First National Stores, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1940

26 N.L.R.B. 1275 (N.L.R.B. 1940)

t
In the Matter of FIRST NATIONAL STORES, INC., PROVIDENCE DI-
VISION and INDUSTRIAL UNION AND MERCANTILE BENEFICIAL
ASSOCIATION OF PROVIDENCE, RHODE ISLAND
Case No. R-1957.-Decided August 24, 1940
Jurisdiction : retail grocery industry.
Investigation and Certification of Representatives : existence of question; refusal
to accord recognition to union; conflicting claims of rival representatives;
closed-shop contract renewed with full notice of representation and unit claims
of rival union, no bar to; union which has organized no employees in one of the
elections directed, excluded from ballot; elections necessary.
Unit Appropriate for Collective Bargaining
Where factors are such that of a division of a Company operating grocery
stores in three States, the employees in two of the States might constitute
one appropriate unit and those in the remaining State might properly consti-
tute another unit or the three State areas as a division might constitute a
.single unit, held desires of the employees to be determinative.
Practice and Procedure
Petition of labor organization asserting appropriateness of a unit composed
of two groups of employees among whom the Board ordered separate elections,
to be dismissed, provided such organization wins election in but one of the
two groups and notifies the Board within 10 days from date of Decision and
Direction that it does not desire certification as the representaive of a unit
smaller than that which it claimed to be appropriate.
Mr. Edmund J. Blake, of Boston, Mass., for the Company.
Hogan ct Hogan, by Mr. Edward T. Hogan, of Providence, R. I.,
for the Association.
Roewer & Reel, by Mr. A. Frank Reel, of Boston, Mass., for the
Amalgamated.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On June 20, 1940, Industrial Union and Mercantile Beneficial Asso-
ciation of Providence, Rhode Island, herein called the Association,
filed with the Regional Director for the First Region (Boston, Massa-
26 N. L. R. B., No. 117.
1275
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chusetts) a petition alleging that a question affecting commerce had
.arisen concerning the representation of employees of First National
Stores, Inc., Providence Division, Somerville, Massachusetts, herein
called the Company, and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On July 6, 1940,
the National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2, as
amended, ordered an investigation and authorized the Regional Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice. On July 11, 1940, the Regional Director issued a notice
of hearing, copies of which were duly served upon the Company, upon
the Association, and upon Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 328, herein called the Amalgam-
ated, a labor organization claiming to represent employees directly
affected by the investigation.
Pursuant to notice and notice of postponement, a hearing was held
on July 22, 23, and 24, 1940, at Providence, Rhode Island, before
Albert J. Hoban, the Trial Examiner duly designated by the Board.
The Company, the Association, and the Amalgamated were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. At the
commencement and at the conclusion of the hearing, the Amalgam-
ated moved to dismiss the complaint for want of jurisdiction. The
Trial Examiner reserved rulings thereon for the Board. These mo-
tions are hereby denied. During the course of the hearing the Trial
Examiner made rulings on other motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Association and the Amalgam-
ated filed briefs which have been considered by the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
First National Stores, Inc., a Massachusetts corporation, operates
2135 retail grocery and meat stores throughout the States of Maine,
New Hampshire, Vermont, Massachusetts, Connecticut, Rhode
Island, and New York. Its principal office is located at Somerville,
Massachusetts. The operations of the Company are divided into
three divisions, Hartford, Somerville, and Providence, in each of which
it maintains warehouses and bakeries that supply the retail stores
FIRST NATIONAL STORES, INC. 1277
located within the divisional area. At Somerville, the Company
operates a meat-processing plant, a bottling plant, and a plant for the
manufacture of various food products, such as jams, jellies, gelatin,
and coffee, from which it supplies all of its retail stores throughout the
three divisions. It also owns a controlling interest in four other
companies whose products are sold in the retail stores of the Company.
