Giant Markets, Inc.

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defect precluded the notice from effectively forestalling auto- matic renewal of the contract.3 We find , therefore , that a question exists concerning the rep- resentation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.4 4. We find , in accordance with the agreement of the parties, 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 production and maintenance employees at the Employer ' s paper and plastic container or bag manufacturing plant at Paris, Texas, known as its Betner Division , excluding office clerical employees, professional employees , technical employees , guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 9Augat Bros., 97 NLRB 993; General Motors Corporation, 85 NLRB 234. 4In view of our finding that the contract is not a bar for the reasons indicated above, it is unnecessary to consider the Petitioner 's other allegations relative to this issue GIANT MARKETS, INC., and MORRIS HODIN and SAM HODIN, Co-Partners , trading as GIANT MARKETS and RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, Petitioner. Case No. 4-RC-1964. November 10, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed , hearings were held before Ramey Donovan , a hearing officer of the National Labor Relations Board . The hearing officer ' s rulings made at the hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in this case the Board finds: 1. Giant Markets , Inc., moved to dismiss the petition on two grounds : lack of jurisdiction in the Board , and contract bar. In support of the first ground it alleged that all of the sales made by its seven retail markets were made in the Commonwealth of Pennsylvania , and that all of its purchases were likewise made in that jurisdiction , "being made from M. L. Hodin and Sam Hodin , trading and doing business as the Giant Markets , a wholesale outlet" with its principal office in Scranton , Pennsylvania. Testimony taken at the original hearing in June 1953 indicates that Morris and Sam Hodin for "many" years operated a grocery warehouse and chain of retail stores in the Scranton area as a partnership , but in the fall of 1952 in- corporated the retail operation as Giant Markets , Inc., with Morris Hodin as president and no apparent change in control. The corporation ' s offices are located at the warehouse, 107 NLRB No. 4. GIANT MARKETS, INC. 11 and the bulk of the warehouse operation, known as Giant Markets, consists of servicing the seven retail stores , although some independent stores are also serviced. On this record we find that Giant Markets, Inc., and Giant Markets constitute a single employer within the meaning of the Act. See McCarron Co. and Vare Brothers, 100 NLRB 1537. The record indicates that for the year preceding the June hearing in this matter the Employer's purchases for the retail operation were $3,000,000 and for the warehouse $2,000,000. At the direction of the Board the hearing in this matter was reopened, and on August 26, 1953, additional facts were obtained. It now appears that $1,440,000 of the purchases made by the warehouse are channeled to the Employer's retail stores, of which one-third was "probably purchased outside the State" according to the Employer's testimony. Thus, of those purchases made on behalf of the retail operation through the warehouse, approximately $480,000 constitute direct inflow in interstate commerce. At the August hearing the Employer also testified that meat purchases come directly to the stores, that its meat depart- ment does "30 percent of our stores ' business ," and that "95 percent of the meat products are purchased locally." It thus appears that of the $3,000,000 store purchases, ap- proximately $900,000 represent meat purchases, of which 5 percent, or approximately $45,000, is purchased by the stores from outside the State. Adding this $45,000 worth of direct inflow to the $480,000 coming through the warehouse, results in $525,000 of direct inflow, without reference to other testimony of the Employer concerning the percentage of produce and dairy products purchases coming from outside the State or the percentage of warehouse purchases coming' from outside the State and channeled to independent stores, and further without regard to the undetermined total of indirect inflow in interstate commerce which is implicit in many nationally known products purchased by the Employer through local jobbers. We find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act for this Board to assert jurisdiction .' Hence we deny the Employer's motion to dismiss on the ground of jurisdiction. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. The Employer also seeks to dismiss the petition on the ground of contract bar, urging a contract executed on April 16, 1953, by Giant Markets and Giant Markets, Inc., and by the Intervenor, Giant Market Employees' Association, which has represented its regular employees since 1950. Inasmuch as the petition herein was filed April 15, 1953, it is obvious, apart from other considerations, that the contract was executed 'See Federal Dairy Co.. Inc.. 91 NLRB 638. