Valu King

National Labor Relations Board - Board Decisions

Sep 17, 1973

206 N.L.R.B. 1 (N.L.R.B. 1973)

VALU KING I
Luoma's Foods, Inc., d/b/a Valu King' and Retail
Store Employees Union, Local No. 880, Retail
Clerks International Association , AFL-CIO,2 Peti-
tioner and Meat Cutters District Union 427, Amal-
gamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Petitioner. Cases 8-
RC-8979 and 8-RC-9000
September 17, 1973
DECISION AND DIRECTION OF ELECTIONS
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, in Case
8-RC-8979 by Retail Store Employees Union, Local
No. 880, Retail Clerks International Association,
AFL-CIO, hereinafter called Retail Clerks, and a pe-
tition duly filed in Case 8-RC-9000 by Meat Cutters
District Union 427, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO,
hereinafter called Meat Cutters, the Acting Regional
Director for Region ,8 issued an Order Consolidating
Cases and a Notice of Hearing on March 23, 1973.
Thereafter on March 23 and 30 and April 11, 1973, a
hearing was held before Hearing Officer Joseph C.
D'Arrigo. Following the hearing and pursuant to Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, the Acting Regional Director
for Region 8 transferred this case to the Board for
decision. Thereafter, the Employer, Retail Clerks, and
Meat Cutters filed briefs in support of their respective
positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed,
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to repre-
sent certain employees of the Employer.
3. Questions affecting commerce exist concerning
the representation of,certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec7
1 The name of the Employer appears as amended at the hearing.
2 The name of the Petitioner in Case 8-RC-8979 appears as amended at
the hearing.
tion 2(6) and (7) of the Act.
Retail Clerks, Petitioner in Case 8-RC-8979, seeks
a unit of all the full-time and regular part-time selling
and nonselling employees at the Employer's Geneva,
Ohio, store located at 755 South Broadway, excluding
all the meat department employees and all the deli-
bakery department employees along with those
groups usually excluded, i.e., all office clerical em-
ployees, professional employees, guards and supervi-
sors as defined in the Act. Meat Cutters, Petitioner in
Case 8-RC-9000, seeks a unit of all employees em-
ployed in the meat department and deli-bakery de-
partment at the Employer's same facility, but
excluding all other employees and all office clerical
employees, professional employees, guards and super-
visors as defined in the Act. The Employer's position
is that the deli-bakery department employees have a
closer community of interest with the employees in
the unit sought by the Retail Clerks than with the
employees in the unit sought by Meat Cutters and
thus more appropriately belong in the unit sought by
Retail Clerks.
The Employer's store employs about 42 people of
whom 30 work in the grocery department, which in-
cludes produce and dairy; 6 work in the deli-bakery
department; and 6 work in the meat department. The
grocery department is supervised by Wayne Luoma,
the owner and general manager of the Employer. The
deli-bakery department's operations are coordinated
by Estelle Malick who, the parties stipulated, is not a
supervisor within the meaning of the Act. Luoma tes-
tified that Dick Beebe, the grocery manager, who,
along with Luoma, oversees the grocery department,
also handles employee problems in the deli-bakery
department. The meat department is supervised by
Paul Champion, a stipulated supervisor. Champion,
however, exercises no supervisory authority over the
deli-bakery department operations.
The deli-bakery department is located next to the
meat department in the rear of the store. The two
departments are covered with different color cano-
pies, however, and the deli-bakery's cases extend out
in the aisle further than the meat cases and the brick
facing in the deli-bakery does not extend into the
meat department. The uniforms which the two de-
partments' employees wear are the same as to style
but of different colors.
