The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Aug 5, 1941

33 N.L.R.B. 1103 (N.L.R.B. 1941)

In the Matter of THE GREAT ATLANTIC & PACIFIC TEA COMPANY and
UNITED RETAIL AND WHOLESALE EMPLOYEES OF ADIERICA, CIO
Case No. R-0645.-Decided August 5, 19!1
Jurisdiction : retail grocery store industry
Investigation and Certification of Representatives : controversy concerning rep-
resentation of employees; conflicting claims of rival organizations; contract
not renewed until Company had notice of petitioning union's claim to represen-
tation, no bar to ; election necessary.
Unit Appropriate for Collective Bargaining : all warehouse employees including
truck drivers and helpers, and the four colored porters employed in the bakery
shop, but excluding all other employees in the bakery shop, supervisory and
clerical employees, and butchers.
Mr. Earle K. Shawe and Mr. John C. McBee, for the Board.
Mr. George J. Feldman, of Washington, D. C., the Company.
Roberts, Prestwood & Hall, by Mr. Roger A. Prestwood, of Atlanta,
Ga., for the United.
• Mr. Joseph A. Padway, and Mr. Herbert S. Thatcher, of Washing-
ton, D. C., and Mr. George L. Googe, of Atlanta, Ga., for the Teamsters.
Mr. Frederic B. Parkes, end, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIDE CASE
On May 6,1941, United Retail and Wholesale Employees of America;
CIO, herein called the United, filed with the Regional Director for the
Tenth Region (Atlanta, Georgia) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Great Atlantic & Pacific Tea Company, Atlanta, Geor-
gia, herein called the Company, and requesting an investigation and
certifications of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On May 15,
1941, 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
33 N L R. B, No. 189.
1103
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On May 27, 29, and June 6, 1941, respectively, the Regional Director
issued a notice of hearing, an amended notice of hearing, and a second
amended notice of hearing, copies of which were duly served upon the
Company and the United and upon Retail Clerks International Pro-
tective Association, A. F. L.," and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of North America, affili-
ated with the American Federation of Labor, herein called the Team-
sters, labor organizations claiming to represent employees directly
affected by the investigation. Pursuant to notice, a hearing was held
on June 20, 1941, at Atlanta, Georgia, before Walter B. Wilbur, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board, the Company, the United, and the Teamsters were represented
by counsel or official representatives and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing, the Trial Examiner made various
rulings on 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. On July 5, 1941, the United and the Teamsters filed briefs
which the Board has considered.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Great Atlantic & Pacific'Tea Company is a corporation licensed
to do business in the State of Georgia. The Company is engaged in the
business of selling groceries and produce and operates stores in approxi-
mately 39 States. At Atlanta, Georgia, the Company maintains a
warehouse which receives and distributes merchandise, equipment,
produce, and groceries for the Company's stores in the surrounding-
area. The Atlanta warehouse receives approximately 1,500 tons of
merchandise, equipment, produce, and groceries per week, 75 per cent
of which are shipped to it from points outside the State of Georgia.
Approximately 10 to 15 per cent of such merchandise, produce, equip-
ment, and groceries are shipped by the Atlanta warehouse to the
Company's stores in States other than Georgia. The Atlanta ware-
house services 125 of the Company's stores in the State of Georgia,.
2 in the State of South Carolina, 3 in the State of Alabama, and 35-
in the State of Tennessee., The Company stipulated at the hearing that
1 Retail Clerks International Protective Association did not appear at the hearing
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 1105
it is engaged in interstate commerce within the meaning of Section 2
(6) of the Act. The Company employs approximately 240 employees
at its Atlanta warehouse.
H. THE ORGANIZATIONS INVOLVED
United Retail and Wholesale Employees of America is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting employees of the Company to membership.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers, Local Union No. 728, is a labor organization affiliated
with the American Federation of Labor, admitting employees of the
Company to membership.
