Retail Clerks International Association

RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L. 581 RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L., AND RETAIL CLERKS UNION, LOCAL 648 and SAFEWAY STORES, INCORPORATED RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L., AND RETAIL CLERKS UNION, LOCAL 541 and SAFEWAY STORES, INCORPORATED RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L., AND RETAIL CLERKS UNION, LOCAL 373 and SAFEWAY STORES, INCORPORATED RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L., AND RETAIL CLERKS UNION, LOCAL 839 and SAFEWAY STORES, INCORPORATED RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L., AND RETAIL CLERKS UNION, LOCAL 1532 and SAFEWAY STORES, INCORPORATED. Cases Nos. 20-CB-43, 2O-CB-4.5, 20-CB-46, 0O-CB-47, and 00-CB-60. October 1, 1951 Supplemental Decision and Amended Order Upon charges duly filed by Safeway Stores, Incorporated, herein sometimes referred to as Safeway, against Retail Clerks International Association, A. F. of L., and the above-enumerated locals, herein re- ferred to as Respondents, the Regional Director for the Twentieth Region duly issued his complaint dated December 31, 1948, alleging in part that the said labor organizations had refused to bargain collectively with Safeway in violation of Section 8 (b) (3) of the Act, as amended. Thereafter, pursuant to stipulations entered into between the Gen- eral Counsel and the Respondents on September 29, 1949, in settle- ment of the cases, the Board issued on November 3, 1949, its decision aild orders directing the Respondents in paragraphs 1 (b) of the respective orders not to "Refuse to bargain collectively with Safe- way for the employees in the unit described in paragraph IV of the stipulation . . . by insisting or demanding as a condition of such bargaining that Safeway bargain collectively for the supervisory employees of Safeway within the meaning of Section 2 (11) of the Act...." The Respondents having consented to the entry of a decree of enforcement, the United States Court of Appeals for the Ninth Cir- cuit entered on January 14, 1950, its decree enforcing the Board's orders, which decree contained the same prohibitory language as quoted above. Thereafter on May 18, 1950, the Board petitioned the aforesaid Court for a rule to show cause why Retail Clerks International Asso- ciation, A. F. of L., and Retail Clerks Union Local 648, two of the named Respondents, and certain named individuals should not be 96 NLRB No. 83. 974176-52-vol. 96-35 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adjudged in civil contempt for refusing to obey the Court's decree. The petition alleged that location managers were supervisory em- ployees within the meaning, of Section 2 (11) of the Act, and that the Respondents had violated the Court's decree by refusing to bargain collectively with Safeway for employees in the designated unit unless Safeway agrees to certain demands of the Respondents, allegedly for the benefit of location managers. On January 2, 1951, after sundry proceedings before the Court, the Court issued its order 1 remanding this case to the Board. ... to permit it, if it shall be so advised, to take testimony and to make appropriate findings as to whether location managers should or should not be included within the prohibitory language quoted above. Should the Board undertake such further hear- ing and supplement its order in accordance with its findings, it will then be in a position to petition this Court for a further decree of enforcement. Pursuant to- said remand, the Board reopened the record in this proceeding and ordered that a hearing be held before a Trial Exami- ner to determine whether location managers are supervisory em- ployees within the meaning of the pertinent provisions in the Board's orders. Accordingly, a hearing was duly held before Wallace E., Royster, Trial Examiner. On March 22, 1951, the Trial Examiner issued his Intermediate Report in the above-entitled proceedings, finding that location mana- z ers are supervisory employees, within the meaning of Section 2 (11) of the National Labor Relations Act, as amended, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Trial Examiner's denial of cer- tain motions characterized in the Intermediate Report as "designed to broaden the scope of the inquiry," but filed no exceptions to the Trial Examiner's finding that location managers are supervisors, within the meaning of Section 2 (11) of the. Act as amended. The Respondents also filed with the Board, together with a support- ing brief, certain motions similar to those filed with the Trial Ex- aminer, requesting the Board to modify the stipulations and the orders herein by striking therefrom the paragraphs which enjoined the Respondents from refusing to bargain collectively for employees in the designated unit on condition that Safeway bargain for its supervisory employees,2 contending that the provisions in question go beyond the power, jurisdiction, and authority of the General Counsel to agree to, and the Board to order, in that said provisions I N. L. R. B. v. Retail Clerks International Association , A. F. L., and Retail Clerks Union, Local 648, et al., 186 F. 2d 371. 2 The Respondents also moved to strike certain related paragraphs from the complaint. RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L. 583 limit and proscribe rights protected by the Constitution and the National Labor Relations Act. In addition, the Respondents request dismissal- of all further proceedings in the matter, contending that the course of conduct of Local 648 and the International relied upon is not violative of the Board's order or the Court's decree. Finally, the Respondents urge that no further order be entered herein except one granting the motions in question. The General Counsel3 and Safeway filed briefs in opposition to the Respondents' motions. The Respondents' request for oral argument is hereby denied, as the record and their brief, in our opinion, adequately present the issues and the position of the Respondents. Safeway contends that under the terms of the remand, the Board is limited to a determination of the supervisory status of location managers and is without authority to consider the Respondents' mo- tions.4 However, we agree with the Respondents that the Court's remand order vested in the Board such broad discretionary powers as to warrant consideration of the Respondents' motions. Having duly considered these motions, and all briefs filed, we find that they raise nothing not heretofore considered by the Board. Accordingly, said motions are hereby denied as without merit. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed to the extent consistent herewith. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings of the Trial Examiner that location managers are supervisory employees within the meaning of the Act. Amended Order Upon the basis of the findings of fact herein, the stipulation, and the entire record in this case, and pursuant to the remand of the United States Court of Appeals for the Ninth Circuit, the National Labor Relations Board hereby amends its order of November 3, 1949, in Case No. 20-CB-43, in respect to paragraph 1 (b) thereof, so that the same shall read as follows : Retail Clerks International Associa- tion, A. F. of L., and Retail Clerks Union, Local 648: 8 The General Counsel moved for leave to file an opposition to the Respondents' motions after the expiration of the time for such filing. In the absence of any objection from the other parties , this motion is hereby granted, and the opposition filed has been considered. 