Big Y Foods, Inc. v. N.L.R.B.
| Decision Date | 11 June 1981 |
| Docket Number | No. 80-1578,80-1578 |
| Citation | 651 F.2d 40 |
| Parties | 107 L.R.R.M. (BNA) 2971, 91 Lab.Cas. P 12,815 BIG Y FOODS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Jay S. Siegel, Hartford, Conn., with whom Edward S. G. Hicks, Jr., and Siegel, O'Connor & Kainen, P. C., Hartford, Conn., were on brief, for petitioner.
Sharon Margolis Apfel, Atty., Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Peter M. Bernstein, Atty., Washington, D. C., were on brief, for respondent.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and WYZANSKI, Senior District Judge. *
This case is before the Court on a petition to review and set aside an order of the National Labor Relations Board ("NLRB") based upon alleged violations of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("Act"), 29 U.S.C. §§ 151-68, directing the petitioner, Big Y Foods, Inc. ("the Company") to bargain with the Amalgamated Meat Cutters, Food Handlers and Affiliated Workers of North America, Local Union 33, a/w Amalgamated Meat Cutters and Butcher Workers of North America, AFL-CIO ("Meat Cutters") which was certified, following an election, as the representatives of meat department employees in 11 of the Company's stores. The Board had cross-petitioned for enforcement of its decision and order.
The Company contends that the order is invalid because a unit of employees in the meat departments of the Company's 11 stores does not constitute an appropriate bargaining unit within the meaning of Section 9(b) of the Act.
The proceedings before the NLRB began when on August 16, 1971 the Retail Store Employees Union, Local 1459, Retail Clerks International Association, AFL-CIO ("Retail Clerks") filed in Case 1-RC-11708 a petition seeking to represent an overall unit of grocery and meat department employees at the Company's 11 unrepresented stores. On August 16, 1976 the Meat Cutters filed in Case 1-RC-14664 a petition seeking to represent a unit limited to the Company's meat department employees at the same 11 unrepresented stores. On September 22, 1976 the NLRB's Regional Director ordered a consolidation of the two cases. Thereafter, he held a hearing at which there was evidence to the following effect.
The Company, a Massachusetts corporation, operates in Western Massachusetts a chain of 16 supermarkets for the retail sale of meats, groceries, and other food products.
Before the petitions were filed with the NLRB none of the employees in 11 of those stores had been represented for collective bargaining. There are employed in those 11 stores 850 to 1,000 persons, of whom 72 are the so-called "meat department employees" involved in this case. That group breaks down into 11 head meat cutters, 8 meat cutters, 18 apprentice meat cutters, and 35 meat wrappers and clerks.
In 5 of the Company's stores not covered by the petitions the employees in all departments have been for 10 years covered by collective bargains between their representative, Meat Cutters Union, and the Company.
The Company is centrally operated. The administrative activities of all 16 stores and their records are handled exclusively at the central office. Virtually every major management decision concerning the stores including labor relations policies, advertising, merchandising, pricing, physical layout of the stores, hours of operation, hiring, wage scales, promotions, discipline and transfers are under the direct control and supervision of the personnel in the central office. That office employs specialists for each department who not only coordinate purchasing, but also regularly visit the stores in order to supervise merchandising and, in general, oversee the operation of the various departments. In this latter respect, these specialists work in conjunction with the store managers.
All the employees in the 11 unrepresented stores receive the same fringe benefits such as leave time, holidays and insurance. Seniority for layoff purposes and benefit levels is based on service in all departments. Working hours for all employees are the same.
All the foregoing policies and procedures apply to employees in the meat department of the 11 stores as well as to other employees.
The meat department in each store is the only department that has a formal apprenticeship program. Under it, employees, a number of whom began as meat clerks, are trained as meat cutters primarily by on-the-job training. Substantially higher wages are paid to meat cutters than to meat clerks.
Meat cutters are not trained to work in other departments, are never transferred temporarily or permanently to other departments, and have little contact with employees of other departments.
Meat clerks may be transferred to serve permanently or temporarily in other departments. When in the meat department, they work in close association with meat cutters; they clean equipment used in the meat department, process some meat, wrap meat, receive customers' requests for special cuts, supply new product to cutters, and stock meat in display cases. When transferred to other departments, meat clerks are associated with and do work similar to clerks regularly employed in those departments.
Not only may meat clerks serve either permanently or temporarily in other departments, but clerks from other departments may serve permanently or temporarily in the meat department. Each transfer which is in excess of 30 days is called "permanent"; transfers for shorter periods of service are called "temporary."
In the year 1974 there were permanent transfers from the meat department of 5 persons (of whom one, Lowell, had earlier in the year been transferred from the delicatessen department) and to the meat department of 41 persons. In the year 1975 there were permanent transfers from the meat department of 5 persons and to the meat department of 41 persons. In the year 1976 up to September 25, there were permanent transfers from the meat department of 25 persons (of whom some had earlier been transferred from other departments to the meat department) and to the meat department of 22 persons (of whom some had earlier been transferred from the meat department to other departments). See Exs. 6, 7, and 8.
