Overton Markets, Inc.

National Labor Relations Board - Board DecisionsJan 19, 1965

150 N.L.R.B. 1159 (N.L.R.B. 1965)

OVERTON MARKETS, INC., ETC. 1159 posing department and proofroom employees, including proof press operators; all photographic department employees performing cam- era operations, stripping, contacting, film processing, opaquing, and photographic proofing employed by the Employer at its Kingsport, Tennessee, plant, but excluding all employees engaged in offset and Dycril platemaking operations in the photochemical department, technical, professional, and research and developmental employees, and/or employees engaged in experimental work, office and plant cleri- cal employees, guards, watchmen, all other employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Overton Markets , Inc.; J . W. Overton & Son, Inc.; Marvin B. Overton , Inc. ; W. S. Overton , Inc. ; Thomas L. Overton, Inc.; Lilton Davis ; Frank McLaurin ; all d/b/a "Overton Markets" and Local 305, Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, Petitioner, and Retail Clerks International Association , AFL-CIO , Local 233, Petitioner. Cases Nos. 5-RC-3822 and 5-RC-3825. January 19, 1965 SUPPLEMENTAL DECISION, CLARIFICATION OF CERTIFICATION, AND DIRECTION OF SECOND ELECTION Pursuant to a Board Decision and Direction of Elections,' the Acting Regional Director for Region 5 conducted secret ballot elec- tions on June 27, 1963, among the employees in the two units found appropriate by the Board .2 The tally of ballots in the election in the Retail Clerks unit showed 39 for and 41 against the Retail Clerks, and 31 challenged ballots. In the election in the Meat Cut- ters unit, the tally showed 12 for and 7 against the Meat Cutters, and 6 challenged ballots. The challenges were sufficient in number to affect the results of each election. Thereafter, the Employer filed objections to the conduct of both elections, and the Retail Clerks filed objections to conduct affecting the results of the election in its unit. 1 142 NLRB 615. 2 The units were: (1) All full-time and regular part-time employees in the grocery , produce, and dairy products departments of the Employer ' s 10 retail grocery stores , and all employees of the warehouse and bakery , excluding meat department employees, office clerical employees, professional employees , guards, general managers , and all other supervisors as defined in the Act. (2) All meat department employees , including the meat department manager at the East Chester Street store , but excluding the meat department managers at all other stores, all other supervisors as defined in the Act, and all other employees. 150 NLRB No. 109. 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Acting Regional Director investigated the objections and chal- lenges, and, on October 31, 1963, issued his report on objections and challenges. In this report, the Acting Regional Director found merit only in certain objections of the Retail Clerks and recommended that a,-new election be held in that unit if,' after opening and counting 22 challenged ballots as recommended by him, the Retail Clerks still lacked a majority. - He also recommended, upon sustaining two challenges to ballots, that the Meat Cutters be certified in its unit. The Employer thereafter filed exceptions to the report. On Decem- ber 30, 1963, the Board directed the Regional Director to open and count the 22 challenged ballots cast in the Retail Clerks case. Pur- suant thereto, the Regional Director, on January 9, 1964, issued a revised tally of ballots which showed 49 votes for and 53 against the Retail Clerks. On June 23, 1964, the Board issued a Decision, Certification of Representatives, and Order. It found no basis in the Employer's exceptions for reversing the Regional Director's recommendations for a new election in the Retail Clerks unit and for certification of the Meat Cutters in its unit. But, in view of the Employer's allegations of changes in the Retail Clerks unit which would have a bearing on voting eligibility in the second election, the Board remanded the case to the Regional Director for the pur- pose of holding a hearing with respect to such allegations. The Board also certified the Meat Cutters, but without prejudice to the filing of a motion to clarify its unit as a result of any changes therein. On July 24, 1964, Marvin B. Overton, Inc., filed a motion requesting that the Meat Cutters certification be vacated or clarified to exclude Marvin B. Overton, Inc. On August 3, 1964, the Board denied the request to vacate the Meat Cutters certification, but ordered that a hearing be held on the alleged changes affecting this unit and that this hearing be consolidated with the hearing in the Retail Clerks case. On September 3, 1964, a hearing was held before Hearing Officer Louis Aronin. Thereafter, the Employer and both Petitioners filed briefs. 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 [Chairman McCulloch and Mem- bers Brown and Jenkins]. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Board has consid- ered the evidence adduced at the September 3, 1964, hearing, the briefs of the parties, and the entire record in the case, and based on the foregoing, makes the following findings : It was originally found 3 that 7 companies operating 10 "Overton" stores constituted a single unit for bargaining purposes. The record a Members Rodgers and Leedom dissenting. OVERTON MARKETS, INC., ETC. 1161 upon remand discloses that certain changes in the operation of these stores have occurred. It was stipulated at the remand hearing that 5 of the 10 "Overton" stores, 'as well as the warehouse and bakery of Overton Markets, Inc., had been sold or closed down, and are no longer part of the units established by the Board. However, both the Retail Clerks and,the Meat Cutters contend that the five remain- ing stores continue to constitute a single employer' for unit purposes. J. W. Overton & Son, Inc., W. S. Overton, Inc., and Overton Mar- kets, Inc., who own four of the remaining stores, contend that new elections for both units should be held on an individual corporation basis. Marvin B. Overton, Inc., which owns the fifth store, asks that "the previous orders of the Board should be modified to provide that Marvin B. Overton, Inc., is not properly included in the unit claimed by the petitioners." All the presently operating stores continue to operate as retail groceries under the `Overton" trade name. With. the closing, of the warehouse and bakery, the 4 Overton corporations joined Economy Stores, a 160-member cooperative supply warehouse, and now inde- pendently purchase their groceries from Economy Stores. Meats and produce are also independently purchased. However, other than the discontinuance of the common purchasing arrangements, the record fails to disclose any significant change in the operation of the four stores owned by Overton Markets, Inc., J. W. Overton & Son, Inc., and W. S. Overton, Inc. It was stipulated, for example, that these four stores continue to stock several "Big 0" brand items, maintain the identical and transferable group insurance and profit- sharing plans, continue the joint newspaper advertising (although no longer handled by A. W. Overton's advertising agency), and ad- here to the same method of fixing prices for advertised products. In view of the foregoing, we find that the employees of the afore- mentioned four stores should continue to be joined together for col- lective-bargaining purposes. A different conclusion is called for with respect to Marvin B. Overton's High Street store 4 as a ,result of, the more substantial changes which have taken place there. Other than the use of the "Overton" trade name, it has little or no connection 'with the other Overton stores. In addition to adopting an independent purchasing policy, Marvin B. Overton, Inc., has deleted reference to the other Overton stores on a sign on its store, separately places its own news- paper advertising, independently determines the prices for its adver- tised specials, discontinued all "Big 'O" brand items, departed from the policy of the other Overton stores by selling beer, terminated the common employee profit-sharing plan,, and obtained a new separate group insurance plan. Marvin B. Overton, Inc.,' sets wages, hours, A Its Afton Parkway store was among those disposed of since the election. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and vacations for its employees independently; and there is no em- ployee interchange or interlocking officers with the other Overton stores. On these facts, we are persuaded Marvin B. Overton, Inc., no longer belongs in the bargaining units heretofore established. Accordingly, we find that the units now appropriate for purposes of the second election in the Retail Clerks case and covered by the Meat Cutters certification, consist of the employees specified below at the four stores owned by Overton Markets, Inc., J. W. Overton & Son, Inc., and W. S. Overton, Inc. CLARIFICATION OF CERTIFICATION The certification issued Local 305, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, on June 23, 1964, is hereby amended to show that the said labor organization is the exclusive statutory bargaining representative of the employees in the following unit : All meat department employees at the four retail grocery stores owned by Overton Markets, Inc., J. W. Overton & Son, Inc., and W. S. Overton, Inc., excluding meat department managers, and all other supervisors as defined in the Act, and all other employees. [Text of Direction of Second Election omitted from publication.] Signal Manufacturing Co. and Amalgamated Local 257, Inter- national Union of Electrical , Radio and Machine Workers, AFL-CIO. Case No. 1-CA-4621. January 01, 1965 DECISION AND ORDER On November 5, 1964, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. 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 [Chairman McCulloch and Mem- bers Brown and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 150 NLRB No. 110.