Hill Grocery Co., Inc.

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. 549875-44-vol. 52-36