III. THE QUESTION CONCERNING REPRESENTATION
On April 17, 1941, the United requested the Company to recognize
it as the representative of the Company's warehouse employees. The
Company refused to grant such recognition for the reason that it had
entered into a contract with the Teamsters.2
On February 27, 1939, the Company and the Teamsters executed
two closed-shop contracts, one covering all warehouse employees and
the other extending to truck drivers and helpers. The contracts
were for the term of a-year, from February 27, 1939, to February
27, 1940, and thereafter until a new contract was signed or the con-
tract was cancelled after the expiration date upon notice by either
party.' On August 12, 1940, these contracts were supplanted by
two other contracts, which were substantially a renewal of the original
contracts but omitted foremen from the bargaining unit. Section
10 of the 1940 contracts states : "This agreement shall be in full force
and effect from 8-12-40 to 2-27-41 inclusive, and thereafter until
a new agreement has been consummated and signed; or this agree-
ment, after the above expiration date has, upon notice, been cancelled
or terminated by the Employer, or by the Local Union with the
sanction of the International Union."
On January 27, 1941, the Teamsters submitted to the Company
a proposed contract. Its only difference from the 1940 contract was,
in general, an increase in the wage scale. During March the Team-
sters and the Company met in several conferences; the Company in
each instance' refused to sign the proposed contract but offered to
extend the 1940 contract. On April 4, 1941, at a meeting of Local
No. 728, the Teamsters decided to extend the previous contract for
2 Local Union No. 728 was chartered by International Brotherhood of Teamsters,
Chauffeurs , Warehousemen , and Helpers In June 1937
3 Testimony In the record indicates that these contracts contained provisions Identical,
with the exception of the dates, to Section 10 of the 1940 contracts , set forth below.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another year by a majority vote of those present at the meeting."
On April 7, 1941, the business representative of the Teamsters orally
notified the Company of its decision to extend the 1940 contract for
another year and requested the Company to sign a memorandum
which would be submitted shortly thereafter. On April 17, 1941,
the Teamsters offered a memorandum which the Company refused
to sign for the reason that it set forth two grievance matters which
had been discussed and settled previously. On April 24, 1941, the
Teamsters submitted a second memorandum which was signed by
the Company's officials approximately 2 weeks later. The mem.
orandum stated, "This is to advise that we as Representatives of this
Organization have been authorized to inform you that we are ready
to renew the two agreements now in effect between this Organization-
and your Company . . . . The purpose of this letter is to confirm
by signatures of Representatives of the Company and the Union our
agreement to renew the two contracts which would have expired
February 27, 1941. It is our understanding that the effect of this
letter will be to extend these agreements until February 27th,
1942...."
The Company and the Teamsters contend that the 1940 contract
constitutes a bar to a' present investigation and determination of
iepresentatives, since it was renewed on April 7, 1941, when the
representative of the Teamsters called the Company and informed
it that the Teamsters had agreed to renew the 1940 contract. The
Teamsters further contends that the request for a written memo-
randum of the agreement to renew the 1940 contract was merely for
the purpose of its records and files.
As indicated above, the contract between the Company and the
Teamsters specifically provided that it should be in effect until a
new agreement had been consummated and signed. The request of the
Teamsters for a written and signed memorandum agreement to renew
the 1940 contract when considered in the light of that provision in-
dicates that the parties did not consider the oral agreement to extend
the 1940 contract, made by the parties on April 7, 1941, to be binding
until the memorandum had been signed. The fact that the Company
refused to sign the first memorandum submitted by the Teamsters
further demonstrates that the Teamsters was not content with a
simple renewal of the 1940 contract but was still attempting to en-
large the scope of the 1940 contract by including provisions covering
grievances which had previously been settled. It. is also significant
that since February 27, 1939, virtually the same contract had been
4 Local No 728 has more than 700 paid-up members and has contracts with 25 or 26
employers. The members voting to extend the contract with the Company were not limited
to those who were employed by the Company but included the entire membership present
at the meeting on April 4, 1941.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 1107
in effect between the Teamsters and the Company since the subse-
Tjuent contracts were, in the main, renewals of the original contract.
In view of these circumstances we find that the August 12, 1940, con-
tract did not renew until early in May 1941, after the Company had
notice of the United's claim to representation, and we, therefore,
find that the renewal agreement between the Teamsters and the Com-
pany does not constitute a bar to an investigation and certification of
representatives.'