The duties of the six deli-bakery employees consist
of baking, cooking, pricing and stocking items, filling
the deli-bakery case, and waiting on customers. Baked
goods account for approximately 80 percent of the
department's sales. The sale of cold salads such as
tole slaw, potato salad, and macaroni salad accouaat
for about 15 percent of the department's sales 3 and
3 Most of these items are purchased already prepared and are simply
Continued
-206 NLRB No. 4
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the balance is derived from the sale of hot foods such
as barbecued spareribs, meat loaf, chicken, lasagana,
stuffed peppers and cabbage, and kielbasi sauce, and
the sale of party trays. Unlike the cold salads, which
are usually preprepared, the barbecued spareribs and
chicken are prepared by the deli-bakery employees 4
as are the party trays. The deli-bakery department
uses spareribs and chicken from the meat department
for barbequing and these items, along with the cold,
salads, are stored in the meat cooler in the meat de-
partment. About 60 percent of the deli-bakery em-
ployees' time is spent waiting on customers and the
balance of their time is spent preparing foods as noted
above.
The basic job duties of the three meatcutters and
three meatwrappers in the meat department are to cur
meat, to weigh, wrap, and price it, and to stock the
meat cases.5 Meatwrappers also wait on customers,
but less than 10 percent of their working time is devot-
ed to doing so. The Employer's luncheon meats, in-
cluding the commercially purchased prepackaged
luncheon meats, are stored only in the meat depart-
ment case and with the exception, of the meat used in
the party trays are sold only out of that department .6
The Employer's store is a 24-hour-a-day, 7-day-a-
week operation. The meat department, however,
works from 8 a.m. to 6 .p.m. every day but Friday and
Saturday when it closes at 9 p.m. The deli-bakery
opens anywhere from midnight to 8 a.m. And remains
open until 10 p.m. on Fridays, 8 p.m. on Saturdays,
and 7 p.m. on the remaining days 7
Luoma testified that the wage rates of the deli-
bakery and grocery employees are in the same -range
but that the deli-bakery's rates are lower than the
meat department scale. Luoma did not testify specifi-
cally as to what the grocery department employees
earn but testified that the deli-bakery employees make
$2.10 to $3.50 per hour; the meatwrappers average $3
per hour; and the meatcutters make from $4.09 to
$5.26 per hour. The meat department employees pos-
sess certain skills incident to their jobs. Thus, the
meatwrappers need to know the difference between
the various cuts of roasts and steaks and the ways to
cook meat and the meatcutters need a knowledge of
packaged and displayed by the deli-bakery employees.
a The remainder of the hot items are purchased already prepared from
outside sources.
5 The meat department employees handle only meat products.
6 Wayne Luoma testified that the deli-bakery employees have nothing to
do with the slicing of luncheon meat. Cheryl Harting, a deft-bakery employ-
ee, testified, however, that she has, on occasion , sliced luncheon meat for
customers and has stocked the meat case and, on one occasion , wrapped
meat. Harting, however, works when no other meat department employee is
present and testified that with regard to stocking the meat case , she was never
specifically told this was her job. Luoma testified that the manager on duty
stocks the case when no meat department employee is present.
7In the summer of 1972, however, during the tourist season , the deli-
bakery operated on a 24-hour basis.
.the -methodof cutting the various meats. There is no
apprenticeship program for the meat department or,
in fact, for any, other department in the store. The
record did not demonstrate that there are any skills
the deli-bakery employees need to perform their jobs.
Deli-bakery employees are never transferred into
the meat department when the meat department
needs employees. Meat department employees like-
wise do not temporarily transfer into the deli-bakery
to help out. There have been instances, however, of
employee, transfers from the grocery department into
the deli-bakery,8 and while in the deli-bakery these
employees performed the same work as the regular
deli-bakery employees .9
Inventories are kept according to each department
and although the chicken and spareribs used in the
deli-bakery are ordered by the meat department's su-
pervisor, this inventory is kept separately according to
department and the transfer of these items to the deli-
bakery-is handled through an in-store transfer sheet.
All the, store's employees receive a break in the
morning and the afternoon. All employees punch the
same timeclock and fringe benefits are the same for
all employees.
