The Great Atlantic & Pacific Tea Co.

National Labor Relations Board - Board Decisions

Oct 5, 1951

96 N.L.R.B. 660 (N.L.R.B. 1951)

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It has been found that the Respondent , by refusing to negotiate with the Union
during a period when Respondent's employees were not actually working, and by
insisting that the union representatives be accompanied in future negotiations
by a committee of the Respondent 's employees , has refused to bargain collec-
tively. In order to effectuate the policies of the Act, it will be recommended that
the Respondent be required, upon request, to bargain with the Union as the
exclusive representative of its employees in the unit found to be appropriate,
regardless of whether the Respondent's employees are actually working at the
time of the request. It will also be recommended that the Respondent cease and
desist from in any other manner interfering with the efforts of the Union to bar-
gain collectively with it. Cf. N. L. R. B. v. Express Publishing Company, 321
U. S. 426. -
Upon the basis of the above findings of--fact, and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAw
1. Citrus, Cannery Workers and Food Processors, Local Union 24473, AFL, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. The above Union is now, and during all times material herein , has been the
exclusive representative , within the meaning of Section 9 ( a) of the Act, of all
the employees of the Respondent in the unit heretofore found to be appropriate
within the meaning of Section 9 (b) of the Act.
3. By refusing on November 9, 1950 , and thereafter to bargain collectively with
the above Union as the exclusive representative of all its employees in the afore-
said unit, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) of the Act.
4. By said acts, Respondent has interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
thereby engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
THE GREAT ATLANTIC & PACIFIC TEA COMPANY and RETAIL CLERKS
UNION, LOCAL No. 1604 OF SAVANNAH, GA., AFFILIATED WITH RETAIL
CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER. Case No.
10-RC-1494. October 5, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Paul L. Harper, hearing
96 NLRB No. 88.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 661
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed:
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Reynolds.]
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act. -
2. The labor organization involved claims to represent certain em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.4
4. The Petitioner seeks to represent a unit consisting of all em-
ployees of the produce, grocery, and dairy departments in the Em-
ployer's four grocery stores in Savannah, Georgia. The Employer
agrees with the proposed unit, but, unlike the Petitioner, it would
exclude assistant store managers and all part-time employees.
The unit totals approximately 50 emplpy,ees, including all the store
clerks except meat department employees. Each of the 4 stores has a
manager and 3 of them have an assistant manager. Assistant man-
agers regularly substitute for the managers 1 day each week, during
the managers' scheduled day off. They also act as managers 1 hour
each day during the managers' lunch hour, and when the managers
are on vacation or otherwise absent from the store. They assign work
'At the hearing the Employer moved to dismiss the petition on grounds relating to
the compliance status of the Petitioner . The fact of compliance by a labor organization,
which is required to comply , is a matter of administrative determination and it is not
litigable by the parties Moreover , the Board is administratively satisfied that the
Petitioner is in compliance See Sunbeam Corporation, 94 NLRB 844 ; Swift and Com-
pany, 94 NLRB 917; cf. Highland Park Manufacturing Company, 71 S. Ct. 489.
The Employer also moved to dismiss the petition on the grounds that the petition does
not set forth a demand for recognition and a refusal , that the numerical designation
of the petitioning local was misstated on the copy of the petition served upon the Em-
ployer, and that execution of the petition was not proved at the hearing. The motion
is denied because: ( 1) The filing of the petition constitutes a sufficient demand ( Advance
Pattern Company, 80 NLRB 29) ; (2) the identity of the Petitioner was clearly estab.
lished at the hearing and the Employer was not prejudiced by the typographical error
on the copy of the petition ( Holm Tractor and Equipment Company, 93 NLRB 222) ;
and (3 ) the execution of the petition is irrelevant to the issues in a representation pro-
ceeding ( Allen -Smith Luinber Company , Inc, 93 NLRB No 216).
2 The Employer 's motion to strike the Petitioner 's brief as untimely is denied be-
cause the brief was received by the Board in Washington within the extended period
granted by the hearing officer.
3 Contrary to the Employer 's assertion , the record contains clear evidence, and we
find, that the Petitioner exists for the purpose of admitting employees to its membership
and of representing employees in collective bargaining.
4 The Employer moved to dismiss the petition because Retail Clerks International
Association , the Petitioner's parent organization , was not named as a party to the pro-
ceeding. The motion is denied, as the record clearly shows that the only labor organiza-
tion claiming representative status for the employees involved is the Petitioner, and
that representatives of its international union appeared at the hearing only to assist the
petitioning local.
974176-52-vol. 96--43
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the clerks and direct their activities in all respects. The Employ-
er's supervisor of stores in Savannah testified without contradiction
that assistant managers have power to hire or to discharge employees
without consulting the store managers, and he cites three instances of
their exercise of such authority. Upon these facts, it is clear, and we
find, that assistant managers are supervisors as defined in the Act.
We shall therefore exclude them from the unit.
The Employer classifies as part-time employees all persons who
work less than 29 hours weekly. The number of such employees
throughout the stores varies between 5 and 10. They are for the most
part high school students employed principally on Saturdays. Ordi-
narily they work between 9 and 18 hours weekly; during the summer
months they may work as much as 27 hours per week. They do not
handle cash or check out items, but otherwise do work similar to that
of the full-time employees. Their pay rate is comparable to that of
other employees although they do not enjoy the insurance, pension,
and vacation benefits of the full-time workers. The record indicates,
although it is not clear on this point, that the average part-time
employee remains with the Employer for about 6 months, but one
at least has been employed for over 2 years. It thus appears that
the part-time employees are regularly employed at work which is
the same as that performed by full-time employees. We shall there-
fore include them, as regular part-time employees, in the unit. We
also find that they are eligible to vote in the election hereinafter
directed .5
We find that all produce, grocery, and dairy department employees
in the Employer's four stores in Savannah, Georgia, including part-
time employees, but excluding employees of the meat departments,
assistant managers, managers, and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective
bargaining.
[Text of Direction of Election omitted from publication in this
volume.]
5 The Kroger Company , 85 NLRB 6.
WHELAND COMPANY and UNITED STEELWORKERS OF AMERICA, CIO,
PETITIONER. Case No. 10-RC-1313. October 5, 1951
Supplemental Decision and. Certification of Representatives
Pursuant to a Decision and Direction of Elections issued on July
11, 1951,1 separate elections by secret ballot were conducted on August
1 Wheland Company , 95 NLRB No. 18.
96 NLRB No. 95