Grand Union Co.

GRAND UNION CO. 685 Case No. 19-RC-1968 is therefore denied. As the relief treating en- gineer works only one shift a week as a treating engineer and the re- mainder of the time as a production employee, we find his interests are more closely allied with those of the production and maintenance employees, and shall include him in the production and maintenance unit. Accordingly, we shall direct an election in the following voting groups of employees employed at the Employer's Quendall, Washi^ 9- ton, pole treating plant : A. All treating engineers, excluding all other employees, the relief treating engineer, maintenance employees, office clerical employees, guards, and supervisors as defined in the Act. B. All production and maintenance employees, excluding treating engineers, office clerical employees, guards, and supervisors as defined in the Act. If a majority of the employees in voting group A select either of the labor organizations seeking to represent them separately, those employees will be taken to have indicated their desire to constitute a separate bargaining unit, which the Board, under these circumstances, finds bo be appropriate for purposes of collective bargaining and the Regional Director conducting the election is instructed to issue a cer- tification of representatives to the labor organization seeking such unit. On the other hand, if a majority of the employees in voting group A do not vote for one of the labor organizations seeking to represent them in a separate unit, that group will appropriately be included in the production and maintenance unit and their votes will be pooled with those in voting group B,° and the Regional Director conducting the election is instructed to issue a certification of representatives to the labor organization selected by a majority of employees in the pooled group, which the Board, in such circumstances, finds to be a single appropriate unit for purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] 6 If the votes are pooled they are to be tallied in the following manner : The votes for the union seeking a separate unit shall be counted as valid votes , but neither for nor against any union seeking to represent the more comprehensive unit ; all other votes are to be accorded their face value whether for representation in a union seeking the comprehensive group or for no union. Grand Union Co. and Robert E. Gray, Petitioner. Case No. d-RC- 8620. July 12,1957 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 Samuel Korenblatt, 118 NLRB No. 83. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing 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 [Members Rodgers, Bean, and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. The Petitioner and International Brotherhood of Teamsters, Chauffeurs, Warehousemen R Helpers of America, Local 294,, AFL-CIO, the intervening labor organization herein, claim to repre- sent employees of the Employer. 3. The Employer and Intervenor contend that no question concern- ing representation exists because a current collective-bargaining agreement between them bars this proceeding. The Intervenor also contends that the petition should be dismissed for the reason that the move which culminated in the filing of the instant petition was promoted, assisted, and dominated by the Employer. The contract urged as a bar by the Employer and Intervenor was executed on December 18, 1956, effective from December 9, 1956, to February 17, 1959, and covered the Employer's Waterford, N ew York, warehouse, excluding the bakery department employees. The origi- nal petition in this case was filed on December 26, 1956, and an amended petition was filed on January 17, 1957, both petitions seeking a unit of warehouse employees, including those in the .bakery, depart- ment.' Although the petition of December 26 followed the contract, the Petitioner, relying upon the Board's General Electric X-Ray rule,2 contends that no contract bar exists because he made an effective claim of representation on behalf of the warehouse employees on December 17, less than 10 days before the original petition .was filed. Whether such a claim of representation was made is in dispute herein. On the evening of December 17 the Petitioner met with Employer representatives, including President Shield of the Employer, to dis- cuss the labor situation at the Employer's warehouse. At this meeting the Petitioner handed the Employer's representatives an unsigned carbon copy of a designation form theretofore prepared by him which contained the following material language : 3 WE, the undersigned, hereby designate ROBERT E. GRAY, in attorney whose office is located at 251 River Street, Troy, New York, as our representative for collective bargaining purposes to 'The original petition delineates the unit by job classifications whereas the amended petition describes the unit as one embracing warehouse employees. It is clear from the record, as conceded by Employer, that both petitions cover the same employees. 2 General Electric X-Ray Corporation, 67 NLRB 997. 