The Great Atlantic & Pacific Tea Co.

THE GREAT ATLANTIC-& ' PACIFIC TEA COMPANY 355 We find that all cutters and spreaders at the Employer's Los Angeles, California, plant, including markers, but excluding the woolen boy, the bundle girl, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act 6 [Text of Direction of Election omitted from publication in this volume.] 6 In its petition, the Petitioner states that it desires to represent a "ticketer ." It is not clear from the record which employee is meant by this term . If he is a cutter , spreader, marker, or has a community of employment interest such as exists between these employees, he is included in the unit. THE GREAT ATLANTIC & PACIFIC TEA COMPANY and TEAMSTERS UNION CLERICAL WORKERS, LOCAL 521,1 PETITIONER . Case No. 8-RC-1293. February 27, 1952 Decision and Direction of Election Upon a petition duly filed, a hearing was held before Carroll L. Martin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. 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 parties agree that the Intervenor, Retail Clerks Interna- tional Association, Local 880, AFL ,3 is a labor organization within the meaning of the Act. The Intervenor, however, has refused to acknowledge that either Local 521, or the original petitioner, Retail and Wholesale Employer Union, Independent, herein called the In- dependent, is or was a labor organization within the meaning of the Act. The record shows that the Independent, organized in May 1951, was an organization in which employees participated and which ex- isted for the purpose of dealing with employers concerning wages, 1 The name of the Petitioner appears as amended at the hearing and will be referred to herein as Local 521. 2 For reasons set forth in paragraph numbered 2, the action of , the hearing officer in permitting the amendment of the petition is hereby affirmed 2 The Intervenor was permitted to intervene on the basis of its recently expired contract with the Employer , covering the unit sought by the Petitioner. 98 NLRB No. 55. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours, grievances, and conditions of work. Sometime in October 1951, during the progress of the hearing in this case, the Independent affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, and was chartered as Teamsters Union Clerical Employees, Local 521. On October 23, 1951, the membership of the Independent ratified the affiliation and electgd as officers of Local 521, substantially all those persons who had served as officers of the Independent. Other than in the assumption of a new name, the record indicates that there has been no substantial change in the organization. Also unchanged is the relationship of Local 521 to the Employer, as evidenced by the fact that the Employer has agreed to the substitution of the name of Local 521 for that of the Independent in the Board certification covering two other groups of employees.4 Upon the above facts, we find that the Independent was, prior to its affiliation, and Local 521 is now, a labor organization within the meaning of the Act. We find further that the Intervenor and Local 521,1 claim to represent certain employees 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. Local 521 requests a unit of all the employees in the Employer's East Country group of stores," excluding meat department employees and store managers. The Employer takes the same position as the Petitioner. The Intervenor, however, contends that the only appro- priate unit is one consisting of the East Country, West Country, South Country, and Cuyahoga County stores. The Employer is engaged in the retail grocery business, operating a Nation-wide chain of stores. Aside from its headquarters in New York City, it is divided administratively into seven divisions which in turn are subdivided into districts. The central division, with its headquarters in Pittsburgh, Pennsylvania, is divided into the Cleve- land, Columbus, Youngstown, Altoona, and Buffalo districts. The Cleveland district comprises five groups of stores and the warehouse serving these stores 7 All of these groups are presently covered by 4 The units of Cuyahoga County and West Country stores e During the course of the hearing , Local 521 made an adequate and current showing of interest among the employees in the unit requested. 6 This group consists of the stores in the communities of Conneaut, Ashtabula , Fairport Harbor, Geneva, Painesville, Mentor, Madison , Chardon and Willoughby , all in the north- eastern portion of the State of Ohio. The groups and the communities included therein are as follows . Cuyahoga County-Cleveland and balance of county West Country-Lorain , Elyria, Oberlin , and Wellington. South Country=Ashland, Norwalk, Lodi, New London, Grafton, Willard. Veimilion, and Northfield. East Country-see footnote 6, supra. Akron-Akron , Barberton, Cuyahoga Falls, Kent, Mogadore, Wooster , Ellett, Wads- worth , and Medina. All of the above communities are located in the State of Ohio The designations east, west, and south refer to the geographical location of these groups with respect to Cleveland. THE GREAT ATLANTIC & PACIFIC TEA COMPANY 357 collective bargaining agreements, except the East Country group, the contract for that group with the Intervenor having terminated August 1, 1951. The contracts covering the Cuyahoga County and West Country groups are with the Petitioner