Hill Grocery Co., Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1943

52 N.L.R.B. 544 (N.L.R.B. 1943)

In the Matter of HILL GROCERY COMPANY , INC. and UNITED WHOLE-
SALE & WAREHOUSE EMPLOYEES UNION LOCAL #261, C. I. O.
Case No. R-5756.-Decided September 10, 1943
Mr. James A. Simpson, of Birmingham, Ala., for the Company.
Mr. Frank I. Parker, of Birmingham, Ala., for the Union.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
DIRECTION OF, ELECTION
STATEMENT OF THE CASE
a
Upon petition duly filed by United Wholesale & Warehouse Em-
ployees Local #261, C. I. 0., herein called the Union, alleging that a
question affecting commerce has arisen concerning the representation
of employees of Hill Grocery Company, Inc., Birmingham, Alabama,
herein called' the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Morti-
mer H. Freeman, Trial Examiner. Said hearing was held at Bir-
mingham, Alabama, on July 28, 1943. The Company and the Union
appeared, participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Company filed a written motion
to dismiss the petition alleging certain omissions in pleading, fail-
ure of jurisdiction, and inappropriateness of unit. For reasons here-
inafter given the motion is denied. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. All parties were afforded 'opportunity to file briefs with
the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Hill Grocery Company, Inc., an Alabama corporation , operates a
,hain of 150 retail grocery stores in the State of Alabama. It main-
52 N. L. R. B., No. 87.
544
HILL GROCERY COMPANY, INC. 545
tains two warehouses in Birmingham, Alabama, where it accepts
delivery of all merchandise purchased for the stores and from which
it distributes supplies to them. Only the warehouse employees are
concerned in this proceeding. The Company denies that it is engaged
in commerce within the meaning of the Act.
During the past 12 months, the Company purchased goods and
sundry groceries having a value in excess of $12,000,000, approxi-
mately 40 percent of which was shipped to the Birmingham ware-
houses from points outside the State of Alabama. In the month of ,
June 1943, the Company received on the siding near its Birmingham
warehouses, 41 freight cars of merchandise shipped from points out-
side the State of Alabama, and 22 freight cars of merchandise
shipped from points within the State. These were unloaded by a
group of employees who are within the alleged appropriate unit. It,
therefore, appears that not only does the Company receive a substan-
tial portion of its merchandise through the channels of interstate com-
merce, but some of its employees are actually engaged in interstate
commerce? It is clear from these circumstances that industrial
strife within the warehouses would directly affect commerce. We
find, therefore, that the Company is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATION INVOLVED
United Wholesale & Warehouse Employees Union Local #261, is
a labor organization affiliated with the Congress of Industrial Or-
ganizations; admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Union, by letter dated June 12, 1943, requested recognition as
bargaining representative of the Company's employees. The Com-
pany refused recognition on'the ground that it doubted the Union's
majority.
A statement of the Field Examiner introduced into evidence at
the hearing, indicates that the Union represents a, substantial num-
ber of employees in the unit herein found appropriate.'
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) •aud (7) of the Act.
'See Rush Common Carrier Application , 17 M C C. 661 , James R. Hess Common
Carrier Application, 18 M. C . C. 263 , Dixie Truck Line Contract Carrier , 29 Al C. C.
303; see also Walling v. Goldblatt Bros, 128 F . ( 2d) 778 , cert. denied 63 S. Ct 528,
83 L E D 763.
2 The Union submitted to the Field Examiner 47 application -for-membership cards, all
of which bore apparently genuine original signatures , all corresponding with names on
the Company ' s June 19, 1913 , pay roll which contained names of 93 employees in the
appropriate unit.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The Union contends that all warehouse employees, truck drivers,
and helpers, and garage 'employees in the Birmingham warehouses,
excluding office clerks, shipping clerks, checkers, receiving clerks, re-
frigerator and scale mechanics, and workers employed in a super-
visory capacity with the Company constitute a unit appropriate for
collective bargaining. The Company objects to the exclusion of ship-
ping clerks, receiving clerks, checkers, and refrigerator and scale
mechanics.
Shipping clerks and checkers perform the same duties. Their
title depends upon their station on the floor. Some check incoming
merchandise and produce against invoices of purchases made. Others
check accumulations of outgoing merchandise against orders sent in
by the stores. The actual unloading and storing, or assembling and
loading of merchandise is done by helpers who work under their in-
structions. They sometimes work at desks. They do little or no
manual labor. We find that shipping clerks and checkers are clerical
employees and shall exclude them from the unit.
Receiving clerks: There is one receiving clerk whose duty it is to
receive and check produce. He buys much of the Company's produce
and is paid on it salary basis, whereas the other employees in the unit
are paid on an hourly basis. He has supervisory authority. We shall
exclude the receiving clerk from the unit.
The refrigerator mechanic has an office to himself. He services the
refrigerating unit in the warehouse and those in the stores. The scale
mechanic also has a part of the warehouse to himself. He travels from
store to store repairing scales but in instances where a scale needs
overhauling, he brings it to the warehouse and repairs it there. ' As
there is no community of interest between these two men and the
warehousemen, we shall exclude them from the unit.
A. 0. Dean: The Company classifies Dean as a checker. He classi-
fies himself as a "general flunky." Two days a week he takes inven-
tory, climbing over piles of boxes to do so. Four days a week he is an
order clerk and checker. However, he pushes a float about and does
considerably more manual work than the regular checkers. We, ac-
cordingly, shall include Dean in the unit.
We find that all of the Company's employees at its Birmingham,
Alabama, warehouses, including' warehousemen, truck drivers and
helpers, garage employees, and A. O. Dean, but excluding office cleri-
cal employees, the shipping clerk, the receiving clerks; the checkers,
the refrigerator and scale mechanics, and all supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
HILL GROCERY COMPANY, INC. 547
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 em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Hill Grocery
Company, Inc., Birmingham, Alabama, an election 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 Tenth Region acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, 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 employees who did not
work during 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, to determine whether or not they desire to be represented by
United Wholesale & Warehouse Employees Union, Local #261, affil-
iated with the Congress of Industrial Organizations, for the purposes
of collective bargaining.
CHAIRMAN MILISS took no part in the consideration of the above
Decision and Direction of Election.
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