Union Premier Food Stores, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1938

10 N.L.R.B. 370 (N.L.R.B. 1938)

In the Matter Of UNION PREMIER FOOD STORES, INC., A PENNSYLVANIA-
CORPORATION; THE FOOD FAIR, INC. OF PENNSYLVANIA, A PENNSYL-
VANIA CORPORATION THE FOOD FAIR, INC., A NEW JERSEY CORPORA-
TION and UNITED RETAIL & WHOLESALE EMPLOYEES OF AMERICA,
AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION
Case No. R-859.-Decided December 8, 1938
Retail Grocery and Food Products Industry-Investigation of Representatives:
controversy concerning representation of employees : rival organizations ; con-
troversy as to appropriate bargaining units-Units Appropriate for Collective
Bargaining : where considerations determinative of appropriate unit are such
that either of two contentions is valid, decisive factor is the desire of the
employees involved ; determination of dependent upon results of separate elec-
tions-Representatives : eligibility to participate in choice : part-time em-
ployees -Elections Ordered
Mr. Joseph Castiello, Mr. Geoffrey Cunniff, and Mr. Samuel G.
Zack, for the Board.
Mr. William B. Rudenko, Mr. B. L. Barkan, and Mr. Harry Shapiro,
all of Philadelphia, Pa., and Mr. Louis Stein, of Union City, N. J., for
the Companies.
Mr. Nathan Ziserinan, of Philadelphia, Pa., for the United.
Mr. Edward Davis, of Philadelphia, Pa., for the Association.
Lour F. McCabe cC William J. O'Brien, by Mr. Louis F. McCabe,
of Philadelphia, Pa., for the Amalgamated.
Mr. Albert J. Bader, of Philadelphia, Pa., for the Warehouse Union.
Mr. Victor A. Pascal, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On April 27, 1938, United Retail & Wholesale Employees of Amer-
ica, herein called the United, filed with the Regional- Director for
the Fourth Region (Philadelphia, Pennsylvania) a petition and on
May 12, 1938, an amended petition, both petitions alleging that a
question affecting commerce had arisen concerning the representation
of employees of Union Premier Food Stores, Inc., The Food Fair, Inc.
of Pennsylvania, and The Food Fair, Inc., herein collectively called
10 N. L. R. B., No. 26.
370
DECISIONS AND ORDERS 371
the Companies , and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On May 20, 1938, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,,
ordered an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate hearing upon due notice.
On June 10, 1938, the Regional Director issued a notice of hearing,,
copies of which were duly served upon the Companies , upon the
United, upon Retail Clerks International Protective Association, Food
Clerks and Managers Union, Local 1357, herein called the Association,
and upon Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 195, herein called the Amalgamated , the latter two,
being labor organizations claiming to represent employees directly
affected by the investigation . Pursuant to the notice , a hearing was-
held on June 16 , 17, 20, and 21 , 1938, at Philadelphia . Pennsylvania,
before Mapes Davidson , the Trial Examiner duly designated by the,
Board. The Board , the Company , the United , the Association, the
Amalgamated , and the Storage Warehouse Employees Union, Local
18571 , herein called the Warehouse Union, a labor organization also
claiming to represent employees directly affected by the investigation,,
were represented by counsel 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 several
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.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Union Premier Food Stores, Inc., a Pennsylvania corporation, oper-
ates 12 retail food stores in Pennsylvania which sell meats , groceries,
produce, Seafoods , dairy products , and other food products . It owns
the entire stock of The Food Fair, Inc. of Pennsylvania , a Pennsyl-
vania corporation, which operates nine retail food stores in Pennsyl-
vania, and of The Food Fair, Inc., 'a New Jersey corporation, which
operates . six retail food stores in Maryland and New Jersey. The
Companies maintain storage warehouses in Philadelphia and Balti-
more. Employees are frequently interchanged among the , Companies
:372 NATIONAL LABOR RELATIONS BOARD
and among the various stores and a single pay roll is kept for all the
,employees.
