Piggly Wiggly California Co.

National Labor Relations Board - Board DecisionsSep 19, 1963

144 N.L.R.B. 708 (N.L.R.B. 1963)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steps shall be taken by Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for the Twelfth Region, in writing, within 20 days from the receipt of this Report, what steps the Respondent has taken to comply therewith.73 Unless Respondent shall, within the prescribed period, notify the said Regional Director that it will comply, it is recommended that the Board issue an order requiring Respondent to do so. 73 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees: Upon request we will bargain collectively with International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 433, as the exclusive representative of all production and maintenance employees at our two Jacksonville, Florida, plants, Peterson and Diversified, with respect to wages, hours, and conditions of employment and, if agreement is reached, embody it in a signed agreement. Excluded from the bargaining unit are office clerical employees, salesmen, professional employees, guards, watch- men, and supervisors as defined in the law. WE WILL NOT interrogate or threaten our employees with loss or detriment because of their exercise of their rights under the law to join a labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. PETERSON BROTHERS, INC., DIVERSIFIED PRODUCTS COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Ross Building, 112 East Cass Street, Tampa 2, Florida, Telephone No. 223-4623, if they have any question concerning this notice or compliance with its provisions. Piggly Wiggly California Company and Hotel , Motel & Restau- rant Employees & Bartenders Union , Local 694, affiliated with Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO, ' Petitioner. Case No. d1-RC-8355. Septem- ber 19, 1963 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 Hearing Officer Howard I The name of the Petitioner appears as amended at the hearing. 144 NLRB No. 66. PIGGLY WIGGLY CALIFORNIA COMPANY 709 Fabrick. 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members 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 organizations involved claim to represent certain em- ployees of the Employer.2 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Employer, a California corporation, operates two retail supermarkets, one in Encino, the other in Reseda., California, which are located in the Los Angeles, California, metropolitan area. It is a member of Food Employers Council Inc., a multiemployer associa- tion of retail food stores located in that area. The Association is a party to a current collective-bargaining agreement with the Inter- venor, effective from January 1, 1959, until March 31, 1964. The agreement covers grocery and produce department clerks on an associationwide basis. It is not disputed that this agreement covers such employees at both of the Employer's area stores. The record also shows that the meat department and maintenance employees at both of the Employer's area stores are covered by contracts between the Food Employers Council on the one hand and the Meat Cutters and Building Service Employees Unions, respectively, on the other 3 It is not clear, however, whether these contracts cover employees on an associationwide basis. The only unrepresented employees at both of the Employer's stores are its snackbar employees 4 The Petitioner seeks to represent a single unit of the snackbar em- ployees at the Encino store, excluding all other employees. The Em- ployer agrees that the unit is appropriate. The Intervenor contends that the snackbar employees are covered by its current contract with the Association, but that even if this contract is not applicable, the petition must nevertheless be dismissed because the unit sought is inappropriate. In this connection, the Intervenor argues that (1) the snackbar employees constitute a resid- ual group of employees and as the Intervenor has a multiemployer 2 Retail Clerks Union , Local 770 , affiliated with Retail Clerks International Association, AFL-CIO, herein called Local 770 or the Intervenor , was permitted to Intervene at the hearing on the basis of its current contract with the Employer and upon the basis of Inde- pendent evidence of a showing of Interest in the unit sought. 8 The Reseda store has been in operation for at least 9 years . The Encino store opened in June 1962. The multlemployer contract was applied to the Encino grocery and produce clerks at that time. A These employees sell food to store customers for on -premises consumption. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract covering both of the Employer's stores, the unit sought must be coextensive with the Employer's two stores, if not with the multi- employer unit; and (2) because of a mutuality of interest snackbar employees are properly a part of, and should be included in, the gro- cery and produce clerks' unit. The record contains no evidence that snackbar employees were ever intended to be included in the associationwide contract. Although the contract has a separate wage-rate provision for each department where the grocery and produce clerks are located, there is no provision for a snackbar department as such or for the categories of employees working therein. Furthermore, snackbar employees have been em- ployed at the Reseda store for the past S years, but the Intervenor has never claimed to represent them or bargained with respect to them. Moreover, other members of the association have snackbar employees, none of whom is represented by the Intervenor. Some of these employees, however, are represented by the Petitioner or other culinary locals on an individual or multistore basis; others are not represented by any labor organization. From the foregoing it is clear that there is no history of overall bargaining for snackbar employees on a multiemployer basis. There- fore, it cannot be said that snackbar employees, if a residual group, must be in a unit coextensive with the multiemployer unit.' In Joseph E. Seagram & Sons, Inc.,' the Board set forth its policy, which it has since followed,' that an established multiemployer or multiplant bargaining pattern as to certain categories of employees is not controlling with respect to other categories of employees as to whom there is no bargaining history, and separate, single employer or single plant units of the unrepresented employees are presumptively appropriate. Also where, as here, no union seeks to represent the unrepresented employees on a broader basis 8 and there is no multi- employer bargaining pattern for such employees, the Board will find a separate unit of employees in a single plant appropriate.9 The snackbar prepares food for on-premises consumption. It is located in front of the check stands, at the front of the store.10 It 5 Accordingly, The Los Angeles Statler Hilton , 129 NLRB 1349 , cited by the Intervenor, is inapposite here . Furthermore , as hereinafter set forth , unlike Hilton, the unit sought herein is composed of a homogeneous and internally cohesive group of employees. See Joseph E. Seagram & Sons , Inc., 101 NLRB 101. 