Krambo Food Stores, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1952

98 N.L.R.B. 1320 (N.L.R.B. 1952)

1320 _ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and may not appropriately be a part of the same collective-
bargaining unit with such employees; 5 accordingly, we shall exclude
them from the unit hereinafter found appropriate.
We find that the following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning of Section
9 (b) of the Act:
All employees and helpers of the Employer at its Oakland Bay
area, California, operations, including those working at the Employ-
er's dumps, but excluding those working at the hog ranch and rag and
bottle operation of the Employer, and excluding office and clerical
employees, shareholders, mechanics, and all supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
5 Cf. Alderwood Products Corporation, Al NLRB 136; Mutual Rough Hat Company, 86
NLRB 440.
KRAMBO FOOD STORES, INC. and GROCERY CLERKS UNION, LOCAL 1469,
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER.
Case No. 13-RC-2379. April 29, 1950E
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the Act, a hearing
was held before Helene Zogg, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and
are hereby affirmed.
Upon the entire record in this case, the Board finds :
- 1. The Employer and the Intervenor, Allied Independent Union,
C. U. A., assert that the Board lacks jurisdiction over the Employer
because its operations are-local in character and do not affect inter-
state commerce. The Intervenor also contends that jurisdiction
should not be asserted in this particular case because the Wisconsin
Employment Relations Board has already exercised jurisdiction over
the Employer and the employees here involved. In addition, the
Intervenor urges the Board to decline jurisdiction in this case because'
the record fails to show that the activities of the five stores, whose
employees the Petitioner seeks to represent, affect interstate commerce.
The Employer is engaged in the operation of 22 retail food stores,
all located within the State of ,Wisconsin. During 1950, its indirect
98 NLRB No. 208.
KRAMBO FOOD STORES, INC. 1321
purchases from outside the State amounted to more than $1,000,000;
and its direct purchases from outside the State amounted to over
$500,000.
On December 7, 1950, the Wisconsin Employment Relations Board
certified the Intervenor as collective bargaining representative for
employees in the stores in question following a hearing and election
also participated in by the Petitioner in this case. On December
21) 19507 the Wisconsin board, following a further election, authorized
the Intervenor to execute an "all-union agreement" with the Employer
on behalf of the employees in the bargaining unit. The Employer
and the Intervenor assert that this Board is precluded from taking
jurisdiction of this matter because the Wisconsin board has already
acted. It is now well settled that the jurisdiction of this Board may
not be ousted by prior State action, even where, as here, all parties
participated in the State proceeding.
There remains the question whether, as the Intervenor urges, we
should consider only the amount of business done by the five stores
whose employees comprise the proposed unit, disregarding the balance
of the Employer's operations. We find no merit in this argument.
It is well established that the Board will consider the total business
of any integrated enterprise, when seeking to determine whether or not
to assert jurisdiction over a part of such enterprise.2
We find that it- will effectuate the policies of the Act for the Board
to assert jurisdiction herein.3
2. The labor organizations involved claim to represent certain
employees of the Employer.4
3. The Employer and the Intervenor assert that their contract,
executed January 29, 1951, for a 2-year term, constitutes a bar to any
present determination of representatives. The Petitioner contends
that, as the contract contains illegal union-security clauses, it cannot
serve as a bar.'
The contract contains the following union-security clauses :
2. Any person to be covered by this agreement shall be hired
only on a 30-day trial basis, during which time he may be dis-
charged by the Employer without recourse. Employees whose
' See LaCrosse Telephone Corp. v Wisconsin Employment Relations Board, 336 U S. 18.
' The Southland Corporation, Oak Farms Dairy Division, 94 NLRB 1563
' Dorn's House of Miracles, Inc., 91 NLRB 632; Federal Dairy, Inc., 91 NLRB 638.
* The Intervenor declined to stipulate that the Petitioner is a labor organization. We
find, in accordance with undisputed evidence in the record , that the Petitioner is a labor
organization
"The Petitioner relies primarily upon the argument that the union-security clauses in
the contract were not authorized pursuant to a union-authorization election , and that the
recent amendments to Section 8 (a) (3) of the Act do not operate retroactively to validate
such clauses. In view of our determination that the clauses are illegal on other grounds,
we find it unnecessary to pass upon this contention.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regular work week is over (15) fifteen hours per week must apply
for membership in the Union and shall work under the pro-
visions of this agreement, and shall thereafter maintain mem-
bership in good standing in the Union in order to maintain his
or her employment.
