Hillman's, Inc.

In the Matter of HILLMAN'S, INC. and UNITED GROCERY & PRODUCE EMPLOYEES UNION, LOCAL 329, OF THE RETAIL, WHOLESALE & DE- PARTMENT STORE UNION, CIO Case No. 13-R,3636.-Decided July 3, 1946 Mr. Isaiah S. Dorlvwn, of Chicago, Ill., for the Company. Messrs. Francis Heisler and Charles Walters , and Mrs. Susan Bui^nq, all of Chicago , Ill., for the CIO. Messrs. S. G . Lippman and Vernon A. Housewright , of Chicago, Ill., for the Retail Clerks. Daniel D. Carmell, by Messrs . Lester Asher and Joseph E. Oubbin- of Chicago, Ill., and Messrs. Sidney Lens and Frank Socki, of Chicago, Ill., for the Building Service. Mr. Melvin J. Welles, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Grocery & Produce Employees Union, Local 329, of the Retail, Wholesale & Department Store Union, CIO, herein called the CIO, alleging that a question affecting com- merce had arisen concerning the representation of employees of Hill- man's, Inc., Chicago, Illinois, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert Ackerberg, Trial Examiner. The hearing was held at Chicago, Illinois, on June 10 and 12, 1946. The Company, the CIO, Retail Clerks International Protective Association, AFL, herein called the Retail Clerks, and United Grocery and Produce Employees Union, Local 329, Building Service Employees, International Union, AFL, herein called the Building Service, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties \ ere afforded opportunity to file briefs with the Board. 69 N. L. R. B., No. 34. 282 HILLMAN'S, INC. 283 Upon the entire record in the case, the Board makes the following : FINn1NCS OF FACT 1. '1'111 iu .[NI?ss OF 'rill, ('O1II'.ANY Ifilhnan's, Inc., is an Illinois corporation, with its principal office and place of business in Chicago, Illinois. It owns and operates seven stores in the city of Chicago. where it is engaged in the purchase, prep- aration, and sale of food and grocery products. Approximately 90 percent of the products purchased by the Company is transported to it from points outside the State of Illinois. The gross annual sales of the Company exceed .$5,000,000, of which approximately 2 percent represents products shipped to points outside the State of Illinois. The Company does not contest the jurisdiction of the Board. We find that Hillman's, Inc., is engaged in commerce within the (leaning of the National Labor Relations Act. 11. THE ORGANIZATIONS INVOLVED United Grocery & Produce Employees Uni'un, Local 329, of the Retail, Wholesale & Department Store Union, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. Retail Clerks International Protective Association is a labor or- ganization affiliated with the American Federation of Labor, admit- ting to membership employees of the Company. United Grocery and Produce Employees Union, Local 329, Build- mg Service Employees. International Union, is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership employees of the Company. III. Ti IE QUESTION CON('ERXIXG REPRESENTATION The Company has refused to grant recognition to the CIO as the exclusive bargaining represeutatlve of certain of the Company's em- ployees until the CIO has been certified by the Board in an appropriate unit. 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 (G) and (7) of the Act. IV. TIIE APPROPRIATE UNIT The CIO requests a milt of all retail sales employees of the Com- pany regularly employed for , days or more per week as clerks, por- i Approximately 75 percent of such purchases is made within the State of Illinois 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ters, scrubwomen, elevator operators, window trimmers, watchmen, window washer, cooler men, stock men, checkers, wrappers, and as- sistant departmental managers, in the following departments: gro- cery, coffee and tea, butter and eggs, cheese, delicatessen, bakery, can- dy, wines and liquors, fruit and vegetable, nuts and gifts, assembly, country shipping, grocery packing, receiving room and platform, and candy kitchen; but excluding employees hired for periods of less than 3 days per week, temporary employees, warehouse employees, office and clerical employees, telephone solicitors, designers, employees in the advertising department, the registerman, restaurant, cafeteria, soda fountain and kitchen employees, employees of subsidiaries, buy- ers and assistant buyers, executives, confidential employees, employees in the mayonnaise, nut roasting, ice cream and fruit stuffing depart- ments, employees covered by collective bargaining agreements with labor organizations which did not appear at the hearing in this case 2 and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. The Company, the Building Service, and the Retail Clerks would exclude from the unit employees in the candy kitchen. The Com- pany and the Building Service otherwise agree with the unit proposed by the CIO. But the Retail Clerks would, in addition, include in the unit all employees who work 8 or more hours per week and tele- phone solicitors, and would exclude porters, scrubwomen, elevator operators, window trimmers, watchmen, and the window washer; it takes no position with respect to employees in the country shipping department, and the receiving room and platform department .3 Candy kitchen employees: The Company has approximately 10-1 employees in its candy kitchen, who, unlike the other employees sought by the CIO, are engaged in the manufacture of candy. The candy kitchen is 1 of 5 departments engaged primarily in manufacturing products to be sold in the retail departments of the Conlpany.4 As indicated above, all parties agree to the exclusion of the employees in the 4 other manufacturing departments. The manufacturing depart- ments, wherever located, are under common supervision, and are not supervised by the individual store managers, although they are located 'Testimony adduced at the lien rinz reveals that the Company has agreements with _\ ma 1- garnated Meat Cutters, AFL, for the butchers. Teamsters Union, AFL, for both truck drivers and warehouse emploNees Egg Candleia t'nion, Ah'L for the egg inndlers and with unidentified labor organizations cotiermg the bakers and other crafts ' The Company and the CIO have had collective bargaining agreements in 194.3. 