Yaohan Of California, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1980

252 N.L.R.B. 309 (N.L.R.B. 1980)

YAOHAN OF CALIFORNIA, INC.
Yaohan of California, Inc.' and United Food and
Commercial Workers Union, Local 1288, United
Food and Commercial Workers International
Union, AFL-CIO, 2 Petitioner. Case 32-RC-
922
September 24, 1980
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On February 20, 1980, the Acting Regional Di-
rector for Region 32 issued a Decision and Direc-
tion of Election in the above-entitled proceeding in
which he found that the petitioned-for unit of gro-
cery employees is an appropriate unit for the pur-
poses of collective bargaining. In so doing, the
Acting Regional Director rejected the Employer's
position that only a storewide unit is appropriate.
Thereafter, in accord with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Employer filed a
timely request for review of the Acting Regional
Director's decision, and the Petitioner filed a brief
in opposition thereto. By telegraphic order dated
March 28, 1980, the National Labor Relations
Board granted the Employer's request for review.
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 considered the entire record in
this case with respect to the issue under review and
makes the following findings:
The Employer operates a retail grocery store in
Fresno, California. It employs approximately 37
employees in eight functional areas of the store:
meat department, fish department, delicatessen,
produce department, grocery department, check-
out, snackbar, and office. There is no history of
collective bargaining. The Acting Regional Direc-
tor found appropriate a unit of grocery employees,
including stock clerks, courtesy clerks, checkers,
produce clerks, and custodian, but excluding meat,
fish, and delicatessen department employees, snack-
bar employees, confidential employees, guards and
supervisors as defined in the Act.3
' The name of the Employer is as it appears in the petition and the
notice of representation hearing. The Acting Regional Director's decision
and the telegraphic order herein referred to the Employer as "Yoahan."
2 The name of the Petitioner appears as amended at the hearing.
3 As the record does not show what functions the bookkeeper per-
forms, the Acting Regional Director made no determination as to her
unit placement but allowed her to vote subject to challenge.
252 NLRB No. 50
Two butchers and two clerks work in the meat
department. The butchers work exclusively with
boxed or precut beef, pork, and chicken; they do
not handle sides or quarters of beef. The boxed
beef requires cutting and trimming for display and
preparation of special orders but does not require
the exercise of more difficult butchering tasks. The
Employer has no apprenticeship or formal training
program. The meat clerks primarily take customer
orders, weigh and wrap products, and arrange
meat displays in the grocery area. They spend ap-
proximately 20 percent of their time assisting in the
fish and delicatessen departments; meat department
employees do not generally substitute in other de-
partments.
There are four clerks in the fish department who
perform over-the-counter sales, display fish, and
take and wrap customer orders. About 30 percent
of the fish sold is cut to order, primarily by the su-
pervisor. The fish department clerks spend approxi-
mately 20 percent of their time substituting for
meat and delicatessen clerks; they do not help in
the grocery department.There are four clerks in
the delicatessen department who are engaged in
over-the-counter sales and the preparation of food
sold both in the delicatessen and in the snackbar.
Some of the supplies are from the grocery area.
One clerk divides her day between the delicatessen
department and the snackbar. The clerks spend ap-
proximately 20 percent of their time working in the
meat and fish departments. In preparation for the
store's opening, delicatessen clerks assisted in the
grocery area; they have not done so since.
There are four waitresses, one cook, and a part-
time dishwasher in the snackbar. As indicated
above, one of the waitresses splits her time with
the delicatessen department. Waitresses are prohib-
ited from receiving tips. A separate accounting
system is used for the snackbar, and a separate cash
register is used for customer purchases. Some of
the food served in the snackbar is prepared by the
delicatessen department. Other than the dual-func-
tion waitress, there is no interchange of employees
between the snackbar and other departments.