Meat Cutters introduced at the hearing the collec-
tive-bargaining agreement between it and the Cleve-
land Food Industry through which it attempted to
show that delicatessen and meat department employ-
ees in the area of, the agreement 10 are represented by
Meat Cutters." Paul Gaunter, Meat Cutters business
representative, testified to various stores in the area
where Meat Cutters represent deli-operations which
also do baking. Gaunter did not know whether the
Meat Cutters had ever been certified by the Board at
any of the various operations about which he testified.
There is no history of bargaining at the Employer's
-store.
The Board has traditionally found, in appropriate
circumstances, that a separate unit of meat depart-
ment employees in a retail store and a separate unit
of employees in, the remaining departments of the
8 Luoma listed two cashiers who transferred in on a temporary basis in the
summer of 1972 and one employee who divided her time between the grocery
and the deli-bakery until she finally asked, and was allowed , to work full time
in the deli-bakery.
9 Grocery-department employees may clean up in the deli-bakery area and
stack the inventory for the deli-bakery. Deli-bakery employees may help in
the unloading of merchandise and, when they do, they work with the grocery
de?artment employees.
°'The area covered by the agreement includes the location in which the
Employer's store is situated.
1 The relevant provision of the agreement, article 1 , in relevant part states
that:
Specifically, although only the Employer's store meat departments in the
aforementioned counties are covered by this Agreement, the Employer
recognizes that the Union has work and collective bargaining jurisdic-
tion over the Employer's store delicatessen operations , store prepared
and/or hot food's operations....
VALU KINC 3
store are appropriate units." Here, Meat Cutters de-
sires to represent a unit of the Employer's deli-bakery
as well as meat department employees and Retail
Clerks, agreeing with Meat Cutters' request, wishes to
represent a unit of employees in the remaining depart-
ments. In the circumstances of this case, however, we
find inappropriate the unit requested by Meat Cutters
since we conclude that the deli-bakery employees ap-
propriately belong in a unit with grocery, produce,
and dairy employees than with the employees in the
meat department.
We note, first of all, that the overwhelming percent-
age of the deli-bakery employees' workday is spent in
the preparation of nonmeat items such as bakery
items and cold salads. The deli-bakery employees
handle meat products no more than 5 percent of their
workday and meat department employees handle
nothing but meat products all day. The deli-bakery
and the meat department are separately supervised.
However, the deli-bakery and grocery employees
have the same immediate supervision. The deli-bak-
ery employees do not possess the skills,of meat depart-
ment employees. Unlike the meat department
employees, the deli-bakery employees spend the
greater portion of their day waiting on customers as
do the other grocery personnel. Further, the inter-
change that exists in the store is between the deli-
bakery and jobs in the grocery department. While the
deli-bakery and meat department are adjacent to each
other and the deli-bakery employees at times go to the
meat cooler in the meat department thus allowing for
some contact with the meat department's employees,
we note that the Employer has tried to make the de-
partments visually distinct and, outfits the depart-
ments' employees in different-colored uniforms. In
view of the differing job functions, separate supervi-
sion, difference in job skills, and lack of interchange
between the deli-bakery employees and the meat de-
partment employees, we find a unit of deli-bakery and
meat department employees to be inappropriate."
Rather, we find that the deli-bakery employees' du-
ties, functions, and interests are such as to make ap-
propriate a unit consisting of the deli-bakery
employees and the grocery employees of the store
excluding the meat department.14 We will therefore
direct separate elections in which the meat depart-
ment employees will vote whether or not they desire
to be represented by Meat Cutters and the grocery
and deli-bakery employees will vote whether or not
12 See, e.g., The Great Atlantic & Pacific Tea Company, Inc., 132 NLRB 744;
Bruno's Food Store, Incorporated , 131 NLRB 1023.
13 Ideal Super Markets, 171 NLRB 1; Unishops of Clarkms, Inc., 171 NLRB
1435.