The Providence Division, the only one with which this proceeding is
concerned, has jurisdiction over all operations of the Company in the
State of Rhode Island and small adjoining areas in eastern Connecti-
cut and southeastern Massachusetts. There are 265 retail stores in
the Providence Division, consisting of 192 in Rhode Island, 63 in
Massachusetts, and 10 in Connecticut, all located in a closely knit
industrial area within a 52-mile radius of Providence, the divisional
headquarters . During the period from July 1 , 1939 , to June 30, 1940,
products and goods valued at more than $7,100,000 were purchased
by the Company for allocation to stores in the Providence Division.
During the same period, the price of the products sold by the stores
in this division exceeded $9,000,000. Approximately 60 per cent of
the goods and products sold in the Massachusetts stores, and approxi-
mately 90 per cent of those sold in the Rhode Island and Connecticut
stores were shipped to said stores from other States.
On June 22, 1940, the Company employed 1.219 persons in its
Providence Division.
II. THE ORGANIZATIONS INVOLVED
Industrial Union and Mercantile Beneficial Association of Provi-
dence, Rhode Island, is aft unaffiliated labor organization, admitting
to its membership all retail store employees of the Company employed
in the Providence Division, excluding supervisors, superintendents,
executives, office employees, and order boys.
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 328, is a labor organization affiliated with the American
Federation of Labor. It admits to membership retail store employees
of the Company, excluding supervisors, superintendents, executives,
office employees, and order boys. The jurisdiction of Local 328 is
limited to employees within the State of Rhode Island.
III. THE QUESTION CONCERNING REPRESENTATION
The Amalgamated obtained its charter in November 1938, and
during the ensuing 6 months held several conferences with the Com-
pany relative to individual employee grievances. On May 19, 1939,
the Company entered into a preferential-shop contract with the
Amalgamated, recognizing it as the exclusive bargaining representative
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all the Company's retail store employees in the State of Rhode
Island.
On May 9, 1940, the Association was organized, and on May 15,
1940, it petitioned the Company for recognition as the exclusive
bargaining agent of all retail store employees in the Providence
Division. The company replied in a letter dated May 21, 1940,
stating that it had entered into a contract with the Amalgamated
covering employees within the State of Rhode Island, and that it
was unable to recognize any further requests for representation in
that area until such time as another organization was certified by
some governmental authority - as the designated representative of
the employees therein. On June 12, 1940, the Association wrote a
letter to the Company protesting that the Company's 1939 contract
with the Amalgamated, which had expired on May 22, 1940, furnished
no sound reason why such contract should be continued or renewed,
that it was the duty of the Company to refrain from entering into
contractual relations with any group until the status of that group
had been satisfactorily determined, and that the Association was
prepared to submit convincing proof of its membership claims. On
June 19, 1940, before replying to the foregoing letter from the Associa-
tion and without determining the representation status of the Amal-
gamated, the Company entered into a new closed-shop contract with
the Amalgamated.' The following day, the Association filed its
petition with the Board. There was introduced in evidence a report
of the Regional Director showing that both the Amalgamated and the
Association represent a substantial number of employees in the Rhode
Island stores of the Company, and that, in, addition, the Association
represents a substantial number of the employees in the Massachusetts
and Connecticut stores.
The Amalgamated contends that the contract entered into with the
Company on June 19, 1940, precludes a finding that a question con-
cerning representation has arisen, and that the Board should dismiss
the petition filed by the Association. We find no merit in this con-
tention. The Company signed the contract with full notice of the
representation and unit claims of the Association and without
determining the representation status of the Amalgamated. We have
I In explanation of the Company's failure to secure proof of the representation claims of the Amalgamated
prior to entering into the new contract , Byron M . Fleming, manager of the Providence Division , testified
at the hearing that he had relied upon the Claims of the Amalgamated , upon reports of supervisors as to the
number of Amalgamated buttons being worn by employees , and upon his own "feelings " that the Amalgam-
ated represented a majority of the Rhode Island employees.
FIRST NATIONAL STORES , INC. 1279
repeatedly held that a contract entered into under such circumstances
is no bar to a representation proceeding before the Board.'