1944, and 1945 The unit requested bi the CIO is substantialh the same as the contract unit, except that employees in the candy kitchen were not included in the contract unit In addition, the contract unit included registermen, but all parties heneni agree that the onli regns- terman, Joseph Feir, is a supervisor } employee and should he excluded The other manufacturing departments ale ma,onnaise nut roasting, ice cre.iai, and fl tilt stuffing, HILLMAN'S, INC. 285 in 2 of the Company's stores. Their supervisor reports directly to the vice president or president of the Company. While employees in the candy kitchen have the same discount privileges, vacations, and hos- pitalization insurance as the retail sales employees, they are on a sepa- rate pay roll, limited to the 5 manufacturing departments, and are hourly paid, whereas the bulk of the retail sales employees are weekly paid. There is very little interchange of employees between the candy kitchen and the retail stores. Since the interests of the candy kitchen employees lie with those of the retail sales employees, and since they have been excluded from the bargaining unit established by contract between the Company and the CIO,5 we shall exclude employees in the candy kitchen from the unit hereinafter found appropriate. Telephone volioitors: The Company employs approximately 27 telephone solicitors, who take orders and solicit business by telephone.6 Although they are engaged in selling, the nature of their work is sub- stantially different front that of the retail clerks, who meet customers face to face, and handle merchandise and money. Furthermore, tele- phone solicitors were not part of the unit established by prior con- tracts between the Company and the CIO. We shall, therefore, ex- clude telephone solicitors from the unit hereinafter found appropriate. Part-time regular employees: Although the Retail Clerks would include in the unit all regular employees who work 8 hours or more per week, previous contracts between the Company and the CIO have included only part-time regular employees who work 3 days or more weekly. Since we do not necessarily consider 3 days per week an un- reasonable criterion, and since this was the basis for determining in- clusion within the unit established by the agreement between the Com- pany and the CIO, we shall include in the unit hereinafter found appropriate only employees who work 3 clays or more per week. Scrubwomen, elevator operators, the window: washer, watclonell and window trimmers: We find no merit in the contention of the Retail Clerks that these employees should be excluded. Although their work differs from that of the retail sales employees, all employees in these classifications perform necessary functions in retail sales establish- ments, and their interests lie with those of the retail sales employees. Furthermore, they have been part of the contract unit established by collective bargaining between the Company and the CIO. We shall, therefore, include scrubwomen, elevator operators, the window washer, watchmen and window trimmers in the unit hereinafter found appropriate. Employees in the country shipping and receiving room and plat- form departments: Since these employees were part of the unit estab- Mattel of C J Petersen and C. F Lytle d/b/a Petersen & Lytle, 60 N L It B 1070. Only oceasioua1I do they go about the store Rlth eustomeis 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fished by contracts between the Company and the CIO, and since there is no objection by any of the parties to their inclusion, we shall include employees in the country shipping and receiving room and platform departments in the unit hereinafter found appropriate. We find that all retail employees of the Company employed for 3 days or more per week as clerks, porters, scrubwomen, elevator op- erators, window trimmers, watchmen, window washer, cooler men, stock men, checkers, wrappers, and assistant departmental managers, in the following departments: grocery, coffee and tea, butter and eggs, cheese, delicatessen, bakery, candy, wines and liquors, fruit and vege- table, nuts and gifts, assembly, country shipping, grocery packing, and receiving room and platform; but excluding employees hired for periods of less than 3 days per week, temporary employees, warehouse employees, office and clerical employees, telephone solicitors, designers, employees in the advertising department, the registernlan, restaurant, cafeteria, soda fountain and kitchen employees, employees of sub- sidiaries, buyers and assistant buyers, executives, confidential em- ployees, employees in the mayonnaise, nut roasting, ice cream, fruit stuffing and candy kitchen departments, employees covered by col- lective bargaining agreements with labor organizations which did not appear at the hearing in this case , and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend 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 REPRE SENT.1Tl\ Es We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election 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 Ilie National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3. as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Hillman's, Inc., Chicago, Illinois, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this HILLMAN'S, INC. 287 Direction, under the direction and supervision of the Regional Direc- tor for the Thirteenth 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 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 and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by United Grocery & Produce Employees Union, Local 329, of the Retail, Wholesale & Department Store Union, CIO, or by Retail Clerks International Pro- tective Association, AFL, or by United Grocery and Produce Em- ployees Union, Local 329. Building Service Employees, International Union, AFL, for the purposes of collective bargaining, or by none of these organizations. MR. GERARD D. RErr.LY took no part in the consideration of the above Decision and Direction of Election.