Statements of the Regional Director introduced into evidence at
the hearing show that the United and the Teamsters each represent
a substantial number of employees in the unit found below to be
appropriate.6
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 Company and the United contend that all warehouse em-
ployees at the Company's Atlanta warehouse, including truck drivers
and helpers, but excluding supervisory and clerical employees, butch-
ers, and employees of the bakery shop, constitute a unit appropriate
for the purposes of collective bargaining.?
The Teamsters is in substantial agreement with the unit sought
by the United; however, the Teamsters would include in the unit
four colored porters employed in the bakery shop. The United
would exclude these employees from the unit. The record discloses
5 Cf. Matter of Rosedale Knitting Company and Rosedale Employees Association,
23 N L R B . 527; Matter of Lewis Steel Products Corp. and Local 1225 of the United
Electrical Radio & Machine Workers of America, C. 0. 1, 23 N L. R B. 793.
9 The United submitted to the Regional Director 82 membership cards, of which 50 were
dated between April 11 , 1941, and June 5, 1941 , and 32 were undated. The Regional
Director found the signatures on all cards to be genuine and 75 to be ' the names of
ipersons on the Company 's pay roll of June 18 , 1941. There are 119 employees within
the unit herein found appropriate.
The Regional Director also reported that under the closed -shop agreements between
the Teamsters and the Company , all employees in the unit found below to be appropriate
have paid dues in the Teamsters and are members in good standing in the Union.
4 The 1939 and 1940 contracts between the Company and the Teamsters extended to all
such employees as well as to the four colored porters employed in the bakery shop
•discussed below.
450122-42-vol 33-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there are colored porters in the warehouse who perform similar
work and who are included in the unit sought by the United. -Fur-
thermore, the Teamsters in the past has admitted the colored porters
in the bakery shop to membership and has bargained for them because
they were not eligible for membership in the Bakery Union, being
unskilled workers. In view of these circumstances, we shall include
them within the unit.
We find that all warehouse employees of the Company's Atlanta
warehouse, including truck drivers and helpers and the four colored
porters in the bakery shop, but excluding all other employees in
the bakery shop, supervisory and clerical employees, and butchers,
constitute a unit appropriate for the purposes of collective bargain-
ing, and that said unit will insure to the employees of the Company
the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of the employees of the Company can best be resolved
by means of an election by secret ballot. At the hearing, the United
requested the use of any pay roll between April 17 and the date of
the hearing for the purpose of determining eligibility to Vote.' The
Company urged the use of the pay roll immediately preceding the
date of the hearing or the date of the Direction of Election for such
purpose. The Teamsters took no position as to the eligibility date. In
accordance with our usual procedure, we shall direct that the em-
ployees of the Company eligible to vote in the election shall be those
in the appropriate unit who were employed during the pay-roll pe-
riod immediately preceding the date of the Direction of Election
herein, subject to such limitations and additions as are hereinafter
set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire-
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Great Atlantic & Pacific Tea' Company,
Atlanta, Georgia, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
2. All warehouse employees of the Company's Atlanta warehouse,
including truck drivers and helpers and the four colored porters
in the bakery shop, but excluding all other employees in the bakery
shop, supervisory and clerical employees, and butchers, constitute a:
THE GREAT ATLANTIC & PACIFIC TEA COMPAINY 1109
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of the
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with The Great Atlantic & Pacific Tea Company , Atlanta, Georgia,
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 supervision 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, Section 9, of said Rules
and Regulations , among all warehouse employees of the Company's
Atlanta warehouse , who were employed during the pay-roll period
immediately preceding the date of this Direction of Election , including
truck drivers and helpers , the four , colored employees in the bakery
shop, and employees who did not work during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing all other employees in the bakery shop , supervisory and clerical
employees , butchers , and employees who have since quit or been dis-
charged for cause , to determine whether they desire to 'be represented
by United Retail and Wholesale Employees of America , affiliated
with the Congress of Industrial Organizations , or by International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers,
Local Union No. 728, affiliated with the American Federation of
Labor , for the purposes of collective bargaining , or by neither.