Delchamps, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1974

210 N.L.R.B. 179 (N.L.R.B. 1974)

DELCHAMPS, INC. 179
Delchamps , Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America Local 442,
AFL-CIO. Case 15-RC-5096
April 23, 1974
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On April 13, 1973, the Regional Director for
Region 15 issued a Decision and Direction of
Election in the above-entitled proceeding, in which
he found appropriate and directed an election in a
unit of all meat department employees, including
meat department managers, employed by the Em-
ployer at its stores in Mobile and Baldwin Counties,
Alabama.' In so finding, he rejected the Employer's
contention that the meat department managers were
supervisors as defined in the Act.2 Thereafter, in
accordance with Section 102.07 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer filed a request for
review of the Regional Director's decision on the
ground, inter alia, that the Regional Director erred in
finding the meat department managers at the
involved stores not to be supervisors. The Employer
also moved to reopen the record for further evidence
as to that issue , and it again moved to dismiss the
petition, renewing its allegation that the meat
department managers participated in the solicitation
of authorization cards for the Petitioner and that the
showing was therefore tainted. By telegraphic order
dated May 9, 1973, the National Labor Relations
Board denied the Employer's request for review.
The election was held on May 11, 1973. The tally
of ballots therefor showed that, of approximately 85
eligible voters, 51 cast valid ballots for, and 30
against, the Petitioner, and 4 cast challenged ballots.
The Employer filed timely objections to the election.
After an investigation, the Regional Director, on July
24, issued a Supplemental Decision and Certification
of Representative, in which he overruled the Employ-
er's objections. Thereafter, the Employer filed a
request for review of his Supplemental Decision on
the grounds, inter alia, that he erred in overruling its
objection to conduct engaged in by meat department
managers during the crucial period before the
election and in refusing to consider new evidence
which it had submitted to show that at the time they
I The Petitioner's primary request was for a unit of meat department
employees in the Employer 's 14 stores in Mobile County. In the alternative,
the Petitioner expressed a willingness to include similar employees at two of
the Employer's stores in Baldwin County.
2 The Employer, at the hearing and in its brief to the Regional Director,
also moved to dismiss the petition , which was filed on February 20, 1973, on
the ground that the Petitioner 's showing of interest to support it was tainted
engaged in such conduct they were supervisors as
defined in the Act.
By telegraphic order dated September 10, the
Board granted the Employer's request for review;
remanded the case to the Regional Director for the
purpose of conducting a hearing with respect to (1)
the status of the meat department managers at the
time of the election and at the time of the alleged
objectionable conduct attributable to them, and (2)
whether they engaged in objectionable conduct;
directed the Hearing Officer designated to conduct
the hearing to prepare a report containing resolutions
of the credibility of witnesses, findings of fact, and
recommendations to the Board; and stayed the
certification issued by the Regional Director pending
decision on review.
Pursuant thereto, a hearing was held before
Hearing Officer George L. Card, Jr., on October 11
and 12, November 5 through 9, 13, and 14. All
parties appeared and participated at the hearing. Full
opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. On
December 20, the Hearing Officer issued his report
in which he found that the meat department
managers were, at all times critical herein, supervi-
sors as defined in the Act and that they engaged in
objectionable conduct; and he recommended that
the election be set aside and a new one conducted.
