Associated Grocers, Inc.

National Labor Relations Board - Board Decisions

May 13, 1963

142 N.L.R.B. 576 (N.L.R.B. 1963)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations , to join or assist International Union , Allied Industrial Workers
of America, AFL-CIO, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all of such activities , except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment , as authorized in Section 8 (a) (3) of the Act.
REALIST, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate with the Board 's Regional Office , 316 Federal Build-
ing, 110 South Fourth Street , Minneapolis , Minnesota , 55401 , Telephone No. 339-
0112 , Extension 2601 , if they have any question concerning this notice or compliance
with its provisions.
Associated Grocers, Incorporated and Paul D . Jackson. Case
No. 19-RC-3177. May 13, 1963
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. The hearing officer's
rulings made at the hearings are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner claims to represent employees of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the' Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7), of the Act, for the following
reasons:
The Petitioner seeks to represent seven bakery truckdrivers of the
Employer who are not presently being represented by the Intervenor.'
The Employer contends that these employees are, or should be, mem-
bers of the Intervenor and are already covered under an existing
collective-bargaining agreement.
The Employer is a cooperative engaged in the distribution of food
products to its members, who are independent supermarket operators.
It has a warehouse in Seattle from which most of the products it
supplies to its members are distributed, by approximately 120 drivers
in 35-foot tractor-trailers. All of Associated's tractor-trailers are
of an identical type except that the trailers used to haul baked goods
have heating units to keep the baked goods fresh. The duties of all
3 General Teamsters Local Union No. 174 , affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America , intervened on the basis of
its contract with a multiemployer association of which the Employer is a member.
142 NLRB No. 64.
ASSOCIATED GROCERS, INCORPORATED 577
of the drivers are the same, the bakery drivers hauling bakery goods
and drug products (which make up between 10 and 40 percent of
their loads), whereas the other drivers carry general loads. All
drivers have the same supervision and working conditions. Relief
bakery drivers are drawn from Associated's other drivers and inter-
change occurs, although not on a regular basis.
Associated's drivers are represented by the Intervenor under a
collective-bargaining agreement with Food Industry, Inc., a multi-
employer association which represents eight grocery distributors,
including Associated. This collective-bargaining agreement, which
is effective from April 1, 1962, until April 1, 1965, provides in sec-
tion I, 1, that Intervenor is "the sole and exclusive bargaining agency
for all employees of the Employer whose job classification is set
forth in this Agreement." Section VIII, 1, lists as one of the job
classifications "Six Wheelers (Double Axle), Semi-Trucks and
Trucks and Trailers."
The seven bakery truck drivers whom Petitioner seeks to represent
are apparently covered by the terms of Intervenor's collective-
bargaining agreement; however, they do not receive the rate listed
for their job classification. Instead, they receive a slightly higher rate
which is the same as that received by bakery drivers represented by a
bakery drivers local of the Teamsters (Local 227). The bakery drivers
involved in this proceeding were originally members of Intervenor.
Subsequently, Intervenor gave them transfer cards directing them
to transfer their membership to Local 227 of the Teamsters, the bakery
drivers local, because the Teamsters Joint Council had so directed
Intervenor. The seven bakery drivers have refused to shift their
membership to Local 227 and have been unrepresented since the be-
ginning of 1961, except in regard to their interest in health and wel-
fare pension funds. Intervenor is permitted by its International to
represent bakery drivers if they carry "mixed loads." Pursuant to
this interpretation, Intervenor represents the bakery drivers of Safe-
way Stores, Inc., under the multiemployer bargaining agreement;
however, the secretary-treasurer of Intervenor testified that he did not
consider the carrying of 10 to 40 percent nonbakery products on 90
percent of the runs to be "mixed loads."
As set forth above, the evidence presented at the hearing in this
matter indicates that the Intervenor had formerly represented the
seven drivers, and it represents drivers of another company, which is
also a member of the multiemployer bargaining unit, who perform
the same type of work as these seven drivers. Apparently the only
reason for its present failure to represent these seven employees of the
Employer is the directive of the Joint Council of the International
that Intervenor should accede to the desire of its sister local which
wishes to represent the seven drivers. The Board has held that a
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union's jurisdictional limitations in no way restrict the Board in
determining the appropriateness of a proposed bargaining unit 2 As
all the Employer's drivers operate the same type of tractor-trailers,
have essentially the same duties and skills, are under the same super-
vision, and may interchange, we find that a unit which would include
only a portion of these drivers is not appropriate. We further find
that the drivers in dispute are part of the unit for which the Inter-
venor is bargaining representative. We therefore shall dismiss the
petition.
The record indicates that all the facts submitted to the Board in
this proceeding were not presented to the Joint Council before it
directed the transfer of the membership of the seven bakery truck
drivers. We do not know whether if it had been aware of these facts, it
would have made the determination it did. In any event, we find that
as the seven drivers in dispute are part of the bargaining unit of
truckdrivers for which the Intervenor is statutory representative, the
Intervenor is under a duty fairly to represent them. The Wallace
Corporation v. N.L.R.B., 323 U.S. 248, 255; Peerless Tool and Engi-
neering Co., 111 NLRB 853, 857-858, enfd. sub nom. N.L.R.B. v. Die
and Tool Makers Lodge No. 113, International Association of Ma-
chinists, AFL, et al., 231 F. 2d 298, 302 (C.A. 7), cert. denied 352
U.S. 833.
[The Board dismissed the petition.]
2 Maybee Stone Company, 129 NLRB 487.
Progressive Supermarkets , Inc. and Retail Clerks International
Association , Local 1573 , AFL-CIO, Petitioner. Case No. 19-RC-
3179. May 13, 1963
DECISION AND CLARIFICATION OF UNIT
On January 11, 1963, following an election pursuant to stipulation
for certification upon consent election in the unit agreed to by the
parties, the Regional Director certified the Petitioner as the collective-
bargaining representative of Employer's retail store employees, with
certain exclusions.) The Employer's four assistant managers cast chal-
lenged ballots in the election held on January 3, 1963, but their em-
ployment status was not investigated at that time since the challenged
ballots were not sufficient in number to affect the results of the election.
1 The stipulation describes the unit as all retail store employees , box boys, stockroom
and produce employees , checkers, and delicatessen and regular part-time employees at
Employer ' s retail stores located in Billings , Montana, excluding meat department em-
ployees, supervisors , and guards as defined in the Act.
142 NLRB No. 65.