The Great Atlantic & Pacific Tea Co.

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