' It was stipulated by counsel for the Companies that, "the approxi-
mate annual sales of the businesses of the three corporations is
$20,000,000"; that "each of the said 27 stores and warehouses sells
to and buys from all of the other stores and warehouses"; that "mer-
^chandise shipments are made interchangeably between stores, ware-
houses and States in which the places of business of the corporations
are located in every possible variety of manner"; that "approximately
^90 per cent of of the merchandise used or handled by the warehouses
,of the three corporations is purchased and shipped to said warehouses
from numerous points outside the state (in which) the particular
warehouse is situated"; that "approximately 60 per cent of the said
-merchandise is in turn'purchased by and shipped to stores outside the
-state in which the particular warehouse is situated."
It was also stipulated that for all practical purposes the Companies
-"constitute interdependent corporations having a unity of ownership,
operations and management," and that they "are now, and have been
-for a long period of time, engaged in interstate commerce and are,
-therefore, subject to the jurisdiction of the National Labor Relations
Board."
II. THE ORGANIZATIONS INVOLVED
United Retail & Wholesale Employees of America is a labor organi-
zation affiliated with the Committee for Industrial Organization, ad-
mitting to its membership all employees of the Companies, except
office workers, supervisors, and superintendents.
Retail Clerks, International Protective Association, Food Clerks
and Managers Union, is a labor organization affiliated with the Ameri-
can Federation of Labor, admitting to its membership, through its
locals, all employees of the Companies, except executives, office em-
ployees, and warehousemen. The jurisdiction of its Local 1357,
according to its president and business agent, includes the territory
'"from Linwood, New Jersey, South to Cape May, North to Easton,
Pennsylvania, and South to New Castle, Delaware," but does not
extend to Maryland.
Amalgamated Meat Cutters and Butcher Workmen of North Ameri-
ca is a labor organization affiliated with the American Federation of
Labor, admitting to its membership, through its locals, employees of
the Companies who work in its meat departments. The jurisdiction
of its Local 195 is limited to employees in Philadelphia.
Storage Warehouse Employees Union,,Local 18571, is -a labor or-,
ganization affiliated with the - American Federation of Labor, ad-
mitting-to its membership warehouse employees, of the Companies.,
DECISIONS AND ORDERS
III. THE QUESTION CONCERNING REPRESENTATION
373
Some time prior to 1938, the Association, the Amalgamated, and the
Warehouse Union, began to organize and thereafter presented to the
Companies proposed agreements covering the clerical employees, the
meat cutters and butchers, and the warehouse employees, respectively.
Although the Companies apparently negotiated with the three labor
,organizations from such time until the early part of 1938, the nego-
tiations failed to result in the execution of any agreements. Accord-
ingly,, picketing of certain of the stores of the Companies began about
March 24, 1938.
During March 1938, the United began an organizational campaign
among the employees of the Companies and it now claims to represent
a majority of such employees within an appropriate unit.
We find that a question has arisen concerning the representation of
employees of the Companies.
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 Companies
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
has led and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. TIIE APPROPRIATE UNIT
The United seeks a bargaining unit composed of all employees of
the Companies, excluding executives, supervisory employees, and office
workers. It states in support of this unit that there is a community
of interest among all of the said employees as regards collective bar-
gaining and that, due to frequent transfer of employees among the
various stores and warehouses and "among the various departments,
more than one bargaining unit is impractical.
The Amalgamated, the Association, and the Warehouse Union, all
affiliated with the American Federation of Labor and herein collec-
tively called the A. F. of L. affiliates, seek three bargaining units
among the employees of the Companies, excluding executives, super-
visory employees, and office workers. They ask for one unit composed
of the warehouse employees of the Companies; a second unit composed
of the meat cutters and butchers of the Companies; and a third com-
posed of the remaining employees of the Companies. They claim
,that there are distinct skilled craft groups among tile.employees, and
147841-39-vol 10-25
374 NATIONAL LABOR RELATIONS BOARD
that more effective bargaining is possible if such employees are es-
tablished in separate bargaining units.
Although the record is not entirely satisfactory as regards the ex-
tent of the transfer of employees among the various stores, ware-
houses, and departments, it appears that some transfer does take place.