Thereafter, the Employer and the Petitioner filed
timely exceptions to the Hearing Officer's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the entire
record in this case, including the Hearing Officer's
report and the exceptions thereto, and makes the
following findings:
At the earlier hearing herein, the Employer's vice
president and corporate secretary, Joel Swanson,
testified that the meat department managers not only
schedule, assign , direct, train, and evaluate meat
department employees in the performance of their
respective tasks, but also possess the authority to
grant time off, select individuals for overtime,
reprimand, discipline, and recommend pay raises,
by supervisory participation When the Hearing Officer sustained objections
to the Employers efforts to elicit testimony as to the matter , it made an
offer of proof that the testimony sought to be elicited would show that the
meat department managers were responsible for 70 percent of the
Petitioner 's showing of interest . The Regional Director denied the motion to
dismiss as the matter was one for administrative determination
210 NLRB No. 40
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfers, promotions, and/or discharges. None of
the meat department managers was called as a
witness. The Regional Director, in concluding that
the meat department managers were not supervisors
as defined in the Act, relied in part on the fact that
the record did not reveal to what extent, if any, they
had ever exercised the authority attributed to them
by Swanson nor the extent to which the direction of
employees was other than routine. There were
approximately 85 employees in the unit, including
the 18 meat department managers. As a result of the
Regional Director's determination and the Board's
denial of the Employer's request for review thereof,
the meat department managers were included in the
unit. The record indicates that 15 of them voted in
the election.3
The Employer's Objections II through V alleged
that (1) the meat department managers induced and
influenced employees under them to support and
vote for the Petitioner; (2) the meat department
managers told the employees that they would not
receive wage increases and would be subject to
adverse working conditions or other treatment
adverse to them unless they signed cards, supported,
and/or voted for the Union in the election; (3) the
meat department managers were permitted to vote in
the election; and (4) the participation by meat
department managers deprived the Employer of its
statutory rights to determine and designate who shall
constitute its management. Because of his earlier
determination that the meat department managers
were not supervisors as defined in the Act, the
Regional Director refused to consider new evidence
submitted by the Employer to show that they were
supervisors at the time they engaged in alleged
objectionable conduct and he overruled these objec-
tions. As indicated, we granted the Employer's
request for review and remanded the case for a
hearing as to these matters.
In his report, the Hearing Officer found, on the
basis of all the testimony credited by him, including
the testimony of 13 of the 18 meat department
managers, that meat department managers at all
critical times herein were supervisors as defined in
the Act.4 There was substantial evidence that meat
department managers in fact exercised the superviso-
ry authority attributed to them at the earlier hearing
by Swanson. In addition, there was evidence that
some of them hired and fired employees. We
therefore affirm the Hearing Officer's findings.
As to the alleged objectionable conduct, the
3 The Petitioner challenged the ballot cast by one meat department
manager The other 14 voted without challenge
4 The Petitioner has excepted to certain credibility findings made by the
Hearing Officer relating to this issue It is the Board's established policy not
to overrule resolutions with respect to credibility unless a clear preponder-
ance of all the relevant evidence convinces us that the resolutions are clearly
Hearing Officer found, on the basis of testimony
which he credited, that the meat department manag-
ers joined and supported the Petitioner from the
beginning of its campaign to organize the employees
involved and continued their active and open
support through the "critical period." 5 Many of them
joined the Petitioner and solicited employees under
them to join. Four or five of them were on the
Petitioner's organizing committee established prior
to the filing of the petition. They distributed,
solicited signatures to, and collected cards for the
Petitioner. They attended and urged employees to
attend union meetings . They wore union pins and
urged employees to vote for the Petitioner. The
Hearing Officer found no credible evidence that
meat department managers made threats that em-
ployees under them would not receive wage increases
and would suffer other adverse treatment unless they
supported the Petitioner. However, because the
authorities possessed and exercised by the meat
department managers are of the type which greatly
affect working conditions, he found that the open
support of the Petitioner by some of them would
tend to restrain employees in their right not to
support the Petitioner.
The Employer contends, on the basis of these
findings of the Hearing Officer, that not only should
the election be set aside but the petition should be
dismissed. We agree.
It is clear that the Regional Director' s earlier
determination as to the status of the meat depart-
ment managers was based on an inadequate record
and was erroneous. As found by the Hearing Officer,
meat department managers , each of whom on
average supervises about four unit employees, joined
the Petitioner, assisted in obtaining the showing of
interest to support the instant petition, and continued
their open support for the Petitioner throughout the
election campaign. Many of them cast unchallenged
ballots in the election. We thus cannot escape the
conclusion that their inclusion in the unit, by reason
of the erroneous finding that they are not supervi-
sors, and their activities in support of the Petitioner,
had such a pervasive effect upon employee free
choice as to require the setting aside of the election.
Further, the totality of the circumstances described
above leads us to conclude that it will best effectuate
the policies of the Act to vacate the election
conducted herein and to order the dismissal of the
instant petition.6
in error Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362
(C A 3) We have carefully examined the record and find no basis for
reversing his findings
5 He noted, however, that some of the meat department managers did
not support the Petitioner, and that one urged employees to vote no.-
6 See Lamar Electric Membership Corporation , 164 NLRB 979.
DELCHAMPS, INC. 181
ORDER IT IS FURTHER ORDERED that the instant petition be,
It is hereby ordered that the election hereinbefore
and it hereby is, dismissed.
conducted be, and it hereby is, vacated; and