug 2, 1962

138 N.L.R.B. 1 (N.L.R.B. 1962)

Food Fair Stores, Inc.' and Amalgamated Meat Cutters & Food
Employees Union , Local 474, AFL-CIO, Petitioner
Food Fair Stores, Inc. and Amalgamated Meat Cutters & Food
Employees Union , Local 474, AFL-CIO, Petitioner
Food Fair Stores, Inc. and Amalgamated Meat Cutters, Butcher
Workmen and Affiliated Crafts of Local #1, Petitioner
Food Fair Stores, Inc. and Retail Store Employees Union Local
345, AFL-CIO, affiliated with Retail Clerks International
Union, AFL-CIO,' Petitioner. Cases Nos. 3-RC-2764, 3-RC-
2805, 3-RC-2790, and 3-RC-2794. August 2, 1962
DECISION AND DIRECTION OF ELECTIONS
Upon petitions 3 duly filed under Section 9 (c) of the National Labor
Relations Act, hearings were held before John M. Shea, Jr., hearing
officer. The hearing officer's rulings made at the hearings 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 these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
Upon the entire record in these cases,' 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
employees of the Employer 5
1,
The name of the Employer appears as amended at the hearing.
2 For reasons of brevity , the labor organizations here involved shall be designated in
the decision as follows:
(1) Retail Store Employees Union Local 345, AFL-CIO, affiliated with Retail Clerks
International Union , AFL-CIO, as "Retail Clerks Local 345 "
(2) Retail Food Clerks Union Local 1245 , Retail Clerks International Association, AFL-
CIO, as "Retail Clerks Local 1245."
(3) Retail Food Clerks Union Local 1500, Retail Clerks International Association, AFL-
CIO, as "Retail Clerks Local 1500 "
(4) Amalgamated Meat Cutters & Food Employees Union , Local 474 , AFL-CIO, as
"Meat Cutters Local 474."
(5) Amalgamated Meat Cutters , Butcher Workmen and Affiliated Crafts of North
America, AFL-CIO, District Union Local #1, as "Meat Cutters Local 1."
2 Pursuant to order of the Regional Director of the Third Region , Cases Nos . 3-RC-2764
and 3-RC-2805 were consolidated , and Cases Nos. 3-RC-2790 and 3-RC-2794 were con-
solidated For purposes of decision , we now consolidate Cases Nos . 3-RC-2764 and
3-RC-2805 with Cases Nos. 3-RC-2790 and 3-RC-2794 . Accordingly , we grant the
motion to consolidate filed by Retail Clerks Locals 1245, 345, and 1500
* The request for oral argument by Retail Clerks Locals 345, 1245, and 1500 is denied
as the record in this proceeding , Including the briefs of the parties , adequately presents
the issues and positions of the parties.
3 Retail Clerks Local 1500 was permitted to intervene in Cases Nos . 3-RC-2764 and
3-RC-2805; and Retail Clerks Local 345, Petitioner in Case No . 3-RC-2794 , was per-
138 NLRB No. 2. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer operates a chain of approximately 445 retail
grocery stores and supermarkets throughout the United States. Based
on geographical areas, its operations are divided administratively into
branches, which are, in turn, divided into districts composed of indi-
vidual stores.
Except for one store, all of the Employer's organized employees are
represented for purposes of collective bargaining in two distinct bar-
gaining units : One unit of meat department employees, and one unit
of all remaining employees, or grocery employees. The meat depart-
ment employees in all these stores are represented by locals of the
Meat Cutters, and the grocery employees are represented by locals of
the Retail Clerks. The one exception is a store in Rhode Island in
which there is representation on a storewide basis by a local of the
Meat Cutters.
The stores involved in the petitions are a part of district 6E, which
is a part of branch 6. Branch 6 consists of 62 stores in northern New
Jersey and upper New York State. Of the 62 stores in branch 6, 59
are presently covered by 2 collective-bargaining agreements. The
meat department employees in these 59 stores are represented in a
single unit by Meat Cutters Local 464, and the grocery employees are
represented in another single unit by Retail Clerks Local 1245. One
of the 62 stores, located at Peekskill, New York, is covered by con-
tracts with Meat Cutters Local 489 and Retail Clerks Local 1500, each
for its respective unit of meat department and grocery employees.
The other two stores, in Menands and Kingston, New York, respec-
tively, have no history of bargaining. They are the subject of the
present petitions.
In these petitions now before the Board, Meat Cutters Local 474
seeks separate units of (1) meat department employees, and of
(2) all other store employees, herein referred to as "grocery em-
ployees," at the Employer's Kingston, New York, store. In the
alternative, Meat Cutters Local 474 seeks separate residual units of
(1) meat department employees and (2) grocery employees, at both
the Kingston and Menands stores. Meat Cutters Local 1 seeks a
storewide unit of both meat department and grocery employees at the
Employer's Menands store. Retail Clerks Local 345, by petition,
seeks a unit of only grocery employees at the Menands store.