It also appears, however, that a number of employees are rather per-
manently assigned to particular types of work and that warehouse
employees on the one hand and the meat cutters and butchers on the
other hand are rather well-defined groups. We feel that the ware-
housemen and the meat cutters, respectively, may appropriately be
established in two separate units or be included in a unit with the
other employees of the Companies. In accordance with our usual
practice under such circumstances, we conclude that the desires of the
employees themselves should be deternminative.' We conclude, more-
over, that the desires of the employees can best be ascertained by elec-
tions by secret ballot. Since it appears from the record that the
jurisdiction of Retail Clerks International Protective Association,
Food Clerks and Managers Union, Local 1357, and Amalgamated
Meat Cutters and Butcher Workmen of North America, Local 195,
does not include all the areas in which stores of the Companies are
situated, we shall place on the ballots the names of the respective
internationals with which the two locals are affiliated rather than
the names of the locals themselves. If an international is designated
as bargaining representative, that organization will be able to deter-
mine through its own procedure what local or locals affiliated with it
are to effectuate the bargaining.
We will, therefore, order the following elections among the follow-
ing employees of the Companies, excluding executives, supervisory
employees, and office workers : One among the warehouse employees
to determine whether they desire to be represented by the United
or by the Warehouse Union, or by neither; one among the meat cutters
and butchers to determine whether they desire to be represented by the
United or by Amalgamated Meat Cutters and Butcher Workmen of
North America, or by neither; and the third among the remaining em-
ployees of the Companies to determine whether they desire to be
represented by the United or by Retail Clerks International Protective
Association, Food Clerks and Managers Union, or by neither. If a
majority of the employees in any group select one of the A. F. of L.
affiliates to represent them, the employees in said group shall consti-
tute a separate bargaining unit. If a majority in any one or more
of the groups accord the United a majority, all the employees in the
i See Matter of The Globe Machine and Stamping Co and Metal Polishers Union, Local[
No 3; Inteinational Association of Machinists, Distiict No 54; Federal Labor Union
IS?88, and United Automobile Workers of America, 3 N. L. R. B 294.
DECISIONS AND ORDERS 375
group or groups which so designate the United shall constitute a single
bargaining unit.
All the labor organizations here involved apparently took the posi-
tion that regular part-time employees of the Companies should be
allowed to participate in any election, but that temporary part-time
employees or transients should be excluded from such participation.
The Companies contend that persons not working full time are tem-
porary employees and that only full-time employees should be deemed
employees of the Companies. If a part-time Worker was employed by
any of the Companies during part of 3 of the 4 weeks immediately
preceding the date of the Direction of Elections hereinafter provided
for, We conclude that he may fairly be considered as a regular part-
time employee. All such employees will be allowed to participate in
the elections herein ordered. Accordingly the persons eligible to vote
in the three elections will be the full-time employees within the three
respective groups specified above who Were employed by the Com-
panies during the pay-roll period next preceding the date of the issu-
ance of the said Direction of Elections and the part-time employees
within said groups who were employed by the Companies during any
part of 3 of the 4 weeks next preceding the said date.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSION or LAW
A question affecting commerce has arisen concerning the repre-
sentation of employees of Union Premier Food Stores, Inc., The Food
Fair, Inc. of Pennsylvania, and The Food Fair, Inc., within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations 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 Re-
lations Act, 49 Stat . 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended , it is hereby
D_ ECTnn that , as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Union
Premier Food Stores , Inc, The Food Fair, Inc. of Pennsylvania, and
The Food Fair, Inc., eletions by secret ballot shall be conducted within
twenty (20) days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Fourth Region,
acting in this matter as agent for the National Labor Relations Board,
376 NATIONAL LABOR RELATIONS BOARD
and subject to Article III, Section •9, of said Rules and Regulations,
among the full-time employees within the groups described below who
were employed by the Companies during the pay-roll period next
preceding the date of the issuance of this Direction and the part-time
employees within the said groups who were employed by the Com-
panies during any part of 3 of the 4 weeks next preceding the afore-
said date, excluding executives, supervisory employees, and office
Workers :
(a) The warehouse employees to determine whether they desire to
be represented by United Retail & Wholesale Employees of America
or Storage Warehouse Employees Union, Local 18571, for the purposes
of collective bargaining, or by neither;
(b) The meat cutters and butchers to determine whether they de-
sire to be represented by United Retail & Wholesale Employees of
America or Amalgamated Meat Cutters and Butcher Workmen of
North America for the purposes of collective bargaining, or by
neither;
(c) All the remaining employees to determine whether they desire
to be represented by United Retail & Wholesale Employees of Amer-
ica or Retail Clerks International Protective Association, Food Clerks
and Managers Union, for the purposes of collective bargaining, or by
neither.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Direction of Elections.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
December 16, 1938
On December 8, 1938, the National Labor Relations Board issued
a Decision and Direction of Election in the above-entitled proceed-
ing, the election to be held within twenty (20) days from the date of
the Direction, under the direction and supervision of the Regional
Director for the Fourth Region. At the request of the-parties, the
Board hereby amends the Direction of Election issued on December 8,
1938, by striking therefrom the words, "within twenty (20) days from
the date of this Direction" and substituting therefor the words, "within
thirty-five (35) days from the date of this Direction."