4 Although in its opposing brief, Safeway asked leave to file affidavits and written argu- ment should the Board undertake to consider the substantive questions raised by the Respondents' motions, we find it unnecessary to consider this request in view of our disposition herein of the Respondents' motions. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Shall not : (b) Refuse to bargain collectively with Safeway for the employees in the unit described in paragraph IV of the Stipulation in Case 20-CB-43 by insisting or demanding, as a condition to such bar- gaining, that Safeway bargain collectively for location managers or other supervisory employees of Safeway within the meaning of Section 2 (11) of the Act. CHAIRMAN HERZOG took no part ]n the consideration of the above Supplemental Decision and Amended Order. Intermediate Report STATEMENT OF THE CASE The National Labor Relations Board, having by appropriate order dated Feb- ruary 6, 1951, reopened the above-entitled proceeding and directed that a further hearing be held before a Trial Examiner and due notice thereof having been given, a hearing was held before the undersigned duly designated Trial Exam- iner in San Francisco, California, on March 1, 2, and 6, 1951, for the purpose of taking testimony as to whether "location managers" are "supervisory em- ployees" within the meaning of the pertinent provision of an order of the Board heretofore entered in these cases. All parties were represented by counsel, par- ticipated in the hearing, and were permitted to examine and cross-examine wit- nesses and to introduce evidence relative to the issue. At the opening and at the close of the hearing, counsel for the Respondents' made a series of motions designed to broaden the scope of the inquiry. Such motions were denied. All parties were given opportunity to file briefs with the Trial Examiner, and a brief has been received from counsel for the Employer. Upon the record made pursuant to the notice of the reopened hearing and from my-observation of the witnesses, I make the following: FINDINGS OF FACT Safeway Stores, Incorporated, herein called the Employer, operates a number of retail food establishments in northern California and in and about the city of San Francisco in which are employed location managers--a category of employee which is the subject of this Report. The Employer offered uncontradicted and credited evidence which establishes that it now has approximately 165 stores in the area here concerned-about 50 less than the number which were in opera- tion a year or two ago. In each store is employed a location manager who, according to the testimony of witnesses including those called by the Respondent, has authority on behalf of the Employer to direct the efforts of the clerks attached to the store. Depending upon the size of the establishment, the number of clerks ranges from 3 to 30. For a number of years the hours, wages, and conditions of employment of both the clerks and the location managers have been covered by agreements between the Respondent and the Employer. In 1949 the union con- tract minimum for managers in the entire area ranged from $92.50 to $117 a week. The contract provisions for head meat cutters (generally the next highest paid position in a store) ranged from $78 to $104.33. The third highest classifica- tion, journeyman meat cutter, ranged from $73 to $90.95. 1 The union locals named in the caption are herein so designated. RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L . 585 Location managers are supplied by the Employer with an operating manual 'which says that the location manager is the sole employer representative in the retail location and empowers and directs him to supervise directly or in- directly the work of all location employees; to interview prospective employees and to employ and terminate workers ; to provide training and instruction for employees ; to organize and assign all work ; and to handle complaints of cus- tomers. Witnesses for the Respondent, all former location managers, testified, in sum, that they performed for the most part the same work as the clerks in the stores, that although they had authority to direct the efforts of the clerks, such direction was of a routine nature, and that hiring generally was done through the office of the district manager or the employee relations manager. These witnesses testified further, in effect, that employees in the stores were not terminated except after consultation with and by authority of the district manager. Witnesses for the General Counsel and the Employer, principally location managers, testified that they possessed authority, and exercised it, to hire employees, that they sometimes arranged with no more "than the perfunctory approval of higher management officials for the transfer of employees between stores, that promotions to head clerk and even to location manager were made upon their recommendations, that they exercised independent judgment in determining if an employee would be charged for time off of less than a full day, that they effected discharges from their stores sometimes after consultation with the district manager and sometimes without his prior knowledge, that they had authority to reject any worker sent to them by the district manager whether newly hired or transferred, that their direction of employee was not of a routine nature but required the exercise of Independent judgment In order to accommo- date the needs of the situation to the number and capacity of the clerks avail- able for duty on any certain day, and.that they alone transmitted orders to the clerks working under their direction, determined working assignments, and in general were the actual, effective, and responsible managers of the stores to which they were assigned. All witnesses testified that location managers were authorized and directed to adjust prices on perishable commodities in order to avoid loss and to see to it that the stores were properly stocked and that all merchandise was cor- rectly priced. Even upon the testimony of Respondent's witnesses, the conclusion must be reached that location managers are supervisors. But aside from this, I am convinced that these witnesses either, when in the Employer's service, did not avail themselves of the authority given, them or were reluctant to admit in this proceeding the true extent of that authority. I believe that the testimony of the witnesses called by the General Counsel and the Employer accurately and truthfully presents the facts concerning the authority of location managers. I find that location managers have, and at all times material herein have had, authority in the interest of the Employer, to hire, transfer, promote, dis- charge, assign, or discipline other employees either by direct action or by effective recommendation and that in fact and in law location managers are supervisors within the meaning of Section 2 (11) of the National Labor Relations Act, as amended.