Retail Clerks Locals 1245, 345, and 1500 moved to dismiss all the
petitions, including the petition of Retail Clerks Local 345, on the
matted to intervene in Case No. 3-RC-2790. Retail Clerks Local 1245 was permitted to
intervene in Cases Nos . 3-RC-2790 and 3-RC-2794 on the basis of its contract covering
59 stores in the Employer ' s branch 6.
FOOD FAIR STORES, INC. 3
ground that the Kingston and Menands stores are accretions to the
branch 6, 59 -store, unit of grocery employees now represented under
the contract with Retail Clerks Local 1245 . In support of this posi-
tion, the Retail Clerks locals point to the history of bargaining on a
branchwide basis both with respect to the grocery employees, and
also with respect to the meat department employees . In the alterna-
tive, the Retail Clerks locals contend that units coextensive with the
six stores in district 6E may be found to be appropriate on the ground
that such units would coincide with an administrative division of the
Employer's operation . The Retail Clerks locals further contend that
even if units confined to single stores are found appropriate by the
Board , a separate election should be directed for grocery employees
at Menands.
The Employer also moved to dismiss all the petitions on the ground
that the only appropriate unit is composed of the six stores of district
6E. For the reasons discussed below, the motions of the Retail
Clerks locals and of the Employer are denied.
First, we turn to the contentions of the parties with respect to the
scope of the unit.
As indicated , the Kingston and Menands stores, named in the peti-
tions herein , are part of district 6E. District 6E includes four other
stores located respectively at Pearl River and Peekskill , New York,
and at Paramus and Fort Lee, New Jersey. District 6E, as also
noted above , is administratively a part of Branch 6. There is a branch
manager over the branch , a district manager over the district, and
an individual store manager over each store . In addition, there are
departmental specialists , also called supervisors , attached administra-
tively to the branch, who work directly with department heads in the
stores with respect to the technical aspects of merchandizing and
marketing . The record is silent as to how payroll and social security
recordkeeping are handled . It does show , however, that welfare bene-
fits are established at the Philadelphia , Pennsylvania , main office of
the Employer , and that wages , working conditions , and fringe bene-
fits, at least for the stores in district 6E, are substantially uniform.
A central warehouse located at Linden , New Jersey , services all the
stores in branch 6 as well as stores at two other branches.
The Menands and Kingston stores, located 60 miles apart , are new.
One was opened in July 1961 , and the other in January 1962. Em-
ployees at the two stores were hired locally . In the case of Menands,
locally hired prospective departmental managers were sent to Linden,
New Jersey , for training and were then returned to Menands. At
Kingston , a "cadre" of experienced employees from other stores in
branch 6 were brought in and worked there temporarily until the new
employees were sufficiently trained. They then returned to their
662353-63-vol. 138-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respective stores. There has been one permanent transfer from
Menands to Kingston and another from a New York City store to
Menands. Except for these instances, there has been no interchange
either between the Kingston and Menands stores, or between these two
stores and other stores in branch 6. Each store has separate im-
mediate supervision in the form of the store manager.
The contract in effect between the Employer and Retail Clerks
Local 1245 runs from February 1960 to September 1962, and is an-
nually renewable thereafter. This contract, by its terms, covers all
grocery employees "employed in its [the Employer's] stores within
the jurisdiction of the Local Union." The Employer's industrial
relations manager testified that recognition for the Kingston and
Menands stores was not granted to Local 1245 because it was believed
that the geographical jurisdictional area of Local 1245 stopped at
Pearl River, and did not include the Menands and Kingston stores.
The secretary-treasurer of Retail Clerks Local 1245 in Case No. 3-
RC-2790 asserted that the jurisdiction of his local included the
Kingston and Menands stores. However, he stated that the grant of
jurisdiction from his International to Local 1245 so as to include
Kingston and Menands did not take place until a date between
March 27 and 30, 1962. Moreover, Retail Clerks Local 1245 did not
demand recognition for the Kingston and Menands stores as an ac-
cretion under their branch 6 contract until March 30, 1962. It is
clear that the contract was executed in January 1960, before the
Menands and Kingston stores were opened, and that prior at least to
March 27, 1962, neither party considered that the existing branchwide
contract was applicable to these new stores.
On the basis of the foregoing, we find that the Kingston and Men-
ands stores herein are completely new operations and are not mere
accretions. As the Board normally permits employees at a new plant
to decide whether or not they wish to be represented in a separate unit,
we find that employees at each of these stores may constitute separate
units.6 In view of the circumstances and our determination herein,
we do not pass upon whether two-store residual units or a districtwide
six-store unit is appropriate.