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Association contends that all retail store employees in the
Providence Division, including store managers and part-time clerks,
and excluding superintendents, executives, office employees, and order
boys, constitute a unit appropriate for the purposes of collective
bargaining. The Amalgamated is in agreement with the Association
as to the inclusion and exclusion of the enumerated classifications of
employees, but contends that the employees in the Rhode Island
stores of the Providence Division constitute a separate unit appropri-
ate for the purposes of collective bargaining. The Company indicated
that it was in agreement with this contention.
The management of the Providence Division is comprised of a
division manager, a district manager, 3 supervisors, and 18 superin-
tendents, who to a large extent determine and administer the operating
policies of the Company. The divisional management maintains its
own purchasing department, fixes prices throughout the division,
controls its own inventory, establishes credit and banks funds in the
name of the division, and employs and sets the wages and hours of
work of all divisional employees. Wage scales, hours of work, working
conditions, and employee qualifications are substantially the same
throughout the Providence Division. There is, however, no collective
bargaining history between the Company and any labor organization
on.a division-wide basis, and the -Amalgamated's contract with the
Company covering all the retail store employees in the State of Rhode
Island is indicative of the appropriateness of a State-wide unit. Prior
2 Matter of Colonie Fibre Company, Inc. and Cohoes Knit Goods Workers Union No. 21514, A . F. of L.,
9 N. L. R . B. 558; Matter of Precision Castings Company, Inc. and National Association of Die Casting Workers,
Local #4, C. I. 0., 24 N. L. R. B. 1045; Matter of J. Edwards & Co. and United Shoe Workers of America,
Local 127, C . I. 0., 20 N . L. R. B. 244; Matter of Malone Bronze Powder Works, Inc . and Malone Aluminum
Corporation and Aluminum and Bronze Powder Workers Union No. 21211 , affiliated with the A . F. of L.,
19 N. L . R. B. 449 ; Matter of Stokely Brothers & Company , Inc. and Van Camp's, Inc. and Federal Labor Union
No. 21752, affiliated with A. F. of L., 15 N. L. R. B. 872.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining practices among the Company's employees also
show that various less than State-wide units have been established
throughout the three divisions of the Company.' Under these circum-
stances, we find that the employees of the Providence Division in the
States of Massachusetts and Connecticut, and those employed in the
State of Rhode Island, might properly constitute separate bargaining
units, or they might function as part of a single unit coextensive with
the division. In accordance with our usual practice in similar situa-
tions, we conclude that the desires of the employees themselves should
be determinative.' As stated in Section VI, infra, the determination
of their desires can best be made in elections which we shall direct.
Upon the outcome of the elections will depend our determination of
the appropriate unit or units herein.
Since the record shows that the Amalgamated has.not organized
any employees in the Massachusetts and Connecticut areas of the
Providence Division, and since its jurisdiction is limited to the State
of Rhode Island, we will not provide for the participation of the
Amalgamated in the election to be held among the employees in
the Massachusetts and Connecticut stores.
We will therefore order one election among all retail store employees
of the Company in the Massachusetts and Connecticut areas of the
Providence Division, including store managers and part-time clerks,
and excluding supervisors, superintendents, executives, office em-
ployees and order boys, to determine whether or not they desire to be
represented by the Association, and another election among all retail
store employees of the Company within the foregoing classifications
who are employed in the Rhode Island area of the Providence Division
to determine whether they desire to be represented by the Association,
or by the Amalgamated, or by neither. We shall certify the union, if
any, designated by a majority of the employees within each election
unit as the exclusive representative thereof. If the Association should
win both elections, we shall certify it as the exclusive representative of
the divisional unit. If the Association receives a majority vote in
one, but not in both, of the two groups, then the group so voting for
the Association shall constitute a separate appropriate unit and we
shall certify the Association as the exclusive bargaining representative
thereof unless within ten (10) days from. the date of this Decision and
Direction of Elections the Association shall have notified us in writing
that it does not desire to he certified as the representative of such unit,
in which case we shall dismiss the petition.
3 At the time of the hearing, the Company had entered into 11 collective bargaining contracts with various
unions, including the Amalgamated, covering employees in units less than division or State-wide.