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD too late to constitute a bar to this petition . 2 We deny the Employer's motion to dismiss on the ground of contract bar. We find that a question affecting commerce exists con- cerning the representation of certain employees of the Em- ployer within the meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act. 4. The Petitioner seeks a unit of all retail store employees, of whom there are 60 to 70 regular employees and 30 part- time employees . It would not include the Employer's 10 office employees , 15 warehouse employees , and 1 mechanic, all of whom work at the warehouse building , and the 5 truck- drivers who work between the warehouse and the retail stores. The Employer and the Intervenor urge a unit of all regular employees , stressing a bargaining history for an all-employee unit existing since 1950 . Portions of the 1952 and 1953 contracts --admitted in evidence after hearing on motion of the hearing officer and without objection by the parties- -contain the definition of the unit as one of "all" employees , although testimony at the hearing indicated that part-time employees had not been covered. No portions of the 1950 or 1951 contracts are in evidence , but there appears no question that previous bargaining has covered employees work- ing at the warehouse building in an overall unit with retail store employees. Clearly the Board , in the absence of bargaining history, has recognized the appropriateness of units such as that sought by the Petitioner , limited to retail store employees of a grocery chain.3 Here, however , the bargaining history has been on a broader basis, with no compelling reason urged to restrict the unit inclusions at this time . In these circumstances we think that the historic unit is appropriate for purposes of collective bargaining , with the addition of part - time employees as found below. As to office employees, it is true that the Board has disregarded bargaining history in refusing to include them in, for example , production and maintenance units in manufacturing concerns .4 However, they are customarily included - -without the precedent of bargaining history--in units of retail selling employees.5 As the unit found appropriate here is essentially a selling unit , no reason appears to exclude the office employees. Part-time employees : The record shows that the Employer's part-time employees are largely high school and college students employed to work on Saturdays and during the late afternoon on weekdays . Their work consists principally of carrying out boxes and bags , although some assist in various store departments . Most of these employees do not work every day and the record does not indicate what is the average 2 See Sprague Electric Company, 81 NLRB 410. 3See Fulton Markets, incorporated , 93 NLRB 3. 4See Heintz Manufacturing Company , 100 NLRB 1521. 5 See S. H. Kress & Co., 92 NLRB 15; see also Nash Boulevard Corp., 98 NLRB 156, foot- note 4. CROSLEY BROADCASTING OF ATLANTA, INC. 13 number of hours worked per week . We find that these part- time employees have sufficient interest in common with regular store employees to require their inclusion in the unit for purposes of representation in collective bargain- ing. 6 However , inasmuch as the record contains so little evidence concerning the regularity of their tenure or their average workweek, we shall permit them to vote in the election directed herein subject to challenge.' 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 of the Employer in the Scranton , Pennsylvania, area , including part -time employees, office employees, ware- house employees , truckdrivers, and mechanics , but excluding guards and supervisors as defined in the Act. 5. As indicated in paragraph 4 above, part -time employees shall be eligible to vote in the election directed herein subject to challenge.7 [Text of Direction of Election omitted from publication.] 6See John W. Thomas & Co., 104 NLRB 868, footnote 15. 7 See Food Fair Stores, 83 NLRB 852, 854; H. P. Wasson and Company, 105 NLRB 373. CROSLEY BROADCASTING OF ATLANTA, INC. and TELE- VISION BROADCASTING STUDIO EMPLOYEES UNION, LOCAL 845, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, A.F.L., Petitioner. Case No. 10-RC-2224. November 10, 1953 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election,' issued by the Board herein on August 18, 1953, an election by secret ballot was conducted on September 16, 1953, under the direction and supervision of the Regional Director for the Tenth Region , among the employees of the Employer in the unit found appropriate in the Decision . At the conclusion of the election, the parties were furnished with a tally of ballots , which showed that of approximately 27 eligible voters, 13 cast valid ballots for the Petitioner , 13 cast valid ballots for the Intervenor , and 1 ballot was challenged. As the challenged ballot was sufficient to affect the results of the election , the Regional Director , pursuant to Section 102.61 of the Board ' s Rules and Regulations , conducted an investigation of the challenged ballot . On September 24, 1953, 1106 NLRB No. 126. 107 NLRB No. 5. 337593 0 - 55 - 3