Mr. EDWIN S. SMITH took no part in the consideration of the above
Amendment to Direction of Election.
10 N. L . R. B., No. 26a.
DECISIONS AND ORDERS
[ SAME TITLE ]
SUPPLEMENTAL DECISION
377
ORDER
AND
SECOND AMENDMENT TO DIRECTION OF ELECTION
,January 5, 1939
On April 27, 1938, United Retail & Wholesale Employees of
America, herein called the United, filed with the Regional Director
for the Fourth Region ( Philadelphia , Pennsylvania ) a petition and
on May 12, 1938, an amended petition, both petitions alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Union Premier Food Stores, Inc., The Food
Fair, Inc. of Pennsylvania , and The Food Fair , Inc., herein collec-
tively called the Companies, and requesting an investigation- and
certification of representatives pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
May 20, 1938, 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 Regula-
tions-Series 1, as amended , ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On June 10, 1938, the Regional Director issued a notice` of hear-
ing, copies of which were duly served upon the Companies, upon
the United, upon Retail Clerks International Protective Association,
Food Clerks and Managers Union, Local 1357, herein called the
Association, and upon Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 195, herein called the Amalga-
mated, the latter two being labor organizations claiming to represent
employees directly affected by " the investigation. Pursuant to, the
notice, a hearing was held on June 16, 17, 20, and 21, 1938, at Phila-
delphia, Pennsylvania , before Mapes Davidson, the Trial Examiner
duly designated by the Board. The Board, the Company, the United,
the Association, the Amalgamated, and the Storage Warehouse Em-
ployees Union, Local 18571, herein called the Warehouse Union, a
labor organization also claiming to represent employees directly af-
fected by the investigation, were represented by counsel and partici-
pated in the hearing.
At the hearing , the United sought a bargaining unit composed
of all employees of the Companies , excluding executives , supervisory
378 NATIONAL LABOR RELATIONS BOARD
employees, and office workers. The Amalgamated, the Association,
and the Warehouse Union, all affiliated with the American Federa-
tion of Labor and herein collectively called the A. F. of L. affiliates,
sought three bargaining units among the employees of the Companies,
excluding executives, supervisory employees, and office workers.
They asked for one unit composed of the warehouse employees of
the Companies; a second unit composed of the meat cutters and
butchers of the Companies; and the third composed of the remain-
ing employees of the Companies.
On December 8, 1938, the Board issued a Decision and Direction
of Elections. On December 16, 1938, it issued an Amendment to
the Direction of Elections. In its Decision, the Board concluded
that the warehousemen and meat cutters, respectively, might appro-
priately either be established in two separate units or be included
in a unit with other employees of the Companies. It held that the
desires of the employees themselves should be determinative and
found that the desires could best be ascertained by elections by secret
ballot. Since it appeared from the record that the jurisdiction of
Retail Clerks International Protective Association, Food Clerks and
Managers Union, Local 1357, and of Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 195, does not include
all the areas in which stores of the Companies are situated, the Board
stated that there would be placed on the ballots the names of the
respective internationals with which the two locals are affiliated
rather than the names of the locals themselves. The Board also
stated that if an international was designated as bargaining repre-
sentative, that organization would be able to determine through its
own procedure what local or locals affiliated with it should effectuate
the bargaining.