14 Priced-Less Discount Foods, Inc., d/b/a Payless, 157 NLRB 1443; Sea-
way Food Town, Inc., 171 NLRB 729.
they desire to be represented by Retail Clerks.15
We therefore find that the following unit is appro-
priate in Case 8-RC-8979:
All full-time and regular part-time selling and
nonselling employees employed in the grocery,
produce, dairy and deli-bakery departments at
the Luoma's Foods, Inc., d/b/a Valu King store
located at 755 South Broadway, Geneva, Ohio,
excluding all employees in the meat department,
all office clerical employees, and all professional
employees, guards and supervisors as defined in
the Act.
In Case 8-RC-9000, we find that the following unit
is appropriate:
All full-time and regular part-time employees
employed in the meat department at the Luoma's
Foods, Inc., d/b/a Valu King store located at
755 South Broadway, Geneva, Ohio, excluding
all grocery, produce, dairy and deli-bakery de-
partment employees, all office clerical employ-
ees, and all professional employees, guards and
supervisors as defined in the Act.
The eligibility of various employees is at issue. The
Employer contends that Dick Beebe, Bill Jenner, Ray
Mundie, and Kevin Pengal are supervisors should be
excluded from any unit found appropriate. At the
hearing, both Retail Clerks and Meat Cutters took the
position that these four were not supervisors.16 The
two unions contend that Helen Luoma, the mother of
Wayne Luoma, should be excluded because her famil-
ial relationship gives her a special status which aligns
her interests with management. The Unions would
exclude Harold Miller because of his familial relation-
ship with Wayne Luoma and because of the alleged
sporadic nature of his employment. Finally, the
Unions would also exclude Ralph Sadowski because
of the alleged sporadic nature of his employment. The
Employer would include Helen Luoma, Miller, and
Sadowski in any units found appropriate.
Wayne Luoma testified that he is responsible for
15 We do not deem this a situation where the deh-bakery employees should
be permitted to vote whether they wish either Meat Cutters or Retail Clerks
as their representative, or whether they wish to remain unrepresented, since
we have determined on the facts that the deli-bakery employees do not have
a sufficient community of interest with the employees in the meat department
to warrant their possible representation in such a unit. Cf. The Kroger Compa-
ny, Atlanta Division, 202 NLRB No. 117, and The Kroger Co, 201 NLRB No.
138, where the Board found on different facts that delicatessen employees
might be properly represented in either a Retail Clerks or Meat Cutters unit.
In its brief, Retail Clerks now agrees that Beebe is a supervisor . Howev-
er, Meat Cutters had not indicated it has changed its position as regards
Beebe and so we will consider his eligibility , infra.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire operation of the store. He makes all person-
nel decisions which affect employees and it is he who
does the actual hiring, firing, and disciplining of all
the employees. Luoma stated that his supervisory hi-
erarchy is as follows:
Luoma-General Manager
Beebe-Grocery Manager-Days
Jenner-Grocery Manager-Evenings
Mundie-Night Manager
Pengal-Day Manager
Champion-Head Meat Cutter 17
Beebe, Jenner, Mundie, and Pengal all have access
to the store office but none keeps or maintains any
personnel records regarding any employee. There are
four sets of keys to the store. Luoma and Beebe each
have a set, the third set is held by the head cashier,
whom the parties stipulated is not a supervisor, and
the fourth set rotates to the highest ranking person in
the store at the time. All of the four alleged supervi-
sors have authority to approve customer checks but
this is done according to a preestablished policy from
which they may not deviate.
Dick Beebe-Luoma testified that Beebe is second
in command and that he and Beebe alternate their
working hours to cover the store from 8 a.m. to mid-
night 5 days a week. Luoma testified that 60 percent
of Beebe's time is spent performing work identical to
that of other grocery employees; 15-20 percent of his
time is spent telling other employees what to do; and
the balance of his time is spent in related clerical work
in the office. Beebe is salaried and does not punch a
timeclock or receive overtime. When Beebe is on duty,
he oversees the operation of the entire store with the
exception of the meat department . Beebe can assign
jobs and has also scheduled employees for overtime."