The parties' contentions with respect to the composition of the units
herein, which are mentioned above, remain to be resolved. As indi-
cated, at the Kingston store, Meat Cutters Local 474 seeks separate
units of (1) meat department employees and (2) grocery employees.
If there is to be an election at the Kingston store among grocery em-
ployees, Retail Clerks Local 1500 desires to be on the ballot. At the
Menands store, Meat Cutters Local 1 seeks a storewide unit of both
6 Pay Leas Drug Stores , 127 NLRB 160; Rockingham Poultry Cooperative Inc., 113
NLRB 376; Buy Low Supermarket, Inc., 131 NLRB 23.
FOOD FAIR STORES, INC. 5
meat department and grocery employees, and Retail Clerks Local 345
seeks a unit of grocery employees.
The Employer takes no position with respect to whether separate or
combined units of meat department and grocery employees are appro-
priate. However, the Employer contends that all the store depart-
ment managers, including the meat, grocery, produce, and delicatessen
managers, and the head cashiers at both stores, and the seafood man-
ager at the Kingston store are supervisors and should therefore be
excluded from the units found appropriate. The Retail Clerks locals
contend that only the meat department managers are supervisors.
The Meat Cutters locals contend that none of the individuals alleged
by the Employer to be supervisors are, in fact, supervisors.
The meat department and grocery employees at the two stores per-
form the duties and have the traditional division of functions found
in such operations as those of the Employer. There is no history of
bargaining at the two stores.
With respect to the Kingston store, in accordance with Board
practice in cases of this type, and consistent with the pattern of or-
ganization in the Employer's stores, we find that separate units of (1)
grocery employees and (2) meat department employees are appro-
priate.7 In the case of the Menands store, on the record and in all the
circumstances of the case, particularly in view of a history of bargain-
ing in separate units of meat department employees and grocery
employees as well as storewide bargaining at the Rhode Island store,
we find that either one unit of both meat department and grocery
employees is appropriate, or, two separate units of meat depart-
ment employees and grocery employees, respectively, may be also
appropriate.8
The meat department manager at the Menands store is in charge
of a group of about 12 employees whom he directs and instructs. He
criticizes their work performance and, if an employee is not compe-
tent, lie reports this situation to the store manager. The meat de-
partment manager also establishes periods for work breaks, certifies
the accuracy of the time records, has employees correct erroneous
time records, authorizes the switch of days off, and must watch for
pilfering by employees. He has fired one employee in the past, which
firing remained in effect, although he was told he was not to fire in
the future. He apparently continues to have the authority to warn
employees for poor work performance, which he exercised in the case
of the employee whom he fired.
See The Great Atlantic & Pacific Tea Company, Inc, 132 NLRB 797 , Quality Markets,
Inc, 129 NLRB 904
e See The Kroger Company, 77 NLRB 370, Quality Markets, Inc, 129 NLRB 904,
Schaefers Prospect IGA Store, 124 NLRB 1433 ; Weis Markets , Inc, 116 NLRP. 1993
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the meat department manager at Kingston, there
are about 13 employees in his department. The personnel manager
testified that in branch 6 the meat department manager is responsible
for the operation of his department, trains new employees, assigns
work, and recommends discharge or retention of an employee. His
advice and recommendations in the latter respect are normally fol-
lowed. In addition, the personnel manager testified that a meat
department manager in branch 6 had the authority detailed above
in the case of the Menands meat manager. In these circumstances,
we find that the meat department managers at the Menands and
Kingston stores are supervisors and we exclude them from the unit.'
In the case of the other department managers at the Kingston store,
the parties stipulated that if the testimony were given, the evidence
regarding the meat manager would be the same with respect to the
grocery department manager, produce department manager, dairy
manager, and the delicatessen manager. The record shows, in addi-
tion, that these department managers recommend hiring and firing
and, although the store manager makes an investigation, "he would
normally follow what the department manager recommends." Ac-
cordingly, we find that, at the Kingston store, the grocery department
manager, produce department manager, dairy manager, and delica-
tessen manager are supervisors, and we exclude them from the unit."
With respect to the department managers at the Menands store
other than the meat department manager, the parties entered into no
stipulation. The same is true with 'respect to the sea food manager
at the Kingston store. In these circumstances, as the record is insuffi-
cient to determine the alleged supervisory status of these persons, we
permit them to vote subject to challenge." ' -
In regard to the head cashiers, the personnel manager testified that
their authority in branch 6 stores consists of being in charge of the
front end of the store, supervising and training the cashiers, and being
responsible for the accuracy of the cashiers with respect to the cash
registers. In addition, they are responsible for the maintenance of
the safes and also for collecting the time records from the department
heads and making up the payroll. They have authority to schedule
working hours. They also have the right to recommend discharge, and
the "chances are good they would be acted upon by his superior."
