Food Fair Stores, Inc.

National Labor Relations Board - Board DecisionsJun 12, 1973

204 N.L.R.B. 75 (N.L.R.B. 1973)

FOOD FAIR STORES 75 Food Fair Stores , Inc. and Thomas E. Littleton, Peti- tioner, and Retail Clerks Union Local 441 , affiliated with Retail Clerks International Association, AFL- CIO. Case 12-RD-250 June 12, 1973 DECISION ON REVIEW BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 19, 1972, the Regional Director for Region 12 issued a Decision and Direction of Election in the above-entitled proceeding directing an election be held among all employees at the Employer's newly opened retail supermarket in South Daytona Beach, Florida, excluding meat department employees. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended, the Union filed a timely request for review of the Regional Director's decision on the ground that in finding a single-location unit was appropriate for a decertification election, he de- parted from reported precedent. On October 24, 1972, the National Labor Relations Board granted the request for review.' The Board has considered the entire record in this case and makes the following findings: The Employer is a corporation engaged in the oper- ation of retail food and grocery stores throughout the United States. The South Daytona Beach store in- volved herein is located in the Employer's Jackson- ville, Florida, administrative division that includes 65 stores in Florida, Georgia, and South Carolina. His- torically, the Union has represented the employees at 18 stores within the aforementioned division in a sin- gle multistore unit. At the time of the hearing, the Employer and the Union were in the process of nego- tiating changes in the collective-bargaining contract applicable to that unit which was to expire on July 31, 1972. Approximately 3 days prior to the opening of the South Daytona Beach store on March 15, 1972, the Employer recognized the Union as the representative for the employees at the new South Daytona Beach store and the terms of existing multistore agreement were applied to that store. It appears that the first time Petitioner learned the Union had been recognized was after the opening of the store when a union represen- tative visited the store. Thereafter, on May 26, 1972, the Petitioner filed the instant petition seeking decer- tification of the Union as the representative at the South Daytona Beach store. The Union argues that the South Daytona Beach store is not a separate ap- propriate unit but rather an accretion to the existing multistore unit. Accordingly, the Union contends that the Employer and the Union properly treated the store as a part of the existing multistore unit and that the petition should be dismissed because the unit in which decertification is sought is not coextensive with the existing unit. However, for reasons set forth be- low, we believe the Union's position is without merit. The Jacksonville division is subdivided into five districts, each of which includes 12 to 14 stores. The district encompassing the South Daytona Beach store is bounded on the north and south by the Florida coastal cities of Ormond Beach and Eau Gallie, re- spectively, and on the west by the city of De Land. There are 12 other stores in the same district as the South Daytona Beach store. Three of these other stores-at Ormond Beach, Daytona Beach, and New Smyrna Beach-are clearly in the existing multistore unit and there is evidence that a fourth store in the district-at Holly Hill-may also be in the unit. The eight remaining stores-at Merritt Island, Cocoa Beach, Satellite Beach, Eau Gallie, and two each at Titusville and De Land-are not in the multistore unit. The remaining 14 stores in the multilocation unit are in a district or districts which lie to the north of Ormond Beach. With respect to the operation of the stores in the Jacksonville division, it appears that all purchasing (except for perishable products), advertising, account- ing and payroll functions, and general labor relations policy is controlled and administered by the divisional office. Ultimate responsibility for store operations rests with the divisional director of store operations. Reporting to him are district managers in each of the five districts in the division. The individual store man- agers, in turn, report directly to the district manager. Although the district managers visit the stores in their district every 10 days to 2 weeks for the purpose of making various inspections and giving certain instruc- tions, the respective store managers exercise substan- tial control over the day-to-day operations of the stores. Thus, they have the authority to hire personnel as needed, even in excess of the manning require- ments established by the divisional office .2 They are also responsible for laying off and recalling employ- ees, and they have authority to discharge nonsupervi- sory personnel during their initial probationary period. After the probationary period, the store man- ager may suspend employees, but he cannot discharge them without prior approval of the divisional director 1 The request for review was initially denied on August 4, 1972 On August 10, 1972, the Union filed a motion for reconsideration . Pursuant to that motion , review was granted. 2 However, as is the usual case, the South Daytona Beach store was initially staffed by employees hired by the divisional director of labor relations. Thereafter, the store managers assume responsibility for hiring employees. 204 NLRB No. 23 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of labor relations. The store manager also assigns and directs the work of employees in the store. He is assist- ed in this latter regard by an assistant manager, and the managers of the meat, produce, and grocery de- partments. Considerable responsibility with respect to other aspects of the store operations is also vested in the store manager. For instance, the store manager orders commodities from the central warehouse and perishables through local distributors. He may vary the price of soiled or damaged goods and he has au- thority to alter prices to meet local competition. In addition, he is authorized to undertake certain repairs of the building. With respect to interchange of employees, it ap- pears there are approximately 25 permanent transfers each week in the 65-store division. Temporary trans- fers for the division fluctuate between 15 and 35 per week. At the South Daytona Beach store, between early January and late June 1972, there were 7 perma- nent transfers into and 16 out of the store. Although this may be greater than the normal amount of perma- nent