With respect to temporary transfers, Ex. 9 shows that there were in 1976 up to August 16, 1976 1,353 interdepartmental interchanges between the meat department and other departments. Interchanges occurred almost every week. Some of the transfers were for only a few hours.
After taking the foregoing evidence, the Regional Director transferred the case to the Board.
On September 29, 1978 the Board issued its Decision and Direction of Elections. It did not purport finally to exercise its powers under § 9(b) of the Act. 1 Instead, it found that for purposes of collective bargaining, "the meat department employees at the Employer's 11 unrepresented stores ... may constitute an appropriate unit" (emphasis added) and "a storewide unit, including the meat department, would also be appropriate" (emphasis added) (A. 8-9, fourth paragraph). The decision then directed the creation of two voting groups: Unit A, including all meat department employees in the 11 stores who "shall vote whether they desire to be represented by Meat Cutters, Retail Clerks, or no union"; and Unit B, including all other employees in the 11 stores who "shall vote whether or not they desire to be represented by Retail Clerks." (A.14) The only other now relevant direction by the Board provided that: "If the majority of the employees in voting group A select Meat Cutters, they shall be deemed to have indicated their desire to constitute a separate bargaining unit, and the Regional Director shall issue a certification of representative for such group, which the Board under the circumstances finds to be an appropriate unit for collective bargaining." (A.14)
On November 3, 1978, the Retail Clerks, reciting that they and the Meat Cutters "have reached agreement on a merger," filed a motion to amend the Direction of Elections, requesting that its name be withdrawn from the ballot in Unit A and that separate elections be conducted in the two units. The Company filed an objection to the motion. On December 29, 1978, the Board issued an Order and Amended Direction of Elections granting the Retail Clerks' motion to withdraw from the ballot. Thereafter, on January 23, 1979, the Retail Clerks requested that its petition in Case 1-RC-11708 be withdrawn entirely.
On January 26, 1979, a secret ballot election in Unit A was conducted pursuant to the Board's Order. The Union won the election by a vote of 34 to 30, with 2 challenged ballots. On February 1, 1979, the Regional Director issued an order severing cases and permitting withdrawal of the Retail Clerks' petition with prejudice, thus eliminating the election in Unit B.
On January 2, 1980, the Board issued its Decision and Certification of Representative certifying the Union as the collective bargaining representative of the Company's meat department employees.
Following its certification, the Union requested that the Company commence collective bargaining, but the Company refused. Thereafter, the Union filed an unfair labor practice charge and, on March 26, 1980, the Board's Regional Director issued a complaint alleging that the Company had refused to bargain in violation of Section 8(a)(5) and (1) of the Act. In its answer, the Company admitted its refusal to bargain, but challenged the validity of the Board's certification on the ground that the bargaining unit was inappropriate. On April 28, 1980, the General Counsel moved for summary judgment. On August 28, 1980, the Board granted the General Counsel's motion for summary judgment, found that the...
To continue reading
Request your trial
-
American Hosp. Ass'n v. NLRB
...in one case is applied to subsequent representation cases to determine appropriate bargaining units. See, e.g., Big Y Foods v. NLRB, 651 F.2d 40, 45 (1st Cir.1981) (presumption that separate meat department is appropriate); NLRB v. New Enterprise Stone & Lime Company, 413 F.2d 117, 118 (3rd......
-
Beth Israel Hosp. and Geriatric Center v. N.L.R.B., AFL-CI
...W. Mays, Inc., 675 F.2d 442, 444 (2d Cir. 1982); Alaska Statebank v. NLRB, 653 F.2d 1285, 1287 (9th Cir. 1981); Big Y Foods, Inc. v. NLRB, 651 F.2d 40, 45-46 (1st Cir. 1981); NLRB v. New Enterprise Stone & Lime Co., 413 F.2d 117, 118 n.5 (3d Cir. 1969); cf. Magic Pan, Inc. v. NLRB, 627 F.2d......
-
Friendly Ice Cream Corp. v. N.L.R.B.
...to employees the fullest freedom in exercising the rights guaranteed by [the Act]." 29 U.S.C. Sec. 159(b); see also Big Y Foods, Inc. v. NLRB, 651 F.2d 40, 45 (1st Cir.1981). The Board is not required to select the most appropriate unit in a particular factual setting; it need only select a......
-
N.L.R.B. v. Cardox Div. of Chemetron Corp.
...a unit determination, 12 the section's language expressly requires that the Board make a decision "in each case." Big Y Foods, Inc. v. NLRB, 651 F.2d 40, 45-46 (1st Cir.1981); Long Island College Hospital v. NLRB, 566 F.2d 833, 840-41 (2d Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1647......