The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1500 (N.L.R.B. 1952)

1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director conducting the election is directed herein to
issue a certificate of representatives in accord with the foregoing.
[Text of Direction of Elections omitted from publication in this
volume.]
THE GREAT ATLANTIC & PACIFIC TEA COMPANY and UNITED RETAIL
EMPLOYEES OF BIRMINGHAM LOCAL 436, RETAIL , WHOLESALE & DE-
PARTMENT STORE UNION, CIO, PETITIONER . Cases Nos. 10-RC-
1755, 10-RC-1756, and 10-RC-1769. June 30, 19563
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before John S. Patton.
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 Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Houston, Murdock, and Styles].
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 Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner requests three separate units of grocery, produce,
and meat department employees in certain of the Employer's stores
in the Birmingham, Alabama, metropolitan area. The Employer's
stores in this area are herein collectively called the Metropolitan Area
Stores. In Case No. 10-RC-1755 the request is for a unit of these
employees in the Tarrant City store, in Case No. 10-RC-1756 the unit
is limited to the Fairfield store, and in Case No. 10-RC-1769 the Pe-
titioner requests a unit consisting of all the Employer's stores in the
city of Birmingham. The Employer and Intervenor contend that
these units are inappropriate, and assert that only a single unit em-
1 The Employer ' s motion to dismiss the petitions on grounds of Insufficient showing of
interest is denied as this matter is not litigable by the parties , but is exclusively for the
Board ' s administrative determination . The Employer ' s motion to dismiss the petitions
on grounds of inappropriateness of the proposed units is denied for the reasons stated
infra.
I Intervention was granted to Local No. 1657, Retail Clerks International Association,
AFL.
99 NLRB No. 155.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 1501
bracing all the Metropolitan Area Stores is appropriate. The Pe-
titioner indicated its willingness to represent any unit which the Board
might in this proceeding find appropriate. There is no bargaining
history for the employees involved in this case.
The Birmingham metropolitan area includes the city of Birming-
ham and the surrounding municipalities of Tarrant City, Fairfield,
Homewood, Mountain Brook, Irondale, and Bessemer. All these mu-
nicipalities, except Bessemer, are contiguous to Birmingham and
together constitute a single population center with no physical char-
acteristics to distinguish their corporate boundaries. Bessemer is ap-
proximately 5 miles beyond the Birmingham corporate limits, but
like the other satellite municipalities is closely linked with the Bir-
mingham nucleus by integrated communications and transportation
systems and common economic interests. The Employer operates
20 retail stores in the metropolitan area. Thirteen are in Birming-
ham, 2 are in Bessemer, and there is 1 in each of the remaining metro-
politan area municipalities.
The Metropolitan Area Stores are part of an administrative sub-
division maintained by the Employer termed the Birmingham "unit,"
with headquarters in Birmingham. There are 74 stores in the "unit"
of which all, except 2 in Tennessee and 3 in Mississippi, are in Ala-
bama. The Employer's central offices in Birmingham regulate and
control all stores in the "unit," but within the framework of this
central organization there is special direction and control of the busi-
ness and labor relations policies for the Metropolitan Area Stores as
a group, which distinguishes them from the other stores in the "unit."
Thus, there is frequent transfer and interchange of personnel between
the Metropolitan Area Stores pursuant to an official policy which does
not apply to the other stores in the "unit." Similarly, there is fre-
quent shifting of merchandise between the Metropolitan Area Stores,
but not between these and the other stores. Applicants for employ-
ment in the Metropolitan Area Stores apply at the central personnel
office, whereas applicants for jobs in the other stores apply in the areas
where they are located. One interviewer is assigned by the central
office exclusively to recruit, screen, and refer job applicants to the
Metropolitan Area Stores. There are several central office supervisors
who are assigned to these stores and not to others. The central office
fixes uniform prices for the Metropolitan Area Stores and places a
single advertisement for all these stores in the Birmingham news-
papers. It is clear from these circumstances that while the Employer
has not officially established the Metropolitan Area Stores as a separate
administrative subdivision, it nevertheless maintains them on this
basis.
1502 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
The Board has frequently held that employees of an employer's
chain stores comprising an administrative subdivision or entirely lo-
cated-within a distinguishable geographical area appropriately consti-
tute a single bargaining unit, unless some other basis exist to support
the appropriateness of units lesser in scope 3 In this case the only
basis advanced by the Petitioner to support its unit requests, is the
fact that each proposed unit consists of the Employer's only store or
all its stores within separate municipalities. We do not here regard
as significant the fact that Birmingham and its neighboring munici-
palities are politically separate, in the face of the social and economic
integration of all these municipalities into a distinct metropolitan
area. We also attach scant weight to the Petitioner's argument, in
view of the numerous factors denoting a'close community of interests
among the employees of all the Employer's Metropolitan Area Stores.
In addition to the frequent transfer and interchange of employees,
their common over-all supervision, the proximity of stores to each
other, and the centralized control and direction of the business and
labor relations policies of the Metropolitan Area Stores adverted to,
above, all employees in these stores have uniform wage scales, employee
benefits, and other conditions of employment. We conclude from,
all these circumstances that the several units requested by the Peti-
tioner are inappropriate, but that the employees sought to be repre-
sented appropriately belong in a single unit coextensive with all the-
Employer's Metropolitan Area Stores. As the Petitioner has indi-
cated a willingness to represent the employees in any unit found to,
be appropriate, we hereby deny the Employer's motion to dismiss the
petitions in this proceeding, and shall direct an election among the
employees in the foregoing appropriate unit.
