Weis Markets, Inc.

National Labor Relations Board - Board DecisionsMay 22, 1963

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

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conveyer belt during city-bulk runs belongs to the mailers.' In making this determination, we are, of course, assigning the disputed work to the employees represented by the Mailers, and not to that Union or its members. Accordingly, we find that the Deliverers' Union was not, and is not, entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require the Company to assign the disputed work to its mem- bers rather than to employees represented by the Mailers. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in the case, the Board makes the following Determination of Dispute, pursuant to Section 10 (k) of the Act : 1. Employees engaged as mailers, currently represented by New York Mailers' Union No. Six, International Typographical Union, AFL-CIO, are entitled to operate the start, stop, and reverse buttons and the deflector arms on the Jampol belt during city-bulk runs at the New York Times Company's mailroom at 43d Street, New York City, New York. 2. Newspaper and Mail Deliverers' Union of New York City and Vicinity, Independent, is not entitled by means proscribed by Section 8(b) (4) (D) to force or require The New York Times Company to as- sign such operation of the Jampol belt to employees engaged as deliverers, who are currently represented by Newspaper and Mail Deliverers' Union of New York City and Vicinity, Independent. 3. Within 10 days from the date of this Decision and Determination of Dispute, Newspaper and Mail Deliverers' Union of New York City and Vicinity, Independent, shall notify the Regional Director for the Second Region, in writing, whether or not it will refrain from forcing or requiring The New York Times Company by means proscribed by Section 8 (b) (4) (D) to assign the work in dispute to deliverers rather than to mailers. 7 See News Syndicate Co., Inc. ( New York Mailers' Union No. 6, International Typo- graphical Union, AFL-CIO), 141 NI1RB 573. Weis Markets, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America , Local No. 195, AFL-CIO, Peti- tioner. Cases Nos..-RC-5294 and 4-RC-5295. May 22, 1963 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held in Phila- delphia, Pennsylvania, before hearing officer Robert H. Levan. The 142 NLRB No. 87. WEIS MARKETS, INC. 709 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 these cases to a three- member panel [Members Leedom, 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 organization involved claims to represent certain employees of the Employer. 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 Petitioner filed separate petitions seeking two multistore, citywide units, one consisting of all meat department employees 1 in stores Nos. 17 and 41 in Lancaster, Pennsylvania, and the other con- sisting of all meat department employees in stores Nos. 5, 12, 27, and 43 in York, Pennsylvania. It would exclude from each unit all grocery, produce, and office employees, cashiers, watchers, and super- visors 2 as defined in the Act. Alternatively, the Petitioner is willing to participate in elections among the meat department employees in each of the aforesaid six stores of the Employer on a single-store basis, or any combination of the said stores which the Board might find appropriate. The Employer contends that none of the units sought are appropri- ate, without affirmatively indicating what it would consider to be an appropriate unit, and moves that the instant petitions be dismissed. In support of its contention, the Employer relies on a previous decision of the Board involving the same Employer, a sister local of the instant Petitioner, and the Retail Clerks International Associa- tion.3 The facts in the instant case are substantially the same as those found in the earlier Weis Markets case, the difference being that the Employer has expanded its business and now operates 44 retail food stores in 18 counties of Pennsylvania. In the prior case, the Board denied, inter alia, the Petitioner's request for units of meat department employees on a single-store basis or, alternatively, on a wage area basis. The Board there found that a unit coextensive with the Employer's wage area was inappro- priate because it was not an administrative area and, geographically, the stores within the particular wage area were as much as 70 miles apart. At the time of that decision, the question of the appropriate- 1 This department in each store is comprised of the meat , fish, and delicatessen em- ployees in the categories of cutters , apprentices, and wrappers. 2 The parties stipulated that meat department managers are not supervisors within the meaning of the Act. s Weis Markets, Inc., 125 NLRB 148. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness of units in well-defined geographical areas was not before the Board.4 Unlike the prior case, however, Petitioner herein seeks two separate citywide units within the Employer's comprehensive chain- wide administrative area. For the reasons stated below, the Board hereby denies the Employer's motion to dismiss and finds that Peti- tioner's primary unit requests are appropriate.' It has long been the policy of the Board to find that the appropriate bargaining unit in retail chain operations should embrace the em- ployees of all stores within an employer's administrative or geographi- cal area.' The Employer's contention that the Board's decision in Sav-On Drugs, Inc.' abandoned that rule is without merit. In that case the Board stated that it would apply to retail chain operations the same unit policy which it applies to multiplant locations generally, and that it had merely "added the possibility . . . that a single loca- tion or a grouping other than an administrative or geographical area may be appropriate." I The fact that the unit sought would include all employees within such an area has been and continues to be one of the criteria to which the Board looks as part of its general unit policy.9 Furthermore, within each of the citywide units sought herein the stores are separated from each other by short distances of 2 to 5 miles, whereas the Employer's other stores are located at substantial distances therefrom. Temporary transfers among stores within each of the requested units are more frequent than transfers between such stores and stores outside. In addition, there is no bargaining history 10 and no labor organization is seeking to represent the employees in a broader unit. Under these circumstances, the fact that the wages, fringe benefits, and personnel policies are uniform for all employees throughout the chain, including those in the York and Lancaster stores, does not militate against a finding of an appropriate geographi- cal unit in each instance.ll Accordingly, we find that the following employees of the Employer constitute units appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act :12 I In fact, the Board there stated: "As it is unnecessary to our decision, we have not con- sidered whether only chainwide units are appropriate, as the Employer contends, or whether smaller units not sought herein might also be appropriate." Weis Markets, Inc., supra, footnote 3, p. 151. 6 In view of this conclusion, we have not considered whether the Petitioner's alternative unit positions might also be appropriate. 9 See cases cited in footnote 5, Sav-On Drugs, Inc., 138 NLRB 1032. 7 Supra. 8 Ibid , footnote 4. 9 See, e g., Bell Bakeries of St. Petersburg, etc., 139 NLRB 1344; and see cases cited in footnote 3 of Sav-On Drugs, supra. 10 Although the Board directed an election in two chainwide units in Weis Markets, Inc., 116 NLRB 1993, no bargaining representative was selected and no collective bargaining ensued 11 The Great Atlantic and Pacific Tea Company, Inc., 128 NLRB 342, and see footnote 6 thereof. -' We disagree with the Employer's further contention that a unit composed of meat department employees only, excluding all other employees in the stores, is contrary to AMERICAN STORES PACKING CO., ACME MARKETS, INC. 711 1. All full-time and regular part-time 13 meat department employees in the Employer's stores Nos. 17 and 41 in Lancaster, Pennsylvania, excluding all grocery, produce, office employees, cashiers, watchers, and supervisors as defined in the Act. 2. All full-time and regular part-time 14 meat department employees in the Employer's stores Nos. 5, 12, 27, and 43 in York, Pennsylvania, excluding all grocery, produce, office employees, cashiers, watchers, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Board policy . In the absence of a contrary bargaining history or a request by a labor organization for a more comprehensive unit, the Board has recognized the appropriateness of a separate meat department unit in stores of this kind . The Great Atlantic and Pacific Tea Company , Inc., 130 NLRB 226, 227-228; 128 NLRB 342. is The parties stipulated that, in the event the Board directs an election in this case, all regular part-time employees shall be eligible to vote. '- See footnote 13 supra. American Stores Packing Co., Acme Markets, Inc. and Inter- national Union of Operating Engineers , Local No. 1, AFL-CIO. Case No. 27-CA-1183. May 23, 1963 DECISION AND ORDER On November 29, 1962, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled case, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent and General Counsel filed excep- tions and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications. The Trial Examiner found, and we agree for the reasons stated by him, that the Respondent violated Section 8(a) (5) and (1) of the Act by refusing to bargain in good faith with the Union. The Trial Examiner also found that the Respondent unlawfully locked out its employees on February 23, 1962, in violation of Section 8(a) (3) and (1) of the Act. We agree. We are, however, unable to agree with the Trial Examiner that such lockout continued until April 9, 1962, when the employees were returned to work, and with his Recommended Order that the employees be awarded backpay for the full period during which they were not working. 142 NLRB No. 81.