Testimony with respect to the head cashiers at the Kingston store is
in substantial accord with the evidence as to the head cashiers' duties
in branch 6. Moreover, the Kingston head cashier was included in the
stipulation that the evidence would show that other department man-
agers had the same supervisory authority as the meat manager. While
9 Brun0'8 Food Store, Incorporated, 131 NLRB 1023, 1025
io See Winn -Dixie Sto1 ea, Inc, et al, 124 NLRB 908, 911=912.
n The Great Atlantic & Pacific Tea Company, Inc., 132 NLRB 797, footnote 5.
FOOD FAIR STORES, INC. 7
the record does not disclose the specific duties and responsibilities of
the head cashier at Menands, we infer that he has the same authority
attributed to cashiers in other stores in branch 6. In these circum-
stances, we find that the head cashiers are supervisors and we exclude
them from the unit.12
We shall direct separate elections in the following voting groups :
1. All full-time and regular part-time meat department employees
at the Employer's store at Kingston, New York, including journey-
men meatcutters, apprentice meatcutters, wrappers, and fishmen, but
excluding all other employees, office clerical employees, professional
employees, guards, the meat department manager, and all other super-
visors as defined in the Act.
2. All full-time and regular part-time store employees at the Em-
ployer's store at Kingston, New York, including food clerks in the
grocery, produce, dairy, and delicatessen departments, but excluding
meat department employees, office clerical employees, professional
employees, guards, the store manager, meat department manager,
grocery department manager, produce department manager, dairy
manager, delicatessen manager, head cashier, and all other supervisors
as defined in the Act.
3. All full-time and regular part-time meat department employees
at the Employer's store at Menands, New York, including apprentice
meatcutters, journeymen meatcutters, and meat wrappers, but exclud-
ing all other employees, office clerical employees, professional em-
ployees, guards, the meat department manager, and all other super-
visors as defined in the Act.
4. All full-time and regular part-time store employees at the Em-
ployer's store at Menands, New York, but excluding meat department
employees, office clerical employees, professional employees, guards,
the meat department manager, store manager, head cashier, and all
other supervisors as defined in the Act.
We shall place the names of Meat Cutters Local 474 on the ballot
in the election among the employees in group 1; Meat Cutters Local
474, Retail Clerks Local 1500, and Retail Clerks Local 1245 in group 2;
Meat Cutters Local 1 in group 3; and Meat Cutters Local 1, Retail
Clerks Local 345, and Retail Clerks 1245 in group 4.13
If the majority of the employees in voting group 1 select Meat
Cutters Local 474, they will be taken to have indicated their desire
to constitute a separate unit. If a majority of the employees in voting
group 2 select Meat Cutters Local 474, or Retail Clerks Local 1500, or
12 Winn-Dixie Stores , Inc, et al., 124 NLRB 908, 912; The Eavey Company, 115 NLRB
1779, 1781-1783
13 As Retail Clerks Local 1245 contended that the grocery employees at the 2 stores
herein should be added to its existing 59-store, branch 6 unit of grocery employees, we
include its name on the ballot in voting groups 2 and 4
S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Local 1245, they will be taken to have indicated their
desire to constitute a separate unit.
If a majority of the employees in voting group 3 select Meat Cutters
Local 1, or if a majority of the employees in voting group 4 select
Retail Clerks Local 345 or Retail Clerks Local 1245, they will be taken
to have indicated their desire to be represented in a unit separate from
the meat department employees. However, if a majority of the em-
ployees in group 4 do not vote for Retail Clerks Local 345 or for
Retail Clerks Local 1245, these employees of voting group 4 will be
appropriately included with the employees of group 3, and their votes
will be pooled with those in group 3.14 If a majority of the pooled
group select Meat Cutters Local 1, they will be taken to have indicated
their desire to constitute a single combined unit of all store employees,
including meat department employees. The Regional Director is in-
structed to issue a certification of representatives or results depending
upon the outcome of the elections.
[Text of Direction of Elections omitted from publication.]
1* If the votes are pooled, they are to be tallied in the following manner The votes
for Retail Clerks Local 345 and Local 1245 in voting group 4 shall be counted as valid
votes, but neither for nor against Meat Cutters Local 1, the labor organization seeking
to represent a single unit of meat department and other stoic emplovees All other
votes are to be accorded then face value, whether for representation by the union seeking
the more comprehensive group of for no union
Eastern Greyhound Lines ( A Division of The Greyhound Corpo-
ration ) and Amalgamated Association of Street, Electric Rail-
way and Motor Coach Employees of America , AFL-CIO,
Petitioner . Case No. 8-RC-4705. August 2, 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 Nora Friel, hearing officer.
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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, 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.
2, The labor organization involved claims to represent certain em-
ployees of the Employer.
'The Employer has requested oral argument . This request is hereby denied because
the record and the briefs adequately present the issues and the positions of the parties.
138 NLRB No. 4.