Griffin-Goodner Grocery Co.

National Labor Relations Board - Board Decisions

Jul 4, 1945

62 N.L.R.B. 1140 (N.L.R.B. 1945)

In the Matter of GRIFFIN-GOODNER GROCERY COMPANY and TULSA GEN-
ERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL UNION No. 523,
AFL
Case No. 16-R-1219.-Decided July 4, 1945
Mueller & Mueller, by Mr. Karl Mueller, of Fort Worth, Tex., and
Milsten & Milsten, by Mr. David R. Milsten, of Tulsa, Okla., for the
Company.
Messrs Holly L. Anderson, Gordon L. Shyrock, M. R. Sherman, and
Robert Stuart,l of Tulsa, Okla, for the Union.
Mr. Herbert C. Kane, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Tulsa General Drivers, Warehousemen &
Helpers, Local Union No. 523, AFL, herein called the Union, alleging
that a question affecting commerce had arisen concerning the representa-
tion of employees of Griffin-Goodner Grocery Company, Tulsa, Oklahoma,
herein called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before John H. Garver, Trial
Examiner. Said hearing was held at Tulsa, Oklahoma, on April 25, 1945.
The Company and the Union appeared and participated All parties were
afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues.' The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error and are'
hereby affirmed. All parties were afforded an opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the following :
1 The Union waived the unfair labor practice charges which it had theretofore filed against the
Company insofar as they might constitute a basis for objecting to the instant proceeding
62 N. L. R B, No 144.
1140
GRIFFIN-GOODNER GROCERY COMPANY 1141
FINDINGS OF FACT
1. THE BUSINESS OF,THE COMPANY
Griffin-Goodner Grocery Company, an Oklahoma corporation, having its
office and place of business in Tulsa, Oklahoma, owns and operates a ware-
house from which it sells and distributes at wholesale food products and
related items. It is a subsidiary of Griffin Grocery Company, an Oklahoma
corporation, which is engaged in the manufacture, processing, and distri-
bution of foodstuffs, and operates distributing points and warehouses in
Oklahoma, Arkansas, Texas, and Missouri. The annual value of mer-
chandise sold by the Company exceeds $1,900,000. Of the total sales made
annually by the Company, about $2,000 worth represents goods sold and
delivered to a customer in the State of Kansas and the remainder represents
sales to customers within the State of Oklahoma. Approximately 60 percent
of its annual purchases of goods for sale is delivered to the warehouse from
points outside the State of Oklahoma. Approximately all the remaining
merchandise purchased cones from a processing plant at Muskogee, Okla-
homa, which is owned and operated by Griffin Grocery Company.
We find that the Company is engaged in commerce within the meaning
of the National Labor Relations Act.'
II. THE ORGANIZATION INVOLVED
Tulsa General Drivers, Warehousemen & Helpers, Local Union No.
523, affiliated with the American Federation of Labor, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the exclu-
sive bargaining representative of certain of its employees.
A statement of a Board agent, introduced into evidence at the hearing,
indicates that the Union represents a substantial number of employees in
the unit hereinafter found appropriate s
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union requests a unit of over-the-road country drivers, city drivers,
and warehousemen, excluding, checkers,' the gang pusher, clerical employ-
2 See J L Brandeis & Sons v N L R B, 142 F (2d) 977 (C C A 8), enf'g 53 N L R B
352; cert denied 323 U S 751, rehearing denied, 323 U S 815
s The Field Examiner reported that the Union submitted 12 authorization cards , that all the
names on the cards were listed on the Company's pay roll of February 24, 1945 , which contained
the names of 21 employees i n the appropriate unit , and that , of these cards , I was dated in November
1944 , 2 in February 1945, and 9 were undated
4 So far as can be determined from the record, the Company employs no checkers , as such.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees, salesmen, executives, the city foreman, the warehouse foreman, and
all other supervisory employees. The Company agrees in general with the
unit sought by the Union, but would also include the city foreman and
the gang pusher.'
At its warehouse, the Company employs 22 warehousemen, the city
foreman, the gang pusher, and the warehouse foreman. All the warehouse-
men are engaged in similar work ; filling orders and helping load the trucks ;
some of them also devote part of their time to driving the trucks of the
Company or acting as helpers on the trucks.
As stated above, the only controversy centers around the two employees
in the warehouse referred to as the city foreman and the gang pusher.
City Foreman: This employee is engaged chiefly in assisting the ware-
house foreman in checking goods as they are loaded on trucks. He spends
the greater portion of his time in supervising the loading of trucks for city
delivery, and for that reason is apparently referred to as the city foreman.
Although he is one of five or six warehousemen assigned to checking the
loading of trucks, the uncontroverted testimony shows that he is the only
one in this group who has the powei to recommend the discharge of those
under his supervision. We shall exclude him from the unit as a supervisory
employee.
Gang Pusher: This employee checks merchandise as it is unloaded from
cars and has partial charge of stocking the merchandise in the warehouse.
The Company adduced testimony showing that the job of gang pusher or
"leader" in unloading and stocking merchandise was not confined to any
one individual but that various warehousemen were, from time to time,
assigned to lead in the unloading and that, when so assigned, they worked
along with the warehousemen under them. It is admitted that the leadman
has the authority and duty to report misconduct of those in the gang to
the foreman. There is, however, no indication that any, of the warehouse-
men assigned to lead in the unloading have authority effectively to rec-
ommend the change in status or discharge of any one in the gang. The
authority of the gang pusher is equivalent to that of the truck driver who
may report misconduct of his "swamper" or helper. It is our opinion that
the gang pusher does not have sufficient indicia of supervisory authority to
bring him within our usual definition thereof ; we shall include him.
We find that all over-the-road country drivers, city drivers, and ware-
housemen including the gang pusher, but excluding checkers, clerical em-
ployees, salesmen, executives, the city foreman, the warehouse foreman,
and any other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees,
5 Although there is no one so listed on the Company's pay roll, the parties agree that Arrington
is the employee designated by the Union as city foreman, and Rutledge is the employee designated
as gang pusher.
GRIFFIN-GOODNER GROCERY COMPANY 1143
or effectively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of
the Act
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which has
arisen be resolved by an election by secret ballot among the employees in
the appropriate unit who were employed during the pay-roll period im-
mediately preceding the date of the Direction of Election herein, subject to
the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
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 9, of National Labor Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with. Griffin-Goodner Grocery
Company, Tulsa, Oklahoma, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) clays from the date of
this Direction, under the direction and supervision of the Regional Director
for the Sixteenth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article 171, Sections 10 and 11,
of said Rules and Regulations, among the employees in the unit found
appropriate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including em-
ployees who did not work during the said pay-roll period because they
were ill or on vacation or temporarily laid off, and including employees in
the armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or been
discharged for cause-and have not been rehired or reinstated prior to the
date of the election, to determine whether or not they desire to be represented
by Tulsa General Drivers, Warehousemen & Helpers, Local Union No.
523, affiliated with the American Federation of Labor, for the purposes
of collective bargaining.
See Matter of .4rmstiony Cork Conrhouy, 61 N. L. R. B 1320