0 101 NLRB 101. v Macy's San Francisco , and Seligman d Letz, Inc., 120 NLRB 69, 72; Arden Farms, et al, 117 NLRB 318 ; Continental Baking Company, 109 NLRB 33. 8 It is noted that the Intervenor has made no showing in , nor does it seek to represent, a broader snackbar unit. It merely asserts that the petition should be dismissed because it does not seek a broader unit. 6 Macy's San Francisco , supra; Arden Farms , supra; Continental Baking Company, supra; Sanborn Telephone Company, Inc., 140 NLRB 512. 10 All other departments of the store are located behind the check stands except the bakery, which sells food for off-premises consumption, and one -half of the liquor depart- ment. The latter may be entered from either in front or behind the check stands. PIGGLY WIGGLY CALIFORNIA COMPANY 711 consists of an inside counter, where food is prepared and served, and an adjacent outside patio for table service during clement weather. All purchases made at the snackbar are paid for there. Purchases from other departments of the store, except the vanity fair 11 and liquor departments, where payment can be made at either the depart- ment or the check stand, and the bakery and candy departments, which are leased concessions, are paid for at the check stands. The snackbar employees currently consist of a fry cook and seven waitresses. Since April 1963 there has been no snackbar manager and the employees are directly under the supervision of the store manager. The fry cook prepares food and occasionally waits on customers. The waitresses assist the fry cook and wait on customers. No other employees in the store perform this type of work. The record shows there is practically no interchange between snackbar and other em- ployees.12 The fry cook receives about $1 an hour and the waitresses $1.50 to $1.75 an hour less than the employees represented by the Intervenor. Additionally, unlike the latter, they receive free meals while working, but do not receive premium pay for Sunday work and, except for the fry cook, are part-time employees, none working more than 32 hours in any 1 week. The fry cook receives overtime pay only after 44 hours. Also, unlike the store clerks who have a regularly scheduled 1-hour lunch period, snackbar employees have an unsched- uled half hour which they take during a lull period. The store is open 7 days a week from 9 a.m. to 10 p.m. The snackbar is open every day at 9 a.m. but it may close as early as 7 p.m., and usually closes between 8 and 9 p.m. On the basis of the foregoing, it is clear that the snackbar employees have terms and conditions of employment not shared by, and dif- ferent from, the grocery and produce clerks. The Board, in the past, has found such employees to have a community of interest apart from grocery and produce clerks and to constitute a separate appropriate unit.13 In our opinion there is no basis for finding that only a two-store unit is appropriate. Although the record does not show whether the Encino and Reseda stores are separately incorporated or admin- istered by the Employer, it does show they are located in separate communities and that their day-to-day operations are independent of each other, that the Encino store is operated and supervised by a store director who, together with the heads of the various departments therein, has the authority to hire and discharge all store employees; 11 Which sells drugs and cosmetics. 13 On isolated occasions snackbar employees have helped out in the vanity fair depart- ment for short periods of time However, it is not clear that any of the employees repre- sented by the Intervenor have ever helped out in the snackbar. 13 Allied Stores of Ohio, 90 NLRB 186'8. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that there is no interchange or transfer of employees between the two stores. Accordingly, and in view of the absence of a bargain- ing history for the snackbar employees at either store and the fact that no labor organization seeks to represent such employees on a broader basis, we find that a unit of snackbar employees confined to the Encino store is appropriate herein.l4 In view of the foregoing, we find that the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. All regular full-time and part-time snackbar employees at the Em- ployer's store located at 15821 Ventura Boulevard, Encino, California, including the fry cook,15 but excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 14 Sav-On Drugs, Inc., 138 NLRB 1032, 1034-1035. 1s The record shows that from June 1962, when the Encino store opened, until April 1963, the snackbar was supervised by a salaried snackbar manager who was responsible to the store manager, had sole responsibility for the operations of the snackbar , and had the authority to hire and fire snackbar employees . Since April 1963 some of the duties of the snackbar manager, with respect to purchases of food and supplies , have been assumed by the fry cook who is hourly paid. However , the fry cook 's pay has not been increased ; he has not assumed the title of manager , nor has he been given or exercised the authority to hire and fire employees , or to effectively recommend such action. In view thereof , we find the fry cook Is not a supervisor within the meaning of the Act, and include him in the unit. Dorado Beach Hotel and Teamsters, Chauffeurs, Warehousemen & Helpers, Local 901, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , Petitioner. Case No. 924-RC-1726. September 20, 1963 DECISION ON REVIEW On June 22, 1962, the Regional Director for the Twenty-fourth Re- gion issued his Fourth Supplemental Decision and Certification of Representatives in the above-entitled proceeding in which he found no merit in the objections raised by the Independiente 1 to the conduct of the runoff election held on June 1, 1962. Accordingly, he certified Local 610 2 as the bargaining representative of the employees in the unit of the Employer's hotel service and maintenance employees agreed 1 Union de Trabajadores de la Industries Gastronomica de Puerto Rico, Independiente, an Intervenor. 2 Union de Trabajadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, an Intervenor. A tally of ballots , served on each of the parties, revealed that, of 471 eligible voters, 221 cast valid ballots for Local 610, 89 for Independiente , and the ballots of 13 voters were challenged . There were nine void ballots. - 144 NLRB No. 72.