Employees shall, after thirty (30) days of employment, be-
come members of the Union, and shall maintain membership
in good standing as a condition of employment.
3. All new employees in the bargaining unit whose regular
work week is over fifteen (15) hours shall file application for
membership in the Union and shall become members of the
Union within (30) thirty working days. The Union agrees to
accept all such new employees into membership upon the same
terms and conditions as governed by the admission of others to
such membership. All employees of the Employer covered by
the terms of this agreement shall be members of this Union and
shall remain members thereof in good standing for the duration
of this agreement as a condition of employment.
The Employer and the Intervenor argue that no employee was
required to join the Intervenor in less than 30 days from the effective
date of the contract, and that the contract therefore does not violate
the provisions of Section 8 (a) (3) of the Act. However, it is clear
from the terms of the contract that employees who had more than
30 days of employment before the, effective date of the contract were
required, by the terms of the contract, to become members of the
Intervenor forthwith. We cannot agree with our dissenting col-
leagues that anything in the contract defers the effective date of the
clauses as to such old employees to a time 30 days after execution
of the contract. Accordingly, we find that the contract contains
union-security provisions exceeding the limitations set forth in Sec-
tion 8 (a) (3) of the Act.'
The contract does not, therefore, constitute a bar to a present deter-
mination of representatives.7
4. In accordance with the stipulation of the parties, we find that
all employees of the Employer, employed at its Milwaukee County,
Wisconsin, stores, excluding meat department employees, managers,
assistant managers, casual part-time employees regularly working
less than 15 hours per week, professional employees, and all super-
visors as defined in the Act, constitute a unit appropriate for the pur-
°'National Lead Company, 97 NLRB 651.
7In view of this determination, we find it unnecessary to pass upon the parties'
contentions regarding the existence of a schism in the Intervenor's organization.
KRAMBO FOOD STORES, INC. 1323
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBERS MURDOCK and STYLEs, dissenting :
We disagree with our colleagues' conclusion that the existing con-
tract between the Employer and the Intervenor contains an illegal
union-security provision. In our judgment the contract is suscept-
ible of a reasonable construction under which the union-security
clauses would be legal. The majority finds that the union-security
clauses are unlawful because they fail to provide a 30-day grace
period from the effective date of the contract for old employees hired
prior thereto. We do not so construe the contract. In our opinion
the choice of language used by the parties in clauses "2" and "3" of
the contract reveals their intent to conform to the requirements of
the Act. As to old employees hired prior to its effective date, the con-
tract provides, "Employees shall, after thirty (30) days of employ-
ment, become members of the Union, and shall maintain member-
ship in good standing as a condition of employment." The futurity
of this language, we believe, evidences the intent of the parties to
accord old employees a grace period of 30 days of "employment"
after the contract has become effective before requiring them to
become members of the '.Union." 11
Certainly, this construction of the contract's ,union-security pro-
vision is not unreasonable. The clauses in question are therefore at
least ambiguous in regard to the grace period for old employees.
Under such circumstances, the Board customarily looks to the evi-
dence in order to determine the intent of the parties .9 The record
contains evidence showing that no employee was required by the
contracting parties to join the Union before the contract had been in
effect for 30 days.
Under all the circumstances and upon the entire record in the case,
we are persuaded that the parties intended and executed a union-
security provision in conformity with the requirements of Section
8 (a) (3) of the Act. Accordingly, as the contract will not expire
until January 29, 1953, we would find it a bar and dismiss the petition
herein.l°
s Cf. Standard Brands, Incorporated, 97 NLRB 737.
Newton Investigation Bureau, 93 NLRB 1574; O. B Andrews Company, 89 NLRB 59.
10 We would find no merit in the Petitioner 's contention as to the existence of a schism
in the Intervenor ' s organization for the reason that, as revealed in the record , the so -called
disaffiliation meeting of November 25, 1951, was not a duly constituted official meeting
of the Intervenor 's organization.