3 Although employee Schultz testified that the designation forms were not prepared by Petitioner until sometime after the contract was executed on December 18, the weight of the evidence is clearly to the contrary. GRAND UNION CO. 687 negotiate and conclude on our behalf with GRAND UNION CO., an agreement covering our wages , hours, working conditions and any other matter subject to collective bargaining under National Labor Relations Act. We hereby request that GRAND UNION CO. recognize Mr. Gray as our collective bargaining representative and negotiate a collective bargaining agreement with him as our representative. When this heading of the form had been read by those present, Peti- tioner offered to produce designation forms carrying the signatures of 83 warehouse employees. Shield declined the offer, stating in effect that he did not doubt its validity but that he was merely seeking Petitioner's assistance in meeting the Intervenor's threat to strike on the following day unless it was granted a contract.4 Upon returning home late that night Petitioner telephoned the following telegram to Shield : Confirming oral notice heretofore given be advised that I have been designated in writing by substantially more than a majority of the Waterford warehouse employees of Grand Union Co. as the bargaining agent for these persons and hereby formally demand recognition as said bargaining agent. I am immediately available to discuss with you or your designated representative the terms of an employment contract covering my people and their fellow employees. Employer's counsel stated at the opening of the hearing that Em- ployer did not receive or have knowledge of such a telegram. No testimony was adduced by the Employer in this connection. On the basis of all the foregoing, and the entire record, we find that an effective claim for representation of the warehouse employees by the Petitioner antedated the contract in question. As that claim was followed within less than 10 days by a petition, the agreement of December 18 cannot operate as a bar.5 4 The record satisfies us that 5 designation forms containing 83 signatures had been submitted to Petitioner before the meeting and that a sixth was in the hands of an employee soliciting additional signatures. While 2 witnesses who represented Employer at the De- cember 17 meeting did not recall that Petitioner claimed to have signed designations in his possession, Petitioner's testimony shows that his offer to exhibit signed forms was directed to Shield in the course of a meeting which consisted of "constant talk for two hours." Shield was not called to testify in the case. It is noteworthy that one of the afore- mentioned witnesses recalled a "reference to more than 80 names" during the meeting and that the other quoted Petitioner as stating, in connection with the number of employees he claimed to represent, that "There is a petition that contains 80 names or better and there is a petition out that will carry more names." Both these witnesses testified that it was their impression that Petitioner was present at the meeting in the role of legal representa- tive of warehouse employees opposed to representation by the Intervenor rather than as the representative of those employees for bargaining purposes. 5General Electric X-Ray Corporation, supra; Associated Food Distributors, Inc., 109 NLRB 574. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As for the additional ground advanced by Intervenor for dismissing the petition, it is plain that its allegations of Employer assistance and domination are in effect unfair labor practice charges and the Board does not litigate such charges in a representation proceeding.' An appropriate remedy for the unlawful conduct alleged may be obtained in an unfair labor practice proceeding designed to adjudicate such matters, if the allegations are found supported by evidence. We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties are agreed as to the appropriateness of a warehouse unit, except that the Employer and Intervenor would exclude the bakery department employees whereas Petitioner would include them. The 10 employees in the bakery department are engaged in making doughnuts which are sold in the Employer's retail grocery outlets. Experience is not a prerequisite for such employment, and all ware- house employees are hourly paid, enjoy the same benefits and privi- leges, and work under the same ultimate supervision. Prior to the execution of the December 18, 1956, contract, which excluded bakery department employees from the unit covered, there was interchange of employees between the bakery and other departments. Under all the circumstances, we find that the bakery department employees have interests sufficiently similar to those of the other warehouse employees to warrant their being joined in the same unit. We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec tion 9 (b) of the Act: All employees employed at the Employer's Waterford, New York, warehouse, including bakery department em- ployees, but excluding office clerical employees, watchmen, guards, professional employees, trucking department employees, inspectors,; and supervisors as defined in the Act. 5. The Intervenor urges that no election be directed until after the disposition of unfair labor practice charges filed against it and the Employer by the Petitioner. The pending charges allege Section 8 (b) (1) (A) and (2) violations by the Intervenor and Section 8 (a) (1) and (3) violations by the Employer. However, the Petitioner has waived the matters contained in these charges as a basis for objection to any election that might be directed herein. In the circumstances, we see no reason to delay this proceeding and shall, in accordance with our usual practice, direct an immediate election.? [Text of Direction of Election omitted from publication.] U 131-States Company, 117 NLRB 86. 7 J. V. Reed & Company, 105 NLRB 721.