and were signed following the certification of Local 521 as a result of consent elections in which the Intervenor participated." The dates of the elections were June 30, 1951, and July 7, 1951, for the Cuyahoga County and West Coun- try stores, respectively. The Intervenor is the current representative of the employees in the South Country stores, having been recognized by the Employer following certification in July 1950, after a consent election in which no other union participated. The Akron group of stores is currently represented by Local 698, Retail Clerks Inter- national Association, AFL, under a contract signed after voluntary recognition of that union by the Employer. An examination of the bargaining history of the four groups of stores which the Intervenor asserts form the only appropriate unit, discloses that with the exception of the Petitioner's current contracts covering the Cuyahoga County and West Country stores, all past and present contracts covering these four groups, have been and are uow held by the Intervenor. Thus, the Intervenor represented the four groups of stores as separate units during the following periods : Cuyahoga County stores, 1940 until June 1951; West Country stores,9 1942 until June 1951;10 South Country stores, September 1950 to present; 11 and East Country stores, 1946 to August 1951.12 The record also shows that at various times during 1949 and 1950, the Intervenor sought and obtained consent agreements for union-security authorization elections in each of the four units of stores. These elections, when held, were won by the Intervenor. A similar history of collective bargaining exists for the Akron group of stores repre- sented by Local 698. From the above facts, it is apparent that collective bargaining for the employees in the Cleveland district stores has developed his- torically in such a manner that there are now five separate bargaining units of employees at stores in five distinct geographical areas 13 This pattern of bargaining which has emerged is not, we recognize, in 8 The Independent originally was certified by the Regional Director but following its affiliation with the Teamsters International, the name of Local 521 was substituted in the certificates "In 1949, the stores in wellington and Oberlin were added to the group after the Intervenor had won consent elections and had been certified by the Regional Director. Prior to 1949, the group had been represented by Local 500 which then affiliated with Local 880 1° As noted above, the Intervenor lost the consent elections held during 1951 in the Cuvahoga County and west Country groups 11 The Intervenor was certified as bargaining agent for this group of stores following a consent election in 1950. No other union participated in the election. 12 Except for the consent election at the Chardon store, the Employer's recognition of the Inteivenor as bargaining agent for the East Country stores was voluntary. 13 See footnote 7, supra. 998666-vol 98-53-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conformity with the Employer's administrative unit which the Inter- venor asserts should be the basis of our unit finding. However, the fact that these units of stores have been established with the consent of the Employer and that they exist without following any admin- istrative lines of the Employer's organization, leads us, in this case, to reject the Intervenor's contention that the only appropriate unit is one composed of the four groups of stores. Though ordinarily the Board seeks to establis$ a unit pattern which conforms to the Employer's organizational structure, we cannot ignore a pattern of bargaining which has established units without regard for admin- istrative lines, as in this case, and impose a disruptive finding upon a fixed bargaining pattern 14 We note here that because of the 1951 elections in the Cuyahoga County and West Country groups, the Board is precluded by the Act from directing elections in these groups for 12 months following these elections 1a To find the Petitioner's proposed unit inappropriate would be to deny the employees of the East Country group the privilege of selecting a bargaining repre- sentative for an unreasonable period of time. In view of the bar- gaining history of the East Country stores and of the other stores in the Cleveland district, we believe that a unit of employees of the East Country stores is appropriate. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All employees 18 in the Employer's stores located in Conneaut, Ashtabula, Geneva, Madison, Painesville, Mentor, Fairport Harbor, Chardon, and Willoughby, all in the State of Ohio, excluding meat department employees, store man- agers, professional employees, guards, and other supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] 14 See Kroger Company, 93 NLRB 274, and the cases cited therein 15 As there was no substantial change in the organization of Local 521, we find no merit in the Intervenor's contention that the Petitioner lost its certifications for these groups when it affiliated with the Teamsters International See discussion in paragraph numbered 3, supra See also American Woolen Company, 61 NLRB 1045. 10 The parties stipulated , and we find, that produce department heads, head cashiers, coffee-dairy departments heads , full-time checkers, and assistant managers are not super- visors within the meaning of the Act.