The Direction of Elections, as amended, directed that elections by
secret ballot be conducted within thirty-five (35) days from the
date of the Direction, among the full-time employees within the
following groups who were employed by the Companies during the
pay-roll period next preceding the date of the issuance of the Direc-
tion and the part-time employees within the said groups who were
employed by the Companies during any part of 3 of the 4 weeks
next preceding the aforesaid date, excluding executives, supervisory
employees, and office workers : (a) the warehouse employees to de-
termine whether they desire to be represented by United Retail &
Wholesale Employees of America or Storage Warehouse Employees
Union, Local 18571, for the purposes of collective bargaining, or by
neither; (b) the meat cutters and butchers to determine whether
they desire to be represented by United Retail & Wholesale Em-
ployees of America or Amalgamated Meat Cutters and Butcher
DECISIONS AND ORDERS 379
Workmen of North America for the purposes of collective bargain-
ing, or by neither; and (c) all the remaining employees to determine
whether they desire to be represented by United Retail & Wholesale
Employees of America or Retail Clerks International Protective
Association, Food Clerks and Managers Union, for the purposes of
collective bargaining, or by neither. The Board stated that if a
majority of the employees in any group selected one of the A. F. of L.
affiliates to represent them, the employees in said group should con-
stitute a separate bargaining unit and that if a majority in any one
or more group or groups accorded the United a' majority all the
employees in the group or groups which so designated the United
should constitute a single bargaining unit.
By letter dated December 23, 1938, John K. Keane, on behalf of
Retail Clerks Local 692, filed with the Board objections to the inclu-
sion of retail clerks in Baltimore within the scope of the Direction
of Elections. The letter stated that Local 692 was not a party to
the proceedings before the Board and had no notice thereof.
On December 30, 1938, Grocery and Food Clerks Local 1245,
R. C. I. P. A., affiliated with the American Federation of Labor,
filed with the Board a petition stating that it has jurisdiction over
grocery and food clerks in the State of New Jersey; that it has
among its members all persons engaged as grocery and food clerks
by the Food Fair Inc. in the stores located in the town of West New
York, county of Hudson, and the State of New Jersey, and in the
city of Paterson, county of Passaic, and State of New Jersey; that
the New Jersey Food Fair Inc. is not engaged in interstate com-
merce; and that the said local was not made a party to the proceed-
ings and did not have an opportunity to be heard. In its petition
Local 1245 asked that a hearing be held relative to the petition un-
less the Board excludes from its Direction of Elections the grocery
and food clerks "employed by the Food Fair Inc., particularly mar-
kets located in the Town of West New York, County of Hudson, and
State of New Jersey, and the City of Paterson, County of Passaic,
and State of New Jersey" and further asked "a stay of any election
in the State of New Jersey of the grocery and food clerks employed
by the Food Fair pending a determination upon this petition."
In view of the facts here presented, it appears that labor organiza-
tions claiming to represent employees directly affected by the in-
vestigation of the Board were not notified of the proceeding before
the Board and did not have an opportunity to be heard. Under
all the circumstances, we feel it necessary to order the holding of
an additional hearing at which all parties having an interest in the
proceedings may have an opportunity to participate and introduce
testimony, and that it is also necessary to amend the Direction of
380 NATIONAL LABOR RELATIONS BOARD
Elections postponing the elections which have been ordered pending
the additional hearing and a determination of any issues which may
be raised at such hearing.
Upon the entire record in the case, the Board makes the following :
ORDER
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 1, as amended,
IT IS HEREBY ORDERED that the Regional Director for the Fourth
Region provide for an additional appropriate hearing upon due
notice to take further evidence in accordance with this Supplemental
Decision.
SECOND AMENDMENT TO DIRECTION OF ELECTIONS •
The Direction of Elections issued on December 8, 1938, as amended
by an Amendment issued December 16, 1938, is hereby amended by
striking therefrom the words, "within thirty-five (35) days from
the date of this Direction" and substituting therefor the words, "at
such time as the Board may in the future specify."
MR. EDWIN S. SMITH took no part in the consideration of the
above Supplemental Decision, Order, and Second Amendment to
Direction of Election.
10 N. L. R. B., No. 26b.