He has granted employees time off for sickness and
has Luoma's approval to handle employee problems
should they arise. Although Luoma does all the actual
hiring, Beebe does interview applicants for jobs and
makes recommendations to Luoma which Luoma
states he considers very seriously. According to Ray
Mundie, he has seen only Luoma and Beebe in the
gold coats which he stated are emblematic of manage-
ment.
On the basis of the foregoing, we find Beebe to be
a supervisor and shall exclude him.
Bill Jenner-Luoma testified that Jenner's supervi-
sory authority is identical to Beebe's. Jenner is sala-
ried and does not punch a timeclock or receive
overtime. Luoma testified that at those times when he
or Beebe is not in the store and Jenner is present, it
17 The parties stipulated that Champion is a supervisor and should be
excluded from any unit found appropriate.
is Jenner's duty to oversee all the store's operations.
There are three such nights when Jenner is responsible
for the store's operations. These are the nights when
stock for the store is delivered and there are approxi-
mately 10 employees present whom Jenner directs in
the unloading and stocking of merchandise. Like
Beebe , Jenner spends 60 percent of his time in work
identical to that of unit employees, 15-20 percent of
his time in directing employees, and the balance doing
clerical work. Luoma testified that he "quite often"
asks Jenner's opinion on how a new employee is work-
ing out 19 and that Jenner does make recommenda-
tions as to the hire and fire of employees. Luoma
stated that he discharged employee Frank Gillette on
Jenner's recommendation. Jenner had hired two em-
ployees with Luoma's approval since the Unions had
filed their petitions.
We conclude that Jenner is a supervisor who should
be excluded. Inter alia, we rely on the facts that he
responsibly directs the work of some 10 employees
three nights a week at a time when he is the highest
ranking person in the store and that he has effectively
recommended the firing of at least 1 individual.
Ray Mundie-Mundie is classified as the
Employer's "Night Manager." He earns $2.85 per
hour, punches a timeclock, and is paid for working
overtime. Mundie's rate of pay is lower than that of
certain of the higher paid nonsupervisory personnel.
Mundie works from midnight to 8 a.m. three nights a
week, and is the highest ranking employee in the store
at that time. On the other two nights, Bill Jenner is
also present and directs Mundie and the other em-
ployees in their jobs.
Mundie has the authority to approve customer
checks, can make change from the office, can grant
refunds, and is responsible for verifying voids on cash
register tapes, but these are also the duties of the head
cashier who is not a supervisor. He is in charge of the
merchandise inventory and is also in charge of or-
dering the store's frozen food items and for seeing that
the frozen food stock is kept up but other admittedly
nonsupervisory employees also are in charge of or-
dering various items.
Under all the circumstances, we conclude that
Mundie is not a supervisor and will include him in the
appropriate unit. While Mundie is the highest ranking
employee in the Employer's store on three nights, the
record shows that at those times Mundie has a list of
items to perform which has been given to him by
Luoma. Mundie carries out those duties and during
this time does not responsibly direct the few other
employees present. His duties generally are shared by
other admittedly nonsupervisory personnel and thus
Is In addition, he reviews the scheduling of employees ' work hours with 19 Retail Clerks claims that Luoma asks others about the performance of
Luoma. employees and that this is done in a casual vein.
VALU KING 5
we will include him in the unit 2°
Kevin Pengal-Pengal is classified as the
Employer's "Day Manager." He is paid $2.85 per
hour, punches a timeclock, and is paid for working
overtime. Like Mundie, his rate of pay is lower than
certain of the higher paid nonsupervisory personnel.