There are approximately 206 part-time employees who work in the
Metropolitan Area Stores whom the Petitioner and Intervenor would
include in the appropriate unit. The Employer contends that they
should be excluded because they do not have interests sufficiently in
common with those of the full-time employees to warrant their inclu-
sion with them in the same bargaining unit.
Most of the part-time employees are 16- to 19-year-old students,
who frequently work 1 or 2 days during the week after school and all
day Saturday.4 Some are persons who have full-time jobs with other
'Safeway Stores, Incorporated, 96 NLRB 998 ; Kroger Company, 88 NLRB 194; C.
Pappas Company , Inc, 80 NLRB 1272.
4 Forty of the part-time employees worked during the period ending January 16, 1952,
more than 20 hours weekly . No data was presented at the hearing to show the exact
number of hours worked by the other part-time employees . One of the Employer's store
managers estimated that they averaged 2 to 10 hours weekly, but the Petitioner's wit-
nesses, experienced full -time employees in several of the Employer 's stores, indicated that
the average in their stores is substantially higher.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 1503
employers. Each store manager has a list of the part-time employees
who work at his store and occasionally contacts them in advance of the
week end to tell them to report for work. The usual practice, accord-
ing to the Employer, is for the part-time employees to call each.
Friday afternoon at the stores to inquire whether there is work for
them. On these occasions they may be hired to work until Saturday
evening at which time their employment terminates. Despite this
alleged termination, the Employer requires the part-time employees,
to report each Friday and failures to report, with explanations there-
for, are noted on their personnel records submitted by the stores to the
Employer's central personnel office. The implication that these em-
ployees do not have regular employment is further refuted by the-
testimony of the central office personnel manager that the store man-
agers prefer to use the more desirable part-time employees each week,.
and the testimony of a store manager that upon conclusion of their
work he tells these employees when next to report. This latter prac-
tice was confirmed by employees in several stores who also testified
that in the stores where they work generally the same part-time
employees work during successive weeks.
The average tenure of part-time employees is between 3 and 4
months, and their annual turnover was estimated at 200 to 250 per-
cent. It appears, however, that some of the part-time employees have
been working for periods substantially in excess of 4 months.
The duties of the part-time employees consist essentially of putting
groceries in bags and carrying them for customers. They are how-
ever assigned other duties including putting away stock, stamping
prices on groceries, and assisting in the meat, produce, and dairy
departments. During periods when the part-time employees are not
working, their duties are performed by full-time employees. Like
the full-time employees, the part-time employees apply for employ-
ment at the central personnel office in Birmingham where they fill out,
the same form used by all job applicants, are interviewed, and are
required to pass a physical examination. Also, like the full-time
employees, they are interchanged between the Metropolitan Area
Stores. Unlike them, however, they do not receive certain employee
benefits such as insurance, hospitalization, or vacations, but both
groups receive a Christmas bonus if employed for more than 6 months.
The part-time employees are hourly paid and are compensated only
for time actually worked, whereas the full-time employees are salaried
and receive pay for periods of excusable absence. Part-time em-
ployees may advance to full-time jobs, as evidenced by the fact that
29 of them in 1951 were promoted to such positions.
We conclude from the foregoing facts that the part-time employees
are regularly employed at work which is identical to or closely related
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that performed by full-time employees. As the Board's unit find-
ings are based upon functionally related occupational categories, we
shall include the part-time employees in the appropriate unit irrespec-
tive of such factors as tenure of employment or number of hours
worked per week.5 We shall not, however, accord voting eligibility to
all of them in the election hereinafter directed. As the Employer's
experience indicates that most of the part-time employees will not
continue with their employment more than 3 or 4 months, we believe
that until they have worked at least 4 months they must, in the cir-
,cumstances of this case, be regarded as temporary employees. We
find, therefore, that part-time employees who have worked for the
Employer during less than 16 separate weeks before the date of the
direction of election herein do not have a sufficient interest in the
selection of a bargaining representative to entitle them to vote. As
it appears that part-time employees who have worked for the Em-
ployer during at least 16 separate weeks continue to work for sub-
stantially longer periods, we shall accord voting eligibility to those
part-time employees who have worked during at least 16 separate
weeks for the Employer before the date of the direction of election
herein.
We find that all grocery, produce, and meat department employees
at the Employer's Birmingham, Alabama, Metropolitan Area Stores,
located in the municipalities of Birmingham, Tarrant City, Fairfield,
Homewood, Mountain Brook, Irondale, and Bessemer, including all
part-time employees, but excluding guards, professional employees,
store managers, assistant store managers, meat department heads, and
.all other supervisors as defined in the Act constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
-Section 9 (b) of the Act .0
[Text of Direction of Election omitted from publication in this
volume.]
6 The Great Atlantic & Pacific Tea Company, 96 NLRB 660; Franklin Simon it Co., Inc.,
-96 NLRB 671 ; The American Distract ' Telegraph Company of Pennsylvania , 96 NLRB No. 3
6 The Petitioner originally requested the exclusion from the proposed units of all regular
part -time employees working less than 20 hours weekly . At the hearing the Petitioner
amended its unit requests to include these employees . We are administratively satisfied
that the Petitioner has made a sufficient showing of interest in the expanded unit herein
found appropriate without the inclusion of these part -time employees , but no showing has
thus far been made sufficient to satisfy the Board 's administrative requirements for an
appropriate unit which includes the part -time ' employees . The Petitioner has however
-indicated its willingness to make an adequate showing based upon the scope and com-
position of any unit found to be appropriate . Accordingly, we hereby instruct the Regional
Director not to proceed with the election herein directed until he shall have first deter-
mined that the Petitioner has made a sufficient showing of interest among the employees
in the appropriate unit, who are eligible to vote in the election.