Included in the unit found appropriate by the
Acting Regional Director are two produce clerks,
four stock clerks, five checkers, three courtesy
clerks, and the custodian. The two produce clerks
work in the general grocery area and are responsi-
ble for displaying the produce, assisting customers,
and keeping the produce area clean. They do not
work in any other departments of the store. The
four stock clerks in the grocery department stock,
mark, and display grocery products. The record
does not show if they work outside their depart-
ment, but it does show that they do not work in
309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the excluded departments. The checkers operate
the cash registers, and the courtesy clerks sack gro-
ceries and deliver groceries to customers' cars. The
record does not show how much time, if any, they
work outside their department. The custodian
works throughout the store.
The Employer's general manager is in overall
charge of the store and has primary authority to
hire and fire employees, to schedule hours, and to
authorize overtime. In addition, there are four su-
pervisors respectively in charge of the following
employees: (1) meat, fish, delicatessen, and produce
employees; (2) grocery department employees; (3)
checkout area and snackbar employees; and (4)
office and accounting employees.
The Acting Regional Director found that the
meat department employees lacked a sufficient
community of interest with the grocery employees
on the basis of the physical separation of their
work area, their differently colored uniforms, their
performance of different tasks and skills, and their
minimum contact and absence of interchange with
grocery employees. The Acting Regional Director,
in excluding the fish and delicatessen department
employees, found that their interests were more
closely aligned with the meat department employ-
ees than with the grocery employees based on the
proximity of their departments, their common su-
pervision, the interchange of employees among the
three departments, the similarity of their uniforms,
and some similarity of skills in the meat and fish
departments. In excluding the snackbar employees,
the Acting Regional Director relied on their sepa-
rate work area and their lack of interchange with
grocery employees. He also noted the contact be-
tween snackbar employees and delicatessen em-
ployees and the assignment of the dual-function
waitress.
As is evident, determination of whether the gro-
cery employees constitute a separate appropriate
bargaining unit depends ultimately on whether the
meat department employees possess a separate and
distinct community of interest. The Board has often
found in recent years that meat department em-
ployees of grocery stores have a distinguishable
community of interest, 4 but it has done so on the
4 See, e.g., Buehler's Food Markets, Incorporated, 232 NLRB 785 (1977);
R-N Market, Inc., 190 NLRB 292 (1971); Allied Super Markets Inc..
Allied Discount Foods Division, 167 NLRB 361 (1967); Big Y Supermarkets,
161 NLRB 1263 (1966); Priced-Less Discount Foods Inc., d/b/a Payless,
basis of both their separate identity (e.g., separate
work areas, etc.) and their special skills. Thus, in
R-N Market, Inc., the Board emphasized that the
separate interests of the meat department employ-
ees were underscored by the fact that the employer
operated a custom cut system which "requires the
services of two highly skilled meatcutters." Here,
however, the meat department employees do not
exercise the highly skilled specialized tasks tradi-
tionally performed by butchers and meatcutters,
but work with boxed meats requiring significantly
less specialized skill. The traditional skilled work is
instead performed by the meat distributor at its
packing house.
For the foregoing reasons we find that the meat
department employees do not exercise the tradi-
tional meatcutting skills indicative of a separate
community of interest and accordingly should be
included in the unit of grocery employees. Ash-
craft's Market, Inc., 246 NLRB No. 68 (1979). As
the other departments were excluded on the basis
of the alignment of their interests with the meat de-
partment, the employees in these departments shall
also be included in the unit. Accordingly, we find
the following employees constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees
of the Employer's retail food store in Fresno,
California, including meat, fish, and delicates-
sen department employees, snack bar employ-
ees, produce clerks, stock clerks, checkers,
courtesy clerks, and custodian; excluding all
confidential employees, guards, and supervi-
sors as defined in the Act.
DIRECTION
It is hereby directed that, as part of the investi-
gation to ascertain a representative for the purposes
of collective bargaining among certain employees
employed by Yaohan of California, Inc., in the ap-
propriate unit, the Regional Director for Region 32
shall, at a date to be determinated by him, open
and count the impounded ballots and, thereafter
prepare and cause to be served on the parties a
tally of ballots, upon the basis of which he shall
take such further action as he deems appropriate.
157 NLRB 1143 (1966); Mock Road Super Duper, Inc., 156 NLRB 983
(1966).
310