Pengal's general duties are the same as those of Mun-
die.21 '
Pengal is in charge of the bread department and is
responsible for ordering all the bread for the depart-
ment.22 Although Luoma testified that Pengal is the
highest ranking employee in the store for the greater
portion of his worktime, a comparison of the various
most recent schedules of Luoma, Beebe, Jenner, and
Pengal indicates that Pengal works at times when at
least one of these three men is present.
Luoma occasionally gives Pengal a list of things to
do. The list also contains instructions for the stock-
boys and Pengal relays the instructions to the stock-
boys. Since he is more experienced than most of the
stockboys, they often ask him how to stock merchan-
dise. Pengal has granted overtime on one occasion but
this was with the prior approval of Luoma. Although
Pengal has asked employees to report for work in an
emergency, he has done so at the direction of others.
We conclude that Pengal is not a supervisor and we
will include him in the appropriate unit. Pengal's work
duties are of a routine nature and any instructions he
may give the stockboys are based not on his position
but on his greater experience. Moreover, to the extent
the record demonstrates that Pengal exercises some
degree of direction over the stockboys, this direction
is of a ministerial nature and does not require the use
of independent judgment 23
Helen Luoma-Employed as a meatwrapper, she is
the mother of Wayne Luoma, the Employer's general
manager and owner. She is the sole beneficary of her
late husband's estate and, under the terms of his will,
is due payment for his 50 percent share of the business
from her son, Wayne. Her rate of pay and conditions
20 Quick Shop Markets, Inc., 168 NLRB 180; The Great Atlantic & Pacific
Tea Company, 132 NLRB 799.
21 Thus, like Mundie, he has authority to approve customer checks, make
change for the cashiers , approve cashier mistakes on the register tape, and
grant refunds.
22 He is also the only employee in the department
23 See fn . 20, supra.
of employment are the same as the other meatwrap-
pers.
In view of the close family ownership of the corpo-
ration and the active day-to-day management of the
corporation by Helen Luoma's son, we find that the-
interests of Helen Luoma are substantially different
from those of the other employees and we shall ex-
clude her from the unit.24
Harold Miller-Miller is the husband of Wayne
Luoma's sister-in-law. He was hired in May 1972 as
a part-time stock clerk. At the time of the hearing in
this) proceeding, Miller has not averaged 4 hours of
work a week for the year at the Employer' s store
because he had not worked for the entire summer of
1972 due to his commitment to his full-time job else-
where. Miller receives the same rate of pay and fringe
benefits as other part-time employees. Although Luo-
ma testified that Miller has been on a "regular" sched-
ule since January 1973, he also noted that Miller is
called when he is needed and has the option to refuse
work because of other commitments. Miller worked at
least 12 hours during the month of March 1973.
In these circumstances, since we cannot now de-
termine Miller's eligibility as an on-call employee, we
shall allow Miller to vote subject to challenge.25
Ralph Sadowski-Sadowski is employed as a part-
time night stock clerk. His wages and work duties are
the same as other night stock clerks and Luoma stated
he averaged 10 or 12 hours a week when he worked.
It is unclear from the record however whether the 10
to 12 hours of work that Sadowski performed and to
which Luoma alluded refers to that period of time
when Sadowski was a "pretty regular" employee, i.e.,
until January 1, 1973; or refers to his work hours at
the time of the hearing. Since Luoma stated that Sa-
dowski may skip a couple of weeks in his work, we
conclude that even if the 10 to 12 hours referred to
Sadowski's most recent work schedule we could not
determine whether Sadowski as an on-call employee
meets the eligibility requirements and thus we shall
allow him to vote subject to challenge.
[Direction of Elections and Excelsior footnote
omitted from publication.]
21 See Parisoff Drive In Market, Inc., 201 NLRB No. 102.
25 Mademoiselle Shoppe, Inc., 199 NLRB No. 147; Davison -Paxon Compa-
ny, 185 NLRB 21, and cases cited therein at fn. 7.