transfers at other stores, it appears to be due in part to its recent opening. More significant, however, is the fact that in the same period there has been only one temporary transfer at the South Daytona Beach store.' Based on the foregoing and the entire record, par- ticularly the substantial authority and autonomy of individual store managers and the insignificant amount of temporary interchange, we find, as did the Regional Director, that the presumptive appropriate- ness of a single-store unit has not been rebutted in this case. As the Union has been accorded recognition as the representative of the employees at the South Daytona Beach store which, in our view, is a separate appropri- ate unit, a decertification petition limited to that unit would be appropriate in the absence of evidence that the unit has been merged into a broader unit. On the basis of the record before us, including the fact that there has been no multistore bargaining involving the South Daytona Beach store and the lack of any evi- dence that the employees ever assented to any multi- store bargaining or contract on their behalf, we conclude the South Daytona Beach store has not been effectively merged into the existing multistore unit.' 7 The limited oral testimony with respect to employee transfer and inter- change fails to disclose whether any employees who have been employed at the South Daytona Beach store were transferred to or from a store in the existing multistore unit. See Walgreen Co, 198 NLRB No 158, Primrose Super Market of Maiden, Inc., 178 NLRB 566; The Grand Union Company, 176 NLRB 230; Shop 'n Save Co., Inc, 174 NLRB 1113, The Kostel Corporation, d/b/a Big Ben Shoe Store, 172 NLRB 1523, Maryland Cup Corporation, 171 NLRB 367; Haag Drug Company, Inc, 169 NLRB 877. S Setzer 's Super Markets of Georgia, Inc, 145 NLRB 1500 Cf W T Grant Company, 179 NLRB 670. Accordingly, the case is hereby remanded to the Regional Director for purposes of conducting an elec- tion pursuant to his Decision and Direction of Elec- tion, except that the eligibility payroll period shall be that immediately preceding the date of issuance of this Decision. [Excelsior footnote omitted from publi- cation.] MEMBER FANNING, concurring in part and dissenting in part: I agree fully with my colleagues that the presump- tive appropriateness of a single-store unit at the South Daytona Beach store has not been rebutted. The sub- stantial authority and autonomy of the Employer's various individual store managers and the insignifi- cant amount of temporary interchange of employees between stores support that conclusion. My col- leagues, however, proceed from that finding to their ultimate finding that the separate store unit is an ap- propriate one for a decertification election, ignoring the fact that the Employer has recognized the Union for these very employees pursuant to an existing bar- gaining contract which describes the unit as including employees of present and future retail food stores of the Employer in Daytona Beach and other named areas . By reason of that recognition the contractual multistore unit is the "currently recognized" bargain- ing unit, and under the statute, in the absence of a certified unit, it is the only appropriate unit for the holding of a decertification election .6 My colleagues seek to avoid the application of the statute and of applicable Board precedent by finding that there has been no multistore bargaining involving the South Daytona Beach store and by noting the lack of evidence that the employees ever assented to bar- gaining for them by inclusion in the multistore con- tract. They cite W. T. Grant Company, which illustrates the general rule as to decertification elec- tions rather than the merger exception contended for, and Setzer's Super Markets, 145 NLRB 1500, a case in which I participated, in a distinguishable fact situa- tion.' They overlook the fact that the appropriate way 6 Sec 9 (c)(1)(A)(u) of the Act provides for an election where a group of employees "assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative , is no longer a representative as defined in section 9(a);" and, as the Board said in W T Grant Company, 179 NLRB 670 • "The unit appropriate in a decertification election must be coextensive with either the unit previously certified or the one recognized in the existing contract unit." 7 In Setzer 's the Board majority revoked a single store certification because the certified union acted in derogation of that certification and ceded bar- gaining for meat department employees at the single store to another union Then existing multistore contracts by each union were extended by the parties to the single store At the time of the decertification proceeding the meat contract had been renegotiated for a new 3-year term, while the grocery contract had not , and a divisionwide strike as to grocery employees was in process that had not yet affected the single store when the decertification petition was filed A decertification election was directed in a single-store FOOD FAIR STORES 77 for employees to protest an employer's extending rec- unit, excluding meat department employees . The Board majority's reliance upon lack of merger occurred in a situation where the originally certified union had failed to negotiate a new multistore contract at the first opportuni- ty when the single store employees might have expressed themselves on substantive bargaining issues. In W T Grant the Board dismissed, as I would here , because a new agreement had been entered into by the parties which effectively merged separately certified warehouse employees at a dis- tribution center with later separately certified office clerical employees, and with later voluntarily recognized appliance servicemen and depot truckdn- vers and helpers . In both cases the unit scope provided by existing contracts was not in issue ; in both the Board took account of the new contracts entered into following expiration of the existing contracts , or of the failure, at an appropriate time, to enter into a new contract covering the unit as expanded. ognition to newly employed groups of employees un- der an existing contract is by an unfair labor practice proceeding alleging unlawful assistance to the labor organization the employees have not authorized. To attempt to accomplish this by decertification of only part of a recognized unit is not the way provided by statute and long approved by the Board. I would reverse the Regional Director because the unit in which he directed this decertification election is not coextensive with the currently recognized con- tract unit.