4 Matter of Globe Machine and Stamping Co. and Metal Polishers Union Local No. 8, International Associa-
lion of Machinists, District No. 54, Federal Labor Union 18788, and United Automobile Workers of America,
3 N. L. It. B. 294, and subsequent cases.
FIRST NATIONAL STORES, INC.
VI. THE DETERMINATION OF REPRESENTATIVES
1281
As noted above, the Association and the Amalgamated submitted
to the Regional Director evidence of recent designation as representa-
tives for the purposes of collective bargaining by a substantial number
of employees of the Company within the respective units each claims
to be appropriate. We find that elections by secret ballot can best
resolve the question concerning representation.
We shall, in accordance with our usual practice, direct that all
employees within the alleged appropriate units who were employed by
the Company during the pay-roll period immediately preceding the
date of this Direction of Elections, including employees who did not
work during such pay-roll period because they were ill or on vacation
and employees who were then or have since been temporarily laid off,
but excluding those who have since quit or been discharged for cause,
shall be eligible to participate in the elections.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following:
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the repre-
sentation of employees of First National Stores, Inc., in its Providence
Division, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for collective bargaining With First
National Stores, Inc., in its Providence Division, elections by secret
ballot shall be conducted as early as possible but not later than thirty
(30) days from the date of this Direction, under the direction and super-
vision of the Regional Director for the First Region, acting in this
matter as agent for the National Labor Relations Board and subject
to Article III, Section 9, of said Rules and Regulations; among (1)
all retail store employees in the Massachusetts and Connecticut areas
of the Providence Division of the Company, who were employed by
the Company during the pay-roll period immediately preceding the
date of this Direction of Elections, including store managers and part-
time clerks, employees who did not work during such pay-roll period
because they were ill or on vacation, and employees who were then or
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have since been temporarily laid off, and excluding supervisors, super-
intendents, executives, office employees, order boys, and employees
who have since quit or been discharged for cause, to determine whether
or not they desire to be represented for the purposes of collective
bargaining by Industrial Union and Mercantile Beneficial Association
of Providence, Rhode Island; and (2) all retail store employees in the
Rhode Island area of the Providence Division of the Company, who
were employed by the Company during the pay-roll period immedi-
ately preceding the date of this Direction of Elections, including store
managers and part-time clerks, employees who did not work during
such pay-roll period because they were ill or on vacation, and em-
ployees who were then or have since been temporarily laid off, and
excluding supervisors, superintendents, executives, office employees,
order boys, and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented for the
purposes of collective bargaining by Industrial Union and Mercantile
Beneficial Association of Providence, Rhode Island, or by Amal-
gamated Meat Cutters and Butcher Workmen of North America, Local
328, or by neither.
MR. EDWIN S. SMITH, dissenting:
The centralized management and the highly integrated character
of the Company's operations in the Providence Division, the similarity
in wages, hours, working conditions, and required skill of employees
throughout the division, and the fact that conditions in the Massa-
chusetts and Connecticut areas will almost inevitably be determined
by conditions fixed for the Rhode Island area, all indicate the propriety
of the division-wide unit as claimed by the Association. Although the
existence of a previous contract should be an important factor in
guiding the Board's decisions as to the appropriate unit, it is not neces-
sarily conclusive.,' No basis exists for disrupting the unity of interest
that exists among all employees within the Providence Division
simply because a previous contract with the Amalgamated, which
admittedly is no bar to an investigation and certification of repre-
sentatives, embodies a different bargaining unit. I believe that a
division-wide unit, which the Board found under similar circumstances
in Matter of Gulf Oil Corporation and Gulf Employees Association of
New England, and Oil Workers International Union, Local 881, affiliated
with the Congress of Industrial' Organizations,6 would best insure to the
employees of the Compaay the full benefit of their right under the
Act to self-organization and collective bargaining and I would find
accordingly.
' See my concurring opinions in Matter of American Can Co. and Engineers Local No . 30 Firemen & Oilers
Local No . 56,13 N . L. R. B. 1252 , and Matter of Milton Bradley Company and International Printing Pressmen
and Assistants Union of North America (A. F. L.), 15 N. L. R. B. 938